Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Sunday, November 30, 2003
Legal Theory Lexicon: Virtue Ethics
What is virtue ethics? Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of the Greek word for virtue.
In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:
Modern Moral Philosophy Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.
The Virtues What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.
The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.
The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.
A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.
Virtue Ethics and Human Good What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons. And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"
Particularism and Phronesis Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.
Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.
Virtue Politics and Virtue Jurisprudence What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.
What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.
In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:
Conclusion While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.
If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!
Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press.
Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press.
Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell.
Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press.
Statman, D. (ed.), 1997, Virtue Ethics, Edinburgh: Edinburgh University Press.
Ethics Updates Page on Aristotle and Virtue Ethics.
Internet Encyclopedia of Philosophy Entry on Virtue Theory
Wikipedia Entry on Virtue Ethics.
Wikipedia Entry on Virtue Jurisprudence.
Online Guide to Ethics and Moral Philosophy: Virtue Ethics
Legal Theory Calendar
At the University of Chicago's Law and Philosophy Workshop, Professor Ulrich Preuss, Freie Universität, Berlin and Visiting Professor, University of Chicago Law School, will present work on comparative constitutionalism.
At George Mason's Philosophy, Politics and Economics series, Peter Grajzl & Peter Murrell (Economics/IRIS, University of Maryland Professions) present Politicans and Institutional Reforms.
At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Tomiko Nagin-Brown (Washington University, St. Louis, School of Law/History) presents Middle class African-Americans' views of desegregation in the era of Brown v. Board of Education.
At the University Chicago's Law and Economics Series, Alan Schwartz (Yale Law School) is presenting.
At the University of Texas Hans Baade presents The Post-Civil War Texas Supreme Court.
At Oxford's IP Seminar, Tina Piper presents The Unpatentability of Medical Diagnostic Methods: A Promise and its Perils.
At Oxford's Private and Commercial Law Discussion Group, Donal Nolan presents The Distinctiveness of Rylands v Fletcher.
At Oxford's Ockham Society, Vladislav Vexler (Oxford) presents Why Isiah Berlin Failed to Ground Liberalism.
At Notre Dame Law School, today through December 5, 2003, a symposium entitled The Changing Laws of War: Do We Need a New Legal Regime After 9/11?
At Northwestern's Law and Economics series, Paul Mahoney (University of Virginia School of Law) presents The Value of Judicial Independence: Evidence from 18th Century England.
At Oxford's CENTRE FOR CRIMINOLOGICAL RESEARCH Seminar Series, Betsy Stanko presents Between the Home Office, PSAs and a real place: a critical reflection on government targets and doing criminal justice.
At Tulane's Center for Ethics and Public Affairs, Thomas Pogge will be speaking.
At NYU's Colloquium in Legal, Political and Social Philosophy, J.H.H. Weiler (NYU School of Law) presents A Constitution for Europe? Some Hard Choices.
At Yale's Legal Theory Workshop, Christine Jolls (Harvard Law) presents Debiasing Through Law.
At the Princeton Political Philosophy Colloquium, Iris Marion Young will present Responsibility and Structural Injustice.
At Florida State University, Adrienne Davis (University of North Carolina) presents Re-thinking Slavery.
At the University of Michigan's Law and Economics series, Richard McAdams is presenting.
At Boston University, Tamar Frankel is presenting today.
At the University of Hertfordshire Centre for Normativity and Narrative, Richard Norman (Kent) presents two lectures, Aesthetic Form and the Meaning of Life & The Ethics of War: War and Human Rights.
At MIT's philosophy series, Jason Stanley (University of Michigan) presents Context, Interest-Relativity, and Knowledge.
At Oxford's Centre for Socio-Legal Studies, a conference on Islamic Law and Human Rights: An Ethnographic Approach with Fariba Adelkhah, John Bowen, Fikret Karcic, John Kelsay, Werner Menski, Ziba Mir Husseini, Christian Moe, Martha Mundy, Lawrence Rosen, and Mohammad Talib.
At the University of Buffalo, Ernesto Laclau presents Empty Signifiers and the Logic of Representation with comments by Guyora Binder & Betty Mensch.
At the University of Texas, Mark Weiner (Rutgers-Newark) presents The Multiple Integrations of the Civil Rights Movement.
At the Society for Applied Philosophy in London, R. A. Duff (Stirling) & Penny Darbyshire (Kingston University) discuss The Future of the Right to Trial by Jury, with Thom Brooks (Sheffield) as Chair.
At the University of North Carolina's philosophy series, Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.
At the University of Bristol's philophy series, Jo Wolff (UCL) presents What is Disadvantage and What Should be Done About it?
At the University of London's Philosophy Programme, there is a one-day conference, Aristotle on Potentiality and Actuality.
Saturday, November 29, 2003
Michael Smith on Consequentialism Michael Rappaport and I had a recent exchange on the demandingness objection to utilitarianism (Solum-Rappaport-Solum). So I was in the mood for Consequentialism and the Nearest and Dearest Objection--a paper recently uploaded by Michael Smith of the Australian National University's prestigious Research School of Social Sciences. Here is the hypo that starts the paper:
Parfit, Derek 1984: Reasons and Persons (Oxford: Oxford University Press).
Bainbridge on Regulation By Litigation Read this post.
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Moral Combat by Heidi Hurd:
Download of the Week This week the Download of the Week is Matthew Adler's paper Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety. Adler describes the paper in the abstract:
Friday, November 28, 2003
Cohen on Who Can Blame the Terrorists at Cambridge At the Cambridge Forum for Legal & Political Philosophy, G.A. Cohen (All Souls College, Oxford) presents Casting the First Stone: Who Can and Who Can't Blame the Terrorists.
Saul on Torturing Terrorists at Oxford At Oxford's Human Rights Discussion Group, Ben Saul presents Torturing Terrorists after September 11: Dershowitz` Torture Warrant.
Papineau on Genes and Culture at Bristol At the University of Bristol's philosophy series, David Papineau (King's College, London) presents Genes and Culture.
Bernitz on European Competition Law Convergence at Oxford At Oxford's Institute of European and Comparative Law Seminar Series, Ulf Bernitz presents Convergence of European and National Competition Law: How Far Will it Go?.
Preece on Common Law & National Sovereignty Alun A. Preece (University of Queensland) has posted The Common Law and National Sovereignty on SSRN. Here is the abstract:
Baker on Price Discrimination Jonathan B. Baker (American University, Washington College of Law) has posted Competitive Price Discrimination: The Exercise of Market Power Without Anticompetitive Effects (Comment on Klein and Wiley) (Antitrust Law Journal, Vol. 70, No. 3, pp. 643-54, 2003, American Bar Association) on SSRN. Here is the abstract:
Conference Announcement: The Laws of War at Notre Dame
Ayotte & Skeel on Venue Choice in Bankruptcy Kenneth Ayotte and David A. Skeel, Jr. Jr. (Columbia Business School and University of Pennsylvania Law School) have posted Why Do Distressed Companies Choose Delaware? An Empirical Analysis of Venue Choice in Bankruptcy to SSRN. Here is the abstract:
Alward on Authorial Speech Acts Peter Alward has uploaded Attitudes Towards Fiction - Chapter 1: Authorial Speech Acts. Here is an excerpt:
Bagley versus Nard Margo Bagley (Emory University - School of Law) has posted Still Patently Unconstitutional: A Reply to Professor Nard (Minnesota Law Review, Vol. 88, p. 238, 2003). Here is the abstract:
Thursday, November 27, 2003
Thanks to the Volokh Conspirators and the Crooked Timberites for many hours of interesting and provacative reading.
Thanks to Rick Hasen, whose Election Law Blog is a wonder.
Thanks to Jack Balkin. Nothing has been more rewarding than responding to the intelligent and careful work that Jack does on Balkinization.
Thanks to Brett Marston, from whose Marstonalia, I have learned much.
Thanks to my USD colleagues, Gail Heriot, Sai Prakash, Mike Rappaport, Maimon Schwarzschild, Tom Smith and Chris Wonnell for their fabulous new blog, The Right Coast.
Thanks to Chris Bertram, Greg Goelzhauser, and Nate Oman--your support in the early days of Legal Theory Blog meant more than you can know.
Thanks to Jane Galt and Glenn Reynolds for introducing many new readers to LTB.
And most of all, thanks to you, for reading!
Wishing all in the blogosphere, a joyous Thanksgiving,
Lipton on Database Property Jacqueline D. Lipton (Case Western Reserve University - School of Law) uploads Balancing Private Rights and Public Policies: Reconceptualizing Property in Databases (Berkeley Technology Law Journal, Vol. 18, pp. 773-852, Summer 2003) to SSRN. Here is the abstract:
Is there really a workshop at Northwestern today? Northwestern's website says that Ronen Avraham is presenting Liability Rules and Modular Liability Rules: Another Ex-Ante View of the Cathedral. But surely not!
Fehige on Desires at ANU At ANU's RSSS, Christoph Fehige (University of Konstanz) presents Desires as Affects.
The UN and National Building at ANU At ANU's faculty of law, there is a conference entitled The United Nations and State Building.
Wednesday, November 26, 2003
Litman on Sharing and Stealing Jessica Litman (Wayne State University Law School) has posted Sharing and Stealing on SSRN. (For an updated version of the working paper, follow this link.) Here is the abstract:
And here are some references:
More from Weatherson on Cloning Brian Weatherson has put up a series of posts on cloning over at Crooked Timber, with many fine comments added by readers. His latest two posts can be found here and here.
Gardner & Macklem on Provocation John Gardner & Timothy Macklem have uploaded No Provocation without Responsibility: a Reply to MacKay and Mitchell. For submission to the Criminal Law Review. Here is a taste:
At the centre of our argument was what we regarded as an elemental contrast between excuses and denials of responsibility. To offer an excuse, we said, is to attempt to provide a decent rational explanation for what one did. To deny responsibility, by contrast, is to assert that (because at the time one was not a sufficiently rational being) no rational explanation for what one did is called for. Defences in these two classes, we argued, are not only different but incompatible. To make an excuse is not only not to deny one’s responsibility; it is positively to assert one’s responsibility. To deny one’s responsibility is not only not to make an excuse; it is to undermine any excuse one might have made. That is because one cannot claim to live up to rationality’s standards while also claiming that one should not be judged by rationality’s standards.
Barry on Utilitarianism and Human Rights at UCL At University College, London, today, Brian Barry (Columbia) presents Utilitarianism and Human Rights?
Keohane on Rational Choice & International Law Robert Keohane (Duke University - Department of Political Science) has posted Rational Choice and International Law (Journal of Legal Studies, Vol. 31, No. 1, January 2002) on SSRN. Here is the abstract:
Infanti on the IRC as a Sodomy Statute Anthony C. Infanti (University of Pittsburgh - School of Law) has uploaded The Internal Revenue Code as Sodomy Statute (Santa Clara Law Review, Vol. 44) to SSRN. Here is the abstract:
Atik on Nafta & Legitimacy Jeffery Atik (Loyola Marymount University) has uploaded Repenser NAFTA Chapter 11: A Catalogue of Legitimacy Critiques (Asper Review of International Business and Trade Law, Vol. 3, 2004). Here is the abstract:
Tuesday, November 25, 2003
Posner on Databases & Copyright Richard Posner has written a typically lucid opinion in ASSESSMENT TECHNOLOGIES OF WI, LLC. v. WIREDATA, INC. The case concerns a real-estate database constructed from public domain records subject to an open records statute. Posner observes that the plaintiff could claim a copyright in the arrangement of the data (the data elements & the arrangement of the elements into tables), but not underlying raw data. Link courtesy of the always amazing Howard Bashman.
Bertram on Rousseau Chris Bertram (Crooked Timber) has a marvelous book on Rousseau that is now available from Amazon.com: Rousseau and the Social Contract. I just bought my copy! Perhaps the reader's of Legal Theory Blog can boost Chris's sales rank! Buy it while its hot!
Fanto on Whistleblowing & Public Directors James A. Fanto (Brooklyn Law School) uploads Whistleblowing and the Public Director: Countering Corporate Inner Circles to SSRN. Here is the abstract:
Trosow on Copyright for Subsidized Speech Samuel E Trosow (University of Western Ontario - Faculty of Law / Faculty of Information & Media Studies) has posted Copyright Protection for Federally Funded Research: Necessary Incentive or Double Subsidy? on SSRN. Here is the abstract:
Posner Speaks Another Rice Grad guest blogs Richard Posner's talk at George Mason on Bush v. Gore over at Southern Appeal.
Ides on Congress's Power to Regulate Abortion Under the Commerce Clause Allan Ides (Loyola Marymount University) has uploaded The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause to SSRN. Here is the abstract:
Bainbridge on Eisenberg I would imagine that most readers of Legal Theory Blog will want to read Stephen M. Bainbridge's (University of California, Los Angeles - School of Law) Social Propositions and Common Law Adjudication, which is just up on SSRN. Here is the abstract:
Driver Reviews Arply Julia Driver has a Review of Nomy Arpaly's Unprincipled Virtue on Notre Dame Philosophical Reviews. Here is an excerpt:
Gregory on Stalinism at George Mason At George Mason's Philosophy, Politics, and Economics series, Paul Gregory (Economics, University of Houston) presents The Political Economy of Stalinism.
Williams on the Natural/Positivist Nexus at OJDG At Oxford's Jurisprudence Discussion Group, Melanie Williams, presents Then and Now: The Natural/Positivist Nexus at War - Auden’s “September 1, 1939”.
Duffield on Patent Harmonization at Oxford At Oxford's IP Seminar, Graham Dutfield presents Harmonising Patent Law? A Lesson from the 19th Century Dyestuff Industry.
Shavell on Contracts Steven Shavell (Harvard Law School) has posted On the Writing and the Interpretation of Contracts on SSRN. ($5.00 fee.) Here is the abstract:
Boos on H.L.A. Hart & David Hume, Is/Ought Eric J. Boos (Sokoine University - Law) posts The Misapplication of the 'Is-Ought' Distinction and the Role of Justice in Hart's Legal Theory on SSRN. Here is the abstract:
Adler on Fear Assessment or "The Only Cost We Have to Weigh is Fear Itself" Matthew D. Adler (University of Pennsylvania Law School) has uploaded Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety to SSRN. Here is the abstract:
Mattiacci on Kaplow & Shavell Giuseppe Dari Mattiacci (Utrecht School of Economics) has posted Goedel, Kaplow, Shavell: Consistency and Completeness in Social Decisionmaking on SSRN. Here is the abstract:
Monday, November 24, 2003
More on the Demandingness Objection to Utilitarianism Here, from Michael Rappaport of The Right Coast. The gist of the demandingness objection is captured by the question: doesn't utilitarianism demand that we all work for Oxfam? One potential way to answer the objection relies on R.M. Hare's distinction between utilitarianism as an ideal theory of morality, and the rules of thumb that would produce the best consequences if internalized as social norms. Rappaport has some interesting things to say about a Harean strategy. After you read Rappaport's very thoughtful post, consider this argument from Stanford University graduate student Daniel Lafave:
Act-utilitarianism is an extremely demanding theory, since it requires you to be entirely impartial between your own interests, the interests of those you love, and theinterests of all. The usual example offered is famine relief. By giving up all your time,money and energy to famine relief, you will save many lives and prevent much suf-fering. Utilitarians often claim at this point that there are limits to human capabilities,and utilitarianism requires us only to do what we can. But the sense of ‘can’ hereis quite obscure, since in any ordinary sense I can give up my job and spend my life campaigning for Oxfam.
The demandingness objection seems particularly serious when taken in the context of widespread noncompliance with the demands of act-utilitarian morality. Most people do little or nothing for the developing world, and this is why the moral demands on me are so great. An argument such as this has been used to advocate rule-utilitarianism, according to which the right action is that which is in accord with thatset of rules which, if generally or universally accepted, would maximize utility.
Update :And more from Ciceronian Review, here.
Additional update: And for more from Charles Stewart, surf here.
Weekend Update On Saturday, the Dowload of the Week was Gerald Postema's magisterial two-part paper on the common law, and the Legal Theory Bookworm recommended Robert Alexy's latest. Sunday, the topic for the Legal Theory Lexicon was the theory of the second best (and the distinction between ideal and nonideal theory). And also on Sunday, you will find the Legal Theory Calendar, with workshops, conferences, and other events of note for this week. Finally, the last post from the weekend was a longish response to Brian Anderson's Opinion Journal op/ed on Senator Schumer and judicial selection.
Froomkin on National ID Cards at FSU At Florida State, Michael Froomkin (University of Miami) presents The Uneasy Case for National ID Cards as a Means to Enhance Privacy. I always learn from Froomkin's work. This should be excellent! P.S. FSU appears to have password protected the paper, so I have substituted a link to a version from Froomkin's website--this may not be the same draft as circulated to the FSU faculty.
Jiang on Defined Contribution Plans at Columbia At Columbia's law and economics series, Professor Wei Jiang (Columbia University Graduate School of Business) presents Defined Contribution Pension Plans: Determinants of Participation and Contributions Rates (authored with Business School colleagues Professors Gur Huberman and Sheena S. Iyengar).
Schmidtz on Equality at Arizona At Tulane's Center for Ethics and Public Affairs, David Schmidtz (University of Arizona) presents Equality. Largish topic?
Griffin at Oxford At Oxford's Moral Philosophy Seminar, James Griffin (ANU) speaks today. Topic anyone?
O'Connor on Corporate Governance and Human Capital Marleen O'Connor (Stetson University College of Law) has uploaded American Corporate Governance and Resilient Families: Investing in Children's Human Capital in Turbulent Times to SSRN. Here is the abstract:
Viscusi on Tort Reform and Insurance Markets W. Kip Viscusi (Harvard Law School) has posted Tort Reform and Insurance Markets on SSRN. Here is the abstract:
Wuerth on Madison's Forgotten War Ingrid B. Wuerth (University of Cincinnati - College of Law) posts The President's Power to Detain 'Enemy Combatants': Modern Lessons From Mr. Madison's Forgotten War (Northwestern University Law Review, Vol. 98, 2004) on SSRN. Here is the abstract:
Margulies on Judging and Terrorism Peter Margulies (Roger Williams University School of Law) has posted Judging Terror in the 'Zone of Twilight': Exigency, Accountability, and Procedure After September 11 on SSRN. Here is the abstract:
Hay on Stings Bruce L. Hay (Harvard Law School) has posted Sting Operations, Undercover Agents and Entrapment on SSRN. Here is the abstract:
Sunday, November 23, 2003
Senator Schumer and the Criteria for Judicial Selection
A Simple Model of Judicial Selection And, in fact, there are even more complicated possibilities, because it is possible that Democrats are considering both political ideology and judicial philosophy in deciding which candidates should be subject to a filibuster veto. It's worthwhile thinking a bit more abstractly about this. So let's consider a very simply model where judges are rated by judicial selectors (Presidents and Senators) on two dimensions. Here they are:
--Judicial Philosophy. Let's assume that selectors rate candidates on the basis of their judicial philsophy on a continuous real line that runs from formalist to realist. Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology. Give such a candidate a score of zero. Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all. Give such a candidate a score of one.
So each judicial candidate will have a position in this two dimensional space. In the upper left, will be left-realist judges, who decide cases almost solely on the basis of their left ideology. In the upper right are the right-realist judges, who override the law and decide based on right-wing ideology. At the bottom of the chart are the formalist judges, who decide on the basis of texts, structure, history, and precedent. Let us assume that even a judge who is perfectly formalist in intention will be unable to fully compensate for unconcious biases introduced by ideology. Thus, although right formalists and left formalists may agree most of the time, there will be some issues on which they will decide differently because they are unable to completely compensate for their ideological biases, preconceptions, and assumptions.
How Would Selectors Rate Candidates? Given our simple two dimensional model, how would judicial selectors (Presidents and Senators) rate candidates? This is a complex question, because selectors themselves may vary in both political ideology and judicial philosophy. For the purposes of model building, let's assume a simplified picture. Let's assume that to make an appointment, you need to get the agreement of two players: a right-wing President and a unitary left-wing Senate. (This obviously oversimplifies, because in current circumstances the Senate has a right-wing majority and a left-wing minority with veto power--unless the filibuster rule is changed.) How would they evaluate candidates? Consider each in turn:
--The Senate. Now assume you are the Senate (or to be more realistic, the Senate minority with a filibuster-enabled veto). You will be willing to accept realist judges only if they are on the extreme left of the ideology line. As judges become more formalist, you are willing to accept progressively less left-wing ideologies. That is, the line the defines the set of candidates that are acceptable to the Senate slopes downward and to right.
___________________Acceptability Frontiers for President & Senate
__Realist1| ________13|_____*______________________________________________________________________# ________14| ________15| ________16|_______*__________________________________________________________________# ________17| ________18| ________19|__________*____________________________________________________________# ________20| ________21| ________22|_____________*______________________________________________________# ________23| ________24| ________25|_________________*______________________________________________# ________26| ________27| ________28|_____________________*______________________________________# ________29| ________30| ________31|__________________________*______________________________# ________32| ________33| ________34|_______________________________*____________________# ________35| ________36| ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42| ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
Who Will Be Selected From Within the Confirmation Zone? Given our model, we would expect the President to nominate from inside the confirmation zone. Let me translate. Given our model, we would expect a right wing President to nominate candidates whose political ideology is relatively moderate and who are relatively formalist. Of course, there is a possibility that the Senate (or Senate minority with a filibuster veto) would reject candidates inside the confirmation zone. Why, because both the President and Senate will preferences inside the zone. To simplify, let's assume that on any given horizontal line (i.e. for any given level of formalism), the President prefers those to the right and the Senate prefers those to the left. Consider the following example. We have two candidates C1 and C2, who are identical with respect to their judicial philosophy score, but different with respect to their political ideology score--C1 is to the left of C2. This situation can be represented in the following diagram, which cuts off the acceptability curves above the confirmation zone: ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42|________________________________C1_______________C2 ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
Back to the Real World So how does all this relate to Brian Anderson's comments about Senator Schumer? Anderson's suggestion is that there is an asymmetry between the way Republicans and Democrats view judicial philosphy. Essentially, Anderson suggests that Democrats want left-realist judges and Republicans want right-formalist judges. But this is a partisan reading of recent events. Although Republicans favor formalism on some issues, e.g. the unenumerate liberty or privacy rights that undergird Roe v. Wade and Lawrence v. Texas, Republicans may prefer less formalist approaches to other issues, e.g. the constitutional sovereign immunity jurisprudence that seems to go far beyond the text of the 11th Amendment. Nonetheless, there is something to Anderson's point, reflected in the fact that in the legal academy and on the bench, originalists have tended to be conservative and nonoriginalists liberal.
As frequent readers of this blog know, I have been arguing for some time that the best way out of the current downward spiral of politicization that affects both the bench and the judicial selection process is for both sides to take a long-run view of the benefits of the rule of law and the costs of politicization. But Anderson's characterization of the problem is correct, then that solution is unavailable. Why? Because Anderson's argument seems to be that restoration of the rule of law is not in the interests of the left. I disagree, in part because I believe that a doctrine strong stare decisis is part of the best formalist theory of judging, but this post has already gone on too long, and that is a topic for another day.
And for more on Anderson, check out this post by Brett Marston.
Update: And this post from C.E. Petit on Scrivener's Error.
Legal Theory Lexicon: Second Best
The Intuitive Idea The intuition behind the idea of the second best is simple. We would like to have the best possible legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"? Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to that now.
The Second Best in Economics Let's move from the intuitive idea of the second best to the origins of that idea in economic theory. The very general idea of the economic theory of the second best can be expressed as follows:
One or two additional points are necessary to complete the technical story. First, the definition that I just gave assumes that only one variable is constrained. But there is no reason to limit the theory of the second best in this way, more than one variable may be constrained. In fact, in theory every variable could be constrained: in this limiting case, the second-best state would be the only possible state of the system. Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase.
Finally, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values. Although technically, the definition of second best need not be limited to that special situation, that is the interesting result, and the use of the theory of the second best in economics may be limited to the special case. Outside of economics, however, the phrase "second best" tends to be used in a much looser sense. The important thing is not the terminology, but the ideas. To be clear, however, it is useful to explain what you mean by second best!
The Second Best and Nonideal Theory The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice. Can you make that very abstract description more concrete? Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory.
Pinpointing the Constrained Variable The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:
The Feasible Choice Set Another way of approaching the general problem revealed by the theory of the second best is via the notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set.
The Bottom Line The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best!
Bibliography & Links
Legal Theory Calendar
At Columbia's law and economics series, Professor Wei Jiang (Columbia University Graduate School of Business) presents Defined Contribution Pension Plans: Determinants of Participation and Contributions Rates (authored with Business School colleagues Professors Gur Huberman and Sheena S. Iyengar).
At Tulane's Center for Ethics and Public Affairs, David Schmidtz (University of Arizona) presents Equality. Largish topic?
At Oxford's Moral Philosophy Seminar, James Griffin (ANU) speaks. Topic anyone?
At Oxford's Jurisprudence Discussion Group, Melanie Williams, presents Then and Now: The Natural/Positivist Nexus at War - Auden’s “September 1, 1939”
At Oxford's IP Seminar, Graham Dutfield presents Harmonising Patent Law? A Lesson from the 19th Century Dyestuff Industry.
At Oxford's Ockham Society, Rory Madden (Oxford) presents Agent Identity and the Structure of Intention.
At ANU's RSSS, Christoph Fehige (University of Konstanz) presents Desires as Affects.
At ANU's faculty of law, there is a conference entitled The United Nations and State Building.
At Oxford's Human Rights Discussion Group, Ben Saul presents Torturing Terrorists after September 11: Dershowitz` Torture Warrant
At Oxford's Institute of European and Comparative Law Seminar Series, Ulf Bernitz presents Convergence of European and National Competition Law: How Far Will it Go?.
At the University of Bristol, David Papineau (King's College, London) presents Genes and Culture.
Saturday, November 22, 2003
Will certiorari be granted in Silveira v. Lockyer? Read this report on Law.com. Here is a taste:
And speaking of Bashman . . . . . . here is his choice for funniest law student blog.
Three Million for Howard Bashman Congratulations to Howard Bashman on three million hits on How Appealing--one of my favorite blogs and a valuable and much used resource. Thank you Howard!
Froomkin on the End of the Semester Law students and teachers will want to read Michael Froomkin's musings on semester's end.
Download of the Week This week, I am especially enthusiastic in my recommendation of the Download of the Week. That's because this week's recommendation is something truly special--a magnificent two part article by Gerald J. Postema (University of North Carolina - Philosophy and Law): Classical Common Law Jurisprudence (Part 1) & Classical Common Law Jurisprudence (Part 2) on SSRN. Both parts are forthcoming in the Oxford University Commonwealth Law Journal, Vol. 2, No. 2, pp. 155-180, Spring 2003 & Vol. 3, No. 1, pp. 1-28, Summer 2003. Here are the abstracts:
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Robert Alexy's The Argument from Injustice: A Reply to Legal Positivism (another link to the Oxford University Press page is here). Alexy is one of the most interesting and important legal theorists working today, and is perhaps the best-kinown representative of the an approach to jurisprudence that draws on the work of the German philosopher and social theorist, Jurge Habermas. If you want to get a lively sense of state-of-the-art continental legal philosophy, Alexy's most recent book, which addresses the "What is law?" question is a very good place to start. Here is the publisher's abstract:
The tripartite division indicates that positivism has two defining elements. A positivism must exclude the elment of correctness of content, but then can define in many different ways the relation between the elements of authoritative issuance and social efficacy, giving rise to numerous variations of legal postivism.
Cybersecurity, Research and Disclosure at Stanford
Friday, November 21, 2003
Northup on Lessig Peter Northup reports on Larry Lessig's talk yesterday at NYU. Thank you! And Larry Lessig adds his thanks for the blogging here!
Applbaum on Legitimacy at Kadish At Berkeley's marvelous Kadish series, Arthur Applbaum (Professor of Ethics and Public Policy, Kennedy School of Government, Harvard University) presents Legitimacy in a Bastard Kingdom. I blogged an earlier version of this paper that Applbaum delivered at Yale in the Spring. Marvelous paper!
Rorty on "Guess What?" at North Carolina At the University of North Carolina, Philosophy series, Richard Rorty presents Putnam, Pragmatism, and Parmenides.
Philosophy for Food Seriously, for three pounds, you can see A C Grayling speak on Enlightenment and Counter-Enlightenment, Then and Now, at Conway Hall, Red Lion Square, London.
Papineau on Cultural Evolution at RIP David Papineau presents Cultural and Biological Evolution at the Royal Institute of Philosophy in London.
Duster on the Miner's Canary at Texas At the University of Texas, Troy Duster (NYU), David Chambers (Michigan) and Eric Tang (CAAAV) present The Miner's Canary.
IP & the Life Sciences at ANU At the Australian National University, a conference entitled Intellectual Property & the Life Sciences: Agriculture, Health & Trade happens today.
Conference Today at Brooklyn: The New Federalism
Bryant on the 13th Amendment Christopher Bryant (University of Cincinnati - College of Law) posts Stopping Time: The Pro-Slavery and "Irrevocable" Thirteenth Amendment (Harvard Journal of Law & Public Policy, Vol. 26, No. 2, p. 501, Spring 2003) on SSRN. Here is the absttract:
Tsai on Cognitive Constitutionalism Robert L. Tsai (University of Oregon - School of Law) has posted Cognitive Constitutionalism: Speech and Strife (Law & Contemporary Problems, Vol. 67, 2004) on SSRN. Here is the abstract:
Feibelman on Sovereign Immunity and Bankruptcy Adam Feibelman (University of Cincinnati - College of Law) presents Federal Bankruptcy Law and State Sovereign Immunity (Texas Law Review, Vol. 81, No. 6, May 2003) on SSRN. Here is the abstract:
Hamdani on Gatekeeper Liability Assaf Hamdani (Harvard Law School) has posted Gatekeeper Liability (Southern California Law Review, Vol. 77, 2004) on SSRN. Here is the abstract:
Leiter & the Curmudgeonly One on Legal Realism Brian Leiter responds to a post by the Curmudgeon Clerk that includes the following argument: "The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former." Leiter replies:
(b) the court reaches (necessarily) one and only one decision from among those that the legal reasons would support.
Moral Epistemology at Edinburgh
Thursday, November 20, 2003
Mazzone on Too Much Copyrighting Check out Jason Mazzone's op/ed in the Legal Times, available at this link. Here is a taste:
Green on Locke and Auxiliary Rights Michael Steven Green (George Mason University - School of Law) has posted The Paradox of Auxiliary Rights: The Privilege Against Self-Incrimination and the Right to Keep and Bear Arms on SSRN. Here is the abstract:
More on the Duty to Give Advice and Consent Bronson Yake adds to the debate over the Senate's duty to give timely advice and consent in this post on Right to the Point. Michael Rapport's posts to which Yake responds can be found here and here.
Smith on the Big Picture Read this post by my colleague Tom Smith on Stanley Fish, Brian Leiter, life, the universe, and everything.
Leiter on the Hart-Dworkin Debate If you are interested in the ins and outs of contemporary debates in the philosophy of law, you will definitely want to read this post by Leiter and download this paper. For what its worth, my take is that the Hart-Dworkin debate was a titantic tempest in a teapot, with much Dworkin's ship passing Hart in the night. (I know, terrible mixed metaphors!) The real significance of Dworkin's work lies elsewhere, in his normative theory of judging.
Lessig on Big Media at NYU At NYU's Colloquim in Law, Philosophy and Political Theory, Lawrence Lessig (Stanford University Law) presents an excerpt from FREE CULTURE: How Big Media Uses Technology And The Law To Lock Down Culture And Control Creativity. Here is a taste:
Update: Peter Northup reports on Larry Lessig's talk.
Netanel Copyright & the First Amendment at Georgetown At Georgetown's Colloquium on Intellectual Property & Technology Law, Neil Weinstock Netanel (University of Texas at Austin School of Law) presents Copyright and First Amendment: Eldred v. Ashcroft and Beyond.
Coates on CEO Incentives & Mergers at Stanford At Stanford's Olin Series, John Coates (Harvard Law School) presents CEO Incentives and Merger Activity in the 1990s: Stock Options and Real Options.
Hills is Against Preemption at Michigan At the University of Michigan's Olin Series, Rick Hills (Michigan) presents Against Preemption: How Federalism Can Improve the National Legislative Process.
King on Judge-Jury Communication at FSU At Florida State, Nancy King (Vanderbilt) presents The Ethics of Judge-Jury Communications.
At George Mason University, D. Bruce Johnsen (GMU School of Law) presents The Limits of Mandatory Disclosure: Regulatory Taking under the Investment Company Act.
Wall on Political Equality at Arizona At the University of Arizona's philosophy colloquium, Steven Wall (Philosophy, Columbia University) presents Against Political Equality.
Greer on Critical Theory and Social Facts at Chicago At the University of Chicago's Political Theory Workshop, Kirk Greer (University of Chicago) presents Incorporating Racism: Critical Theory and Social Facts, with discussant Andrew Dilts.
Witt on Revolutionary Lawyers at UCLA At UCLA's Legal History Workshop, John Witt (Columbia) presents The Lawyer as Revolutionary: Crystal Eastman and the Internationalist Beginnings of American Civil Liberties.
Licht on Corporate Governance, Values, and Cognitive Style Amir N. Licht (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Maximands of Corporate Governance: A Theory of Values and Cognitive Style on SSRN. Here is the abstract:
Boos on Hart and Aquinas Eric J. Boos (Sokoine University - Law) posts An Unconventional Alliance That Should Have Been: Revisiting Hart's Mistake in Rejecting Aquinas' Natural Law Theory on SSRN. Here is the abstract:
Wednesday, November 19, 2003
The Morality of Cloning Brian Weatherson has a typically intelligent and well-argued post on cloning, in which he canvasses the arguments against human cloing and concludes that most of the me are awful. (I agree.) The consensus of opinion in the medical community, however, is that given current techniques, which yield a very high incidence of substantial defects, even experimentation with human cloning would be unethical. Weatherson offers the following thoughts about this argument:
What about the interests of the child who will not exist if not cloned? Perhaps this is whether Weatherson and I part company. I would not think that this interest is of great moral salience. The problem is that too many children fail to come into existence because of our choices, and trivial decisons that affect the timing of conception doom thousands or perhaps millions of children to nonexistence every day.
Moreover, my understandng of the science is that cloning (as currently practiced) does involve a very high risk of defect. It is my further understanding that while cloning may be the only technique available to parents to have a child who does not have genetic material from someone other than the parents, it is not the case that cloning will be the only technique that can produce a child that shares genetic material with at least one parent. For example, men can father children involving donor eggs and surrogate mothers, and women can give birth to children involving sperm donors and/or egg donors. There may, however, be some rare cases where neither parent can contribute genetic material without cloning.
Given this constellation of facts and interests, I would take it that there is currently a compelling reason for both physicians and for patients not to engage in human cloning. The desire to have a child who has only the genetic material of one parent as opposed to the alternatives is not sufficiently weighty given the risk of suffering and burden on society. Thus, I would take issue with Weatherson's conclusion that the argument against cloning from the risk of genetic defect is weak; my evaluation (and that of almost everyone in medical ethics) is that this argument is strong. Perhaps, I misunderstand Weatherson, with whom I agreed about everything else in his post. It is certainly a very interesting topic.
Thomas reexamines the Constitutionality of Remittitur Suja Thomas (University of Cincinnati - College of Law) has posted Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment (Ohio State Law Journal, Vol. 64, p. 731, 2003) on SSRN. Here is the abstract:
Slobogin on a Jurisprudence of Dangerousness Christopher Slobogin (University of Florida, Levin College of Law) has posted A Jurisprudence of Dangerousness (Northwestern University Law Review, Vol. 98, No. 1) on SSRN. Here is the abstract:
Werbach on the Supercommons Kevin D. Werbach has posted Supercommons: Toward a Unified Theory of Wireless Communication (Texas Law Review, Vol. 82, March 2004) on SSRN. Here is the abstract:
Johnson Yahya on Competitive Federalism D. Bruce Johnsen and Moin A. Yahya (George Mason University School of Law and University of Alberta - Faculty of Law) have posted The Evolution of Sherman Act Case Law: A Roadmap for Competitive Federalism on SSRN. Here is the abstract:
Lazarus on Comparative Human Rights for Prisoners at Oxford At Oxford's Centre for Criminological Research, Liora Lazarus presents Prisoners and Human Rights in Comparative Perspective.
Kismet on Qui Tam Kary Klismet (University of Iowa College of Law) has posted Quo Vadis, 'Qui Tam'? The Future of Private False Claims Act Suits Against States After Vermont Agency of Natural Resources v. United States ex rel. Stevens (Iowa Law Review, Vol. 87, No. 1, October 2001) on SSRN. Here is the abstract:
Tuesday, November 18, 2003
Massachusetts Supreme Judicial Court Decision on Gay Marriage Find the opinion here. Eugene Volokh has comments here, here and here.
Araiza on Section Five Power at the University of San Diego At the University of San Diego, William Araiza (Loyola Marymount) presents The Section 5 Power and the Three-Tiered Structure of Equal Protection.
Huigens on a Specification to Coherence Theory of Punishment At Oxford's Jurisprudence Discussion Group, Kyron Huigens presents A Specification to Coherence Theory of Punishment`s Justification. Here is a taste:
The aretaic theory of punishment takes a fundamentally different approach to the reconciliation of punishment’s multiple ends, and to punishment’s justification in light of those ends. Whereas the other major traditions in philosophical ethics recognize some of the ends of punishment in ways that denigrate or distort them, the aretaic theory can integrate the several ends of punishment by means of a coherentist account of practical justification that is aimed specifically at reconciling punishment’s multiple ends. The aim of this paper is to give such a coherentist account, which will not only demonstrate an advantage over the other two main theories of punishment, but that will also avoid some difficulties within the aretaic theory of punishment.
Gardiner on the Function of Tort Law at Oxford At Oxford's Faculty of Law, John Gardner presents What is Tort Law For? to the Private and Commercial Law Discussion Group.
Gerald Dworkin on Unfair Competition at Oxford At the Oxford Intellectual Property Research Centre, Gerald Dworkin presents Unfair competition: Is the Common Law in need of a Loose Cannon?
Lyon on Rehabilitating Child Witnesses at Loyola Marymount At Loyola Marymount's Loyola Law School, Thomas D. Lyon (Professor of Law, University of Southern California Law School) presents Rehabilitating the Child Witness.
Chesney on the Democratic-Republican Societies and Political Dissent Robert Chesney (Wake Forest University - School of Law) posts Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
Koch on Policymaking by ALJs Charles Koch (College of William and Mary School of Law) has posted Policymaking by the Administrative Judiciary on SSRN. Here is the abstract:
Monday, November 17, 2003
The Demandingness Objection to Utilitarianism Matthew Yglesias replies to my statement of the demandingness objection to utilitarianism from the Legal Theory Lexicon a while back. Here is my statement of the objection:
Having said that, I don't think that Yglesias's answer is adequate. It is true that a utilitarian can make R.M. Hare two-level theory move, and argue that utilitarianism itself would support a less demanding morality as a rule of thumb. Moreover, it may be the case that a practice of moral criticism in conformity with utilitarianism would not criticize the failure to devote one's self to Oxfam for utilitarian reasons. But Yglesias has not made the utilitarian case for either of those two possibilities. Yglesias stats, "It would be unreasonable to condemn someone in this way, so good utilitarians don't condemn people simply because they don't spend all their time working for oxfam." Well, yes, that is the point of the objection, but "reasonableness" is not itself a utilitarian concept. Yglesias needs an argument that condemning someone who doesn't work for Oxfam will produce less utility than the alternative courses of action. Moreover, even if Yglesias does make this case, a potent version of the demandingness objection would still remain in play. From the cool point of reflection that Hare identifies as the perspective of utilitarian theory, it would still be the case that in the end, it is wrong not to work for Oxfam to the utility-maximizing extent. Many would argue that even from the perspective of cool reflection, utilitarianism will still be too demading to claim our assent.
The rest of Yglesias's post relies on a distinction between "maximally-good behavior" and "minimally-acceptable behavior," which may indeed be a reasonable distinction. I fail to see, however, how Yglesias has managed to locate such a distinction within utilitarian moral theory.
The President's Power to Call Congress Into Executive Session as a Remedy for the Senate's Breach of its Constitutional Duty to Render Advice and Consent
Reading the History: Washington's Letter and Historical Practice One important question concerns the question whether the Senate has recognized the President's power to convene the Senate as an "executive council." Senate Rule XXIX has long provided that the President may call the Senate into executive session. Rappaport notes that this rule does not, by itself, give the President the power to modify the Senate's other rules of procedures, and he is surely correct. My argument that the President has the additional power to ask individual Senators for advice and consent relied on President Washington's letter. To that Rappaport replies:
Second, Rappaport believes that the subsequent history points unambiguously to the view that the President lacks the power to convene the Senate as a legislative council. My tentative reading of the history is more nuanced. In response to Washington, the Senate indicated its preference to meet in its own chamber, and Washington acquiesced in the Senate's expression of its preference. This acquiescence can be read in two ways:
The second reading is that Washington and the Senate did not reach the point of clash over the issue of power, because the Senate requested that Washington allow the Senate to give advice and consent in a manner of its own choosing.
Thought Experiment One Here is another way to think about the history. Consider the following thought experiment:
The Argument for a Constitutional Duty to Render Advice and Consent from Transparency In my last post, I argued for the proposition that the Senate has a formal duty to render advice and consent that is not fulfilled by mere inaction or silence on the ground that this duty is supported by considerations of transparency and democratic legitimacy. Rappaport's most recent post resulted in my doing a bit of additional research that I would like to share with you. Both James Wilson and Joseph Story have written about the appointments power in ways that lend support to my transparency argument. Let me just quote the passages, and you can draw your own conclusion:
Thought Experiment Number Two It does seem unlikely, but let's imagine what might happen if George Bush were to start surfing the blogosphere and became convinced that he does, in fact, have the power to call the Senate into executive session. The President then sends a formal notice of the session to the Senate. Given Rule XXIX, it seems most likely that the Senate would agree to appear--although one can certainly imagine that some members of the minority caucus might decide to boycott the executive session. Now imagine that the President speaks to the assembled members of the Senate, stating his view that he has the power to ask each Senator for her or his advice and consent. Surely, at this point, some member of the Senate would object to the proceedings, arguing that the Senate, even when in executive session, must follow its own rules. At this juncture things might go in any number of directions, but here is one possibility. Suppose that the chair, a member of the Senate majority, were to rule that the Senate's rules do not apply when the Senate is in a special executive session for the purpose of giving the President advice and consent. What then? Well surely the ruling of the chair would be appealed to the whole Senate, and such a point of order is not debatable and hence not subject to the filibuster. But how would the Senate vote? It would be a dramatic moment--indeed, one of the most dramatic moments in our constitutional history. Undoubtedly, many members of the President's own party would be reluctant to see the Senate's power eroded by a vote to sustain the chair, but members of the majority would also be under the most intense of pressure to vote with their leadership and their President under these circumstances.
Conclusion Hypotheticals are good clean fun, but surely my second thought experiment is not in the cards. Surely, neither the President nor the Senate would wish to risk a constitutional crisis. Surely, there is room for compromise between the President, the Senate Majority, and the Senate Minority over judicial nominations. Surely there is a resolution of the current conflict that is better than multiple filibusters or mass recess appointments or nuclear options or the President summoning the Senate to the White House as an executive council. Surely.
Two By Stuart Buck Stuart Buck (The Buck Stops Here), who provides a very articulate and intelligent voice in the blogosphere, has two new papers on SSRN:
Student Edited Law Reviews Chris Geider has a very thoughtful post on student-edited law reviews on En Banc.
Republican Unilateral Disarmament on the Filibuster of Judicial Nominations Check out Rick Hasen's report and comment on this Roll Call article.
John Hart Ely The late John Hart Ely's article Interclausal Immunity (Virginia Law Review, Vol. 87, pp. 1185-1199, September 2001) has just appeared on SSRN. Here is the abstract:
Redding on Shariat Jeff Redding (Columbia University - Center for the Study of Law and Culture) posts Constitutionalizing Islam: Theory and Pakistan on SSRN. Here is the abstract:
Denning Reviews Noonan Brannon P. Denning (Cumberland School of Law) posts Judge Noonan's J'accuse. . .! on SSRN. Here is the abstract:
Whitman on Metapreferences and Multiple Selves at George Mason At George Mason's Workshop in Philosophy, Politics, and Economics, Glen Whitman (Economics, California State University-- Northridge) presents Meta-Preferences and Multiple Selves.
Kilborn on the German Experience with Consumer Debt Relief Jason Jeremy Kilborn (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted The Innovative German Approach to Consumer Debt Relief: Revolutionary Changes in German Law, and Surprising Lessons for the U.S. (Northwestern Journal of International Law and Business, Vol. 24, No. 2) on SSRN. Here is the abstract:
Sunday, November 16, 2003
Legal Theory Lexicon: Deontology
What Rights and Duties Do We Have? The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property?
So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness.
Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium."
Kant Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:
The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end."
The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends."
O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this a contradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea.
Some Objections to Deontology All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.
The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific.
Legal Theory Calendar
At Oxford's Jurisprudence Discussion Group, Kyron Huigens presents A Specification to Coherence Theory of Punishment`s Justification.
At Oxford's Faculty of Law, John Gardner presents What is Tort Law For? to the Private and Commercial Law Discussion Group.
At the Oxford Intellectual Property Research Centre, Gerald Dworkin presents Unfair competition: Is the Common Law in need of a Loose Cannon?
At Loyola Marymount's Loyola Law School, Thomas D. Lyon (Professor of Law, University of Southern California Law School) presents Rehabilitating the Child Witness.
At Georgetown's Colloquium on Intellectual Property & Technology Law, Neil Weinstock Netanel (University of Texas at Austin School of Law) presents Copyright and First Amendment: Eldred v. Ashcroft and Beyond.
At Stanford's Olin Series, John Coates (Harvard Law School) presents CEO Incentives and Merger Activity in the 1990s: Stock Options and Real Options.
At the University of Michigan's Olin Series, Rick Hills (Michigan) presents Against Preemption: How Federalism Can Improve the National Legislative Process.
At Florida State, Nancy King (Vanderbilt) presents The Ethics of Judge-Jury Communications.
At George Mason University, D. Bruce Johnsen (GMU School of Law) presents The Limits of Mandatory Disclosure: Regulatory Taking under the Investment Company Act.
At the University of Arizona's philosophy colloquium, Steven Wall (Philosophy, Columbia University) presents Against Political Equality.
At the University of Chicago's Political Theory Workshop, Kirk Greer (University of Chicago) presents Incorporating Racism: Critical Theory and Social Facts, with discussant Andrew Dilts.
At UCLA's Legal History Workshop, John Witt (Columbia) presents The Lawyer as Revolutionary: Crystal Eastman and the Internationalist Beginnings of American Civil Liberties.
At the University of North Carolina, Philosophy series, Richard Rorty presents Putnam, Pragmatism, and Parmenides.
At Brooklyn Law School, The David G.Trager Public Policy Symposium is entitled Our New Federalism? National Authority and Local Autonomy in the War on Terror.
At the University of Edinburgh, the Moral Epistemology Conference will be held today and Saturday. Speakers include: Walter Sinnott-Armstrong, Ralph Wedgwood, Michael Ridge, Nancy Sherman, Jonathan Dancy, and John Skorupski.
For three pounds, you can see A C Grayling speak on Enlightenment and Counter-Enlightenment, Then and Now, at Conway Hall, Red Lion Square, London.
David Papineau presents Cultural and Biological Evolution at the Royal Institute of Philosophy in London.
At the University of Texas, Troy Duster (NYU), David Chambers (Michigan) and Eric Tang (CAAAV) present The Miner's Canary.
At SUNY Buffalo, Makau Mutua (UB) presents Taming Leviathan.
At the Australian National University, a conference entitled Intellectual Property & the Life Sciences: Agriculture, Health & Trade happens today.
Saturday, November 15, 2003
More on the Senate's Duty to Give Timely Advice and Consent, or Can George Bush Call the Senate Into Executive Session at the White House?
My good friend and colleague Michael Rappaport focused on my first argument, which flows from the fact that the Constitution uses the modal verb "shall" in the relevant clause: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Rappaport observes: "This textual argument seems to suggest that the President must nominate persons to all positions that are open, but historically this has never been the understanding. Presidents have decided not to fill vacant offices for various reasons, including saving money. Certainly, there is no constitutional infirmity with the President choosing to allow offices to remain unfilled." By way of response, two observations: (1) Rappaport's argument does lie easily with the constitutional text, and I suspect that Rappaport shares my deep commitment to honoring the text where that is possible; (2) this point is not essential to the core of my argument--which is that once a nomination has been made, the Constitution imposes a duty on the Senate to give advice and to either consent to the President's nomination or express its lack of consent. This is not to say that the Senate must act immediately, or that it may not deliberate thoughtfully in difficult cases. But it is to say that the Senate may not, consistent with the language of the Constitution, simply ignore the President's nominations. The power to ignore all nominations is tantamount to the power to eliminate the executive and judicial branches of government--just as the power to tax is the power to destroy. Surely, the most reasonable reading of the constitutional text is that the Senate has an obligation to give the President advice and consent in a reasonable period of time--with the end of the Senate's session operating as an outer limit on what is reasonable.
Rappaport concedes that the power to deplete the Supreme Court would be troublesome, but replies:
Rappaport had another marvelous argument--one that uses the resources of legal realism. Update: Rappaport's reply makes it clear that he himself is not a realist. I still think that his argument "uses the resources of legal realism," but to the extent my phraseology was misleading, I accept the helpful clarification. And here is Rappaport's argument:
Moreover, the differences between hearings followed by a vote of no and Senatorial inaction are not merely formal. The differences are also substantive. Substantive? How? There are at least three substantive differences between mere inaction and a negative vote:
The second difference is a difference of message. From a negative vote, the President may plainly infer that the Senate advises against the nominee. But what should the President infer from parliamentary tactics of delay? Not that the Senate advises against the nominee--because often that is not the case. From such tactical exercises the President does not receive one of the two things that the Senate is constitutionally obligated to give. And what is that? Advice. The Senate is constitutionally obligated to both give both advice and consent. The Constitution uses the conjunction, "and," not the disjunction, "or." So the Senate must give "advice." Perhaps, one might become convinced that saying nothing is a form of advice, but this reading of the text does not seem to be the best or more reasonable reading--even if it might count as a "possible" reading.
The third difference is a difference of transparency. Let me say right away, that the transparency point that I am about to make does not apply to the current filibusters--which are reasonably transparent. But when the Senate fails to act on a judicial nomination because of a blueslip or other parliamentary technique that prevents the nomination from coming to the floor, it is frequently unclear just who is responsible for the failure to give advice and consent. Sometimes Senatorial stalling on judicial nominations is opaque. But we have good reasons to favor a transparent process over an opaque process--for familiar reasons of democratic legitimacy.
One final observation about this point. There should not be, I think, a general principle of constitutional desuetude. Update: Rappaport makes it clear that he is not claiming that there is such a general principle in his latest post. Constitutional powers are meant for the ages; the Constitution contains many provisions that the framers and ratifiers surely hoped would never be invoked. The Constitution contemplates invasions and insurrections, wars and threats to the republican form of government. The powers granted against improbable occurrences should not be construed to disappear simply because the constitutional machinery succeeded for some dozens or hundreds of years in fending off such unlikely calamities. If the President was granted the power to call the Senate into executive session by the Constitution of 1789, then he has that power still. Moreover, I am yet to be convinced that the Constitution may be amended by such expediencies as "transformative appointments" or "structural accommodation." Failure to exercise a power that constitutional prudence would reserve for extraordinary cases does not constitute a precedent for the nonexistence of the power when the extraordinary cases do arise.
All of this is quite tentative, and most of all, I should like to say that I learned enormously from Michael Rappaport's most instructive post. Read Rappaport's Post!
And also see Matthew Yglesias and Paul Jaminet.
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Eric Posner's Law and Social Norms. Eric Posner's book addresses the question, "What is the role of law in a society in which order is maintained mostly through social norms, trust, and nonlegal sanctions?" Posner's answer to this question is developed in three parts. First, he develops a model of cooperation and the production of social norms. Second, he applies the model to a variety of legal contexts, including gratuitous promises, family law, criminal law, voting, racial discrimination, and commercial contracts. Third, he explores the normative implications of his theory, discussing distributive justice, commodification, and privacy--among other topics. This is a rich book, and it defies easy summary, but I think it is an essential work for anyone who intends to do applied legal theory. Posner and other pioneered the explicit exploration of the relationship between law and social norms, and their work has been extraordinarily fruitful. Here is a tiny sample of Posner's prose from early in the book:
Download of the Week This week, the download of the week is Steve Heyman's Ideological Conflict and the First Amendment. Here is the abstract:
Friday, November 14, 2003
Barnett on the Filibuster Conspirator Randy Barnett has an op/ed in the New York Sun on the filibuster. Here is an excerpt:
Machine Guns and Cannabis Brett Thomas argues that United States v. Stewart (blogged here), holding that Congress lacks commerce-clause power to criminalize homemade machineguns, would not extend to homegrown medical cannabis. Here is his argument:
Thomas also argues that Congress has the power to prohibit the distribution of marijuana seeds. Clearly, the rationale of Wickard, as limited by Morrison and Lopez does apply to the sale of marijuana seeds. It is not so clear that it would extend to gifts of homegrown seeds. But the main point is the power to prohibit the distribution of seeds is not the same as the power to prohibit possession and use. And because the power is not the same, the statutory provisions under which defendants could constitutionally be prosecution (or enjoined) is not the same.
Update: More from Brett Thomas.
Is the filibuster of judicial nominees unconstitutional? And if it is, what can be done?
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.
If there is a duty to give advice and consent, then is there a further duty to give such advice and consent in a timely fashion? This question all but answers itself. Surely the Senate cannot fulfill its duty to give the President advice and consent by delaying indefinitely. Rather, the most reasonable interpretation of the Senate's duty is that the Senate must give advice and consent within a reasonable time. What is the outer limit? That, of course, is a difficult question. The structure of the constitution does, however, suggest that the outer limit is the end of the Senate's session--once that limit is reached, the President's recess appointments power comes into effect.
And what about a filibuster? The Senate's cloture rule is not mandated by the constitution; it is an internal rule of the Senate. May the Senate adopt rules that disable the Senate from carrying out a constitutional duty? Arguably not. The constitutional duty to give timely advice and consent arguably entails a duty to adopt rules of procedure that give reasonable assurance that the duty may be fulfilled. A rule that allows a minority of the Senate to delay confirmation of a nominee for judicial office indefinitely is arguably a rule of procedure that is inconsistent with the Senate's duty to give timely advice and consent.
The notion that the Senate has a duty to give timely advice and consent is reinforced by George Washington's letter to the Senate Committee on Treaties and Nominations of 10 Aug. 1789. Here is what he wrote:
If the Senate fulfills that duty of its own accord, by giving the President timely advice and consent, then constitutional prudence would suggest that Presidents should not press the point--that they should allow the Senate to fulfill its duty in the manner of its choosing. But what if the Senate fails to fulfill its duty? What if the Senate allows months to pass without acting on a Presidential nomination?
Here is one possibility. The Presidential power to call the Senate into session as an executive council, although dormant, has not been exterminated. (Update: Indeed, such a power seems to be explicitly recognized by Senate Rule XXIX, which provides, "When the Senate shall be convened by the President of the United States to any other place, the Presiding Officer of the Senate and the Senators shall attend at the place appointed, with the necessary officers of the Senate.") If the Senate will not fulfill its constitutional duty to give advice and consent in a timely fashion in a manner of its own choosing, then the President may exercise his power to call the Senate to the executive offices (the White House) and ask for advice and consent in a reasonable manner of his choosing. So the President might choose to ask each Senator, seriatim, for the Senator's advice with respect to a judicial nominee and after that advice is given, the President could then ask the Senator for her consent.
But what if the Senators refuse to heed the President's call, what then? One possibility is that the President would compel the Senators to attend, an unattractive option. Another possibility is that if a quorum of the Senate does not appear a duly notice executive session, the Senate is then in "recess" for the purposes of the recess appointments clause and the President may fill the vacancy.
So the picture looks like this. The Senate has a constitutional duty to give the President timely advice and consent. If the Senate is willing to fulfill that duty, then constitutional prudence suggests that the President should allow the Senate to do so in a manner of its own choosing. But if the Senate refuses to fulfill the duty, then the President may exercise his long-dormant power to call the Senate into session as an executive council. If the Senate appears, then the President may seek and the Senators must give, advice and consent (or nonconsent as the case may be). If the Senate does not appear, then the Senate is in recess and the President may fill the vacancy will a recess appointment that expires at the end of the Senate's next session.
What do you thinK?
Update: Comments from Matthew Yglesias, Paul Jaminet and Michael Rappaport (whose post is absolutely essential reading).
Further update: For my reply to Rappaport, scroll up or click here.
Roundtable on Law and Religion at the University of San Diego At the University of San Diego's Institute for Law and Philosophy, the Roundtable on Religion. The participants include Stanley Fish, (Illinois, Chicago) and Michael Perry (Emory).
Dual Enforcement of Constitutional Norms at William & Mary William and Mary School of Law is hosting a conference entitled Dual Enforcement of Constitutional Norms on this Friday, November 14. Chief Justice Rehnquist will be the keynote speaker; other participants include Dan Rodriguez (University of San Diego).
Rubin on Compliance at Buffalo At SUNY Buffalo, Ed Rubin (Penn) presents Rethinking Politics and Law for the Administrative State: From Legitimacy to Compliance.
Primo on Budget Legislation at Temple At George Mason's Philosophy, Politics, and Economics series, David Primo (Politics, University of Rochester) presents Open vs. Closed Rules in Budget Legislation: A Result and an Application.
Greenfield on Internal Affairs at UCLA At UCLA, Kent Greenfield (Boston College School of Law) presents The Undemocratic Centerpiece of Corporate Law: The Internal Affairs Doctrine".
Conference at William and Mary Today: Dual Enforcement of Constitutional Norms
Are state and federal constitutional law separate and distinct systems of law, each with its own doctrines, traditions, and dominant norms? If not, how are they related? This conference will bring leading academics together with distinguished federal and state judges to address the question of whether and to what extent state and federal constitutional law may profitably be understood as complementary features of a shared project of elaborating and enforcing constitutional norms.
The Honorable William H. Rehnquist, Chief Justice of the United States, will deliver the keynote address. This conference is co-sponsored by the National Center for State Courts and the Conference of Chief Justices.
Christopher on the Prosecutor's Dilemma Russell Christopher (University of Tulsa College of Law) has posted The Prosecutor's Dilemma: Bargains and Punishments (Fordham Law Review, Vol. 72, October 2003) on SSRN. Here is the abstract:
Fourteenth Amendment at Temple
Berkowitz on Habeas Roger Berkowitz (Benjamin Cardozo School of Law) has posted Error-Centricity, Habeas Corpus and The Rule of Law as The Law of Rulings on SSRN. Here is the abstract:
Thursday, November 13, 2003
Big News on the Commerce Clause: United States v. Stewart The new Commerce Clause jurisprudence (Lopez and Morrison) comes home to roost in the Ninth Circuit's pathbreaking decision today that holds that the federal government may not ban a homemade machine gun. Here is a link to the PDF file. (Via Volokh.) Here are the two key paragraphs of the opinion:
Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one.
As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would “enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Lopez, 514 U.S. at 563.
For more on the implications for medical marijuana, scroll up or click here.
Why Did Tom Harkin Watch The Bachelor Last Night?
Bill Frist was not watching The Bachelor last night--he was at the sit in. Yesterday, Frist had an op/ed in the Washington Times. Here is a taste:
Of course, the debate is more than about mere Senate procedure. The minority is amending the people's Constitution without the people's assent. The reason for this is now well-known. Senate liberals have sought, with increasing intensity, to politicize not just the confirmation process but the courts themselves.
In pursuing this course, liberal Democrats are threatening the legitimacy of America's courts. That legitimacy comes from much more than black robes and a high bench. It comes from the people's belief that judges will apply the law or the Constitution without regard to personal politics.
Rather than seeking to determine the judiciousness of a nominee and whether a nominee will be able to rule without bias, liberal Democrats are out to guarantee that our judges are, in fact, biased against some and in favor of others. In the America that would result, citizens will have to worry about the personal politics of the judge to whom they come for justice.
Neither Schumer nor the Republicans can have it both ways. Of course, you can try to maintain that when decisions go your way, judges are just following the law, but when they go your opponent's way, the decisions must be the result of politics. But that is simply deception and hypocrisy. In my opinion, Schumer's less public remarks reveal his true position. Charles Schumer sees the judicial confirmation process as a struggle for political power. Many on the Republican side of the aisle agree with his diagnosis. But my guess is that many Democrats and Republicans do not agree with the proposition that judges should vote their political preferences. Many on both sides of the aisle still believe that judges should follow the rules laid down and that politicized judging does real damage to the rule of law. Unfortunately, those who advocate the rule of law are finding it more and more difficult to defend this position against the charge that it is pie in the sky. More and more, sophisticated voices maintain that the downward spiral of politicization is now irreversible. Indeed, it appears that both sides now understand the judicial selection process as a prisoner's dilemma. If the Democrats support the rule of law and select formalist judges, then the Republicans can go political, gaining an edge in the third branch. And vice versa, if the Republicans go formalist, then the Democrats can go political. What each party fears most is playing the fool, allowing the other side unilaterally to stack the bench with politicized judges. The outcome of the prisoner's dilemma has been an escalating battle over the judicial selection process, and we have now reached the stage where Democrats are filibustering multiple nominees and the Republicans are talking about going nuclear (using parliamentary maneuvers to eliminate the filibuster option on judicial nominees) or mass recess appointments.
But where does a downward spiral of politicization end? What happens when we complete the conceptual reorientation and see judging as a mere extension of ordinary politics? Nothing good. The bottom of a downward spiral of politicization is a thoroughly politicized judiciary. We know what that looks like. It exists in odd corners of the United States, where lawyers know that winning--even in a run-of-the-mill tort case--is almost entirely a function of how much you have contributed to the local political machine. A thouroughly politicized judiciary is the norm in much of the third world, and the result is that the transparency required for well-functioning markets cannot be achieved--at enormous costs in human welfare. In a thoroughly politicized judiciary, every case is a patronage opportunity or a chance to score political points.
Tom Harkin watched The Bachelor last night. But did he sleep peacefully, his dreams untroubled by the damage that both parties have done to the rule of law? I hope not.
Fleming on Originalism at Yale At Yale's Legal Theory Workshop, James Fleming (Fordham) presents Are We All Originalists Now? I Hope Not!. This should be good! Fleming is taking on what he calls,
Okin on Multiculturalism & Feminism at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Professor Susan Moller Okin (Radcliffe Institute for Advanced Study & Stanford University, Department of Political Science) presents Multiculturalism and Feminism: No Simple Question, No Simple Answers.
Brooks on Covenants & Conventions at Michigan At the University of Michigan's Law and Economic series, Richard Brooks (Yale) presents Covenants & Conventions.
Jaworska on Moral Psychology at Princeton At Princeton's Political Philosophy Colloquium, Agnieszka Jaworska (Stanford University) presents Moral Psychology in Practice: Lessons from Alzheimer's Disease and the "Terrible Twos".
Teson on Global Justice and Free Trade at FSU At Florida State University, Fernando Teson (FSU) presents Global Justice and Free Trade.
Meurer on Patent Claim Scope at BU At Boston University, Michael Meurer presents Invention, Refinement and Patent Claim Scope: A New Perspective on the Doctrine of Equivalents.
American Society for Legal History Today 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.
Conference Today: The State of Play: Law, Games, and Virtual Worlds Today through the 15th, at New York Law School:
Gilson and Kraakman Twenty Years Later Ronald J. Gilson and Reinier Kraakman (Stanford Law School and Harvard Law School) have posted The Mechanisms of Market Efficiency Twenty Years Later: The Hindsight Bias on SSRN. Here is the abstract:
Setear on International Evolution John K. Setear (University of Virginia School of Law) has posted Taking Both Biology and International Law Seriously: Evolutionary Biology, Neo-Realist Theories of International Relations, and the Promise(s) of International Law on SSRN. Here is the abstract:
Baird and Rasmussen on the Conceptual Foundations of Corporate Reorganizations Douglas G. Baird and Robert K. Rasmussen (University of Chicago Law School and Vanderbilt University School of Law) have posted Control Rights, Priority Rights, and the Conceptual Foundations of Corporate Reorganizations (published in Virginia Law Review, Vol. 87, pp. 921-959, September 2001) on SSRN. Here is the abstract:
Chin on the Little-Known Repeal of Section 2 of the 14th Amendment Gabriel J. Chin (University of Arizona - James E. Rogers College of Law) has posted Reconstruction and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth? (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
Wednesday, November 12, 2003
More on Recess Appointments Randy Barnett has an impressive post on the Conspiracy. Stephen Bainbridge analogizes the current standoff to a game of chicken. Pejman Yousefzadeh also has an excellent post. My post post from earlier today can be found here.
Bainbridge argues that the Senate Democratic filibuster is heading at high speed towards the Republican 30 hour minimarathon. Who will swerve?
Goelzhauser is Back . . . with his own blog, at the old address. He continues to blog at En Banc--which, by the way, is a marvelous blog.
Two By Heyman I always enjoy and learn from the work of Steve Heyman, who has two new papers up on SSRN today:
Recess Appointment for Pickering? Or Bork?? Courtesy of Rick Hasen (Election Law Blog), the Hill is reporting that Republican Senators are urging Bush to use the recess appointments power to circumvent Democratic filibusters of Bush's nominees to the United States Courts of Appeals:
Barry at University College, London At University College, London's School of Public Policy: Colloquium in Legal and Social Philosophy, Brian Barry (Columbia) presents Can Social Democracy Survive Cultural Diversity?
Marks on Universal Jurisdiction Jonathan H. Marks (University of North Carolina at Chapel Hill - School of Law) has posted Mending the Web: Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council (Columbia Journal of Transnational Law , Vol. 42, January 2004) on SSRN. Here is the abstract:
Schaefer on National History and Constitutionalism Michael Schaefer (Royal Netherlands Academy of Arts and Sciences) has posted Memory in the Construction of Constitutions (Ratio Juris, Vol. 15, pp. 403-417, 2002) on SSRN. Here is the abstract:
Tuesday, November 11, 2003
Wallace Reviews Joyce on the Myth of Morality On the wonderful Notre Dame Philosophical Reviews, R. Jay Wallace (University of California, Berkeley) reviews Richard Joyce's The Myth of Morality, Cambridge, 2002, 264pp, $60.00 (hbk), ISBN 0521808065. Here is a taste:
More on IP Theory and the Capacious Water Well Eugene Volokh and I had an exchange on IP theory some time back (Volokh--Solum--Volokh--Solum), which has now has provoked a reaction form Cyberbug. Surf on over.
Prakash on Federal Abortion Legislation and the Commerce Clause Over at The Right Coast, Sai Prakash has some illuminating remarks about the partial-birth abortion legislation and Congress's power under the Commerce Clause.
Welcome to the Blogosphere . . . to Bronson Yake whose new blog is Right to the Point.
Welcome to the Blogosphere . . . to Keith Burgess-Jackson's new AnalPhilosopher. Analytic?
Conference Blogging: Leiter Raises An Important Question, Part One Brian Leiter has posted an extremely negative reaction to my blogging (which begins here and ends here) from the Rawls and the Law Conference at Fordham University over the weekend. Please read his very thoughtful remarks, which conclude: "I would urge Larry Solum, who otherwise provides a valuable service, to stop blogging conferences." On the other side of the fence, I recieved dozens of postive comments via email and in the blogosphere. I note this comment from Micah Schwartzman on Crooked Timber:
So this leads me to the larger question: should there be public comment (in the blogosphere) on scholarly presentations at a public conference? I would take it that no one would maintain that such comments are out of bounds in private, at the event or subsequently (including in forms that take on a semi-public character, e.g. forwardable emails). The questions is: is it fair to speakers and to readers (my readers, in this case) to give real time reactions to talks as they occur. On the up side, of course, reporting of an academic event provides a venue for bringing attention to the ideas that are presented and discussed. On the down side, however, any comments that go beyond mere reportage will, of necessity, present only one side of the story. So, for example, my blogging revealed that I liked some papers better than others, that I thought some ideas were brilliant and others weak, and that some of the talks were well done (as acts of communication) while others were not. Is there a risk that blogging from a conference will cement a one-sided view, doing a disservice to those who were involved and to readers who may take the report as the final word rather than as one blogger's opinion?
Because academic blogging is relatively new, this question deserves careful reflection. Let me share some preliminary thoughts with you. I would also like to invite feedback, both from other bloggers on their blogs and from readers in the form of email (firstname.lastname@example.org). In random order, here are some of my initial reactions to the issues that Leiter raises:
Please let me know what you think! There will be more on this topic in the next few days.
Brian Leiter has more to say here in an attempt to defend his earlier remarks.
Another Twenty Questions Over at Another Rice Grade, you will find 20 Questions (with answers) for Clint Bolick (Vice President and Co-Founder of the Institute for Justice).
Fuchs on Selective Conscientious Objection at Oxford At Oxford's Jurisprudence Discussion Group, Amir Fuchs presents The Fallacies of Objections to Selective Conscientious Objection.
Chin on Software Antitrust Analysis at Oxford At Oxford's faculty of law, Andrew Chin presents Antitrust Analysis in Software Product Markets.
Dessemontet on IP Arbitration at Oxford At Oxford's IP Seminar, François Dessemontet presents Arbitration and Intellectual Property Law.
Penney on Crime in the Digital Age Steven Penney (University of New Brunswick - Faculty of Law) has posted Crime, Copyright, & the Digital Age (WHAT IS A CRIME? CRIMINAL CONDUCT IN CONTEMPORARY SOCIETY, Law Commission of Canada eds., UBC Press, 2004) on SSRN. Here is the abstract:
Liu on the Copyright Consumer Joseph P. Liu (Boston College - Law School) has posted Copyright Law's Theory of the Consumer (Boston College Law Review, Vol. 44, 2003) on SSRN. Here is the abstract:
Monday, November 10, 2003
Muller on Racial Profiling Is That Legal's Eric L. Muller (University of North Carolina at Chapel Hill - School of Law) has posted Inference or Impact? Racial Profiling and the Internment's True Legacy (Ohio State Journal of Criminal Law, Vol. 1, No. 1) on SSRN. Here is the abstract:
Weekend Wrap Up On Saturday, the Legal Theory Bookworm and the Download of the Week made their regular appearances. On Sunday, the Legal Theroy Lexicon explored the idea of Public Reason and the Legal Theory Calendar previewed the talks, conferences, and workshops for this week. Also over the weekend, there was extensive coverage of the Rawls and the Law conference at Fordham. Coverage begins here and ends here.
Abizadeh on Nationalism and Democratic Legitimacy at Chicago At the University of Chicago's Political TheoryWorkshop, Arash Abizadeh (McGill University) presents On the Demos and its Kin: Nationalisms and Democratic Legitimacy.
Cole on Terrorist Guilt by Association at Loyola Marymout At Loyola Marymount, Loyola Law School, David D. Cole (Georgetown University Law Center) presents Guilt by Association and Terrorist Financing. Update: Ted Seto writes that the paper actually delivered was "Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis," and not the paper reported on Loyola's website.
Okin on Rawls & Feminism at Chicago At the University of Chicago's Legal Philosophy series, Susan Okin (Political Science, Stanford University) presents Rawls and his Feminist Critics: Debating Justice and Gender.
Sander on Affirmative Action in Legal Eduction at UCLA At UCLA, Rick Sander presents A Systematic Analysis of Affirmative Action in American Legal Education.
Bohnet on Investing in Trust at Columbia At Columbia's law and economic series, Professor Iris Bohnet (Harvard University, Kennedy School of Government) presents Is Trust a Bad Investment?, authored with nava Ashraf and Nikita Piankov.
Crommelin on National Security & Constitutionalism Michael Crommelin (University of Melbourne - Faculty of Law) has posted Constitutional Challenges Posed by National Security: An Australian Story on SSRN. Here is the abstract:
Caudill & LaRue on Daubert David Caudill and Lewis LaRue (Washington and Lee University - School of Law and Washington and Lee University - School of Law) have posted Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional and Rhetorical - and Not Just the Methodological - Aspects of Science (Boston College Law Review, Vol. 45, p. 1, 2003) on SSRN. Here is the abstract:
Sunday, November 09, 2003
Legal Theory Lexicon: Public Reason
Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.
Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.
Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.
Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.
One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.
The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth. For an example of a recent discussion of these issues, take a look at my post on the public reason session at Fordham's recent "Rawls and the Law" conference--here.
Legal Theory Calendar
At Loyola Marymount, Loyola Law School, David D. Cole (Georgetown University Law Center) presents Guilt by Association and Terrorist Financing.
At the University of Chicago's Legal Philosophy series, Susan Okin (Political Science, Stanford University) presents Rawls and his Feminist Critics: Debating Justice and Gender.
At UCLA, Rick Sander presents A Systematic Analysis of Affirmative Action in American Legal Education.
At Columbia's law and economic series, Professor Iris Bohnet (Harvard University, Kennedy School of Government) presents Is Trust a Bad Investment?, authored with nava Ashraf and Nikita Piankov.
At Oxford's faculty of law, Andrew Chin presents Antitrust Analysis in Software Product Markets.
At Oxford's IP Seminar, François Dessemontet presents Arbitration and Intellectual Property Law.
At George Mason, Oren Barr-Gill is presenting today.
At Oxford, Guy Goodwin-Gill presents the Annual Harrell-Bond Lecture, Refugees and Their Human Rights.
At NYU's Colloquium in Legal, Political and Social Philosophy, Professor Susan Moller Okin (Radcliffe Institute for Advanced Study & Stanford University, Department of Political Science) presents Multiculturalism and Feminism: No Simple Question, No Simple Answers.
At Florida State University, Fernando Teson (FSU) presents Global Justice and Free Trade.
At the University of Michigan's Law and Economic series, Richard Brooks (Yale) presents Covenants & Conventions.
At Boston University, Michael Meurer presents Invention, Refinement and Patent Claim Scope: A New Perspective on the Doctrine of Equivalents.
At Princeton's Political Philosophy Colloquium, Agnieszka Jaworska (Stanford University) presents Moral Psychology in Practice: Lessons from Alzheimer's Disease and the "Terrible Twos".
Today 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.
Update: William and Mary School of Law is hosting a conference entitled Dual Enforcement of Constitutional Norms on this Friday, November 14. Chief Justice Rehnquist will be the keynote speaker.
At SUNY Buffalo, Ed Rubin (Penn) presents Rethinking Politics and Law for the Administrative State: From Legitimacy to Compliance.
At George Mason's Philosophy, Politics, and Economics series, David Primo (Politics, University of Rochester) presents Open vs. Closed Rules in Budget Legislation: A Result and an Application.
At Temple University, the Temple Political & Civil Rights Law Review is hosting a conference entitled Vision and Revision: Exploring the History, Evolution and Future of the Fourteenth Amendment. Ted Shaw, Akhil Amar, Erwin Chemerinsky, Sylvia Law and many others will be presenting.
At UCLA, Kent Greenfield (Boston College School of Law) presents The Undemocratic Centerpiece of Corporate Law: The Internal Affairs Doctrine".
Saturday, November 08, 2003
Blogging from Rawls and the Law, Part 12: Thank you! Rawls and the Law was a really terrific event, with a remarkable share of truly fine papers and a good deal of productive and interesting discussion. I want to express my thanks to Fordham Law School for supporting this event, and especially to Jim Fleming, who organized it. I know from experience how much work an event like this requires: Jim did an amazing job.
The twelve posts in this series span over two days. This is the last post in the series. The Fordham Law Review will publish a very big, fat issue based on the conference paers. I will certainly purchase a copy for my bookshelf!
Rawls and the Law, Part 11: Public Reason Revisited
Freeman says that the role of public reason is to justify the constitutional essentials, but that raises the question: “Is public reason up to this task?” So take abortion: How can we justify the constitutional treatment of abortion without going beyond public reason? Freeman rehearses Rawls’s argument that political values can give a political answer to the question whether there should (or should not) be a right to abortion. Freeman adds that in Roe, the Supreme Court did, in fact, duck the metaphysical question, and instead relied on the concept of legal not moral personhood. By analogy, for Rawls, the answer would lie in the political conception of the person. But what if some reasonable citizens think abortion is murder? Freeman quotes Rawls, “Public reason is addressed to citizen as citizens.” And then Freeman quotes Rawls, reciprocity is reciprocity among citizens qua free and equal citizens. It is not required that everyone be convinced by public reason. So, for example, Quakers cannot accept the politically reasonable conclusion that war is sometimes justified. This does not make them unreasonable, but it does make their stand on war “politically unreasonable.” Which views are reasonable comprehensive views is a different question than the question as to what the content of public reason is.
Now Freeman moves to item number two, that public reason, because it brackets truth, may be influenced by ideas that are false—an objection associated with Joseph Raz. Freeman points out that Rawls simply does not hold the view that the content of public reason is determined by the content of comprehensive doctrines.
Freeman was great. I wished he had a lot more time.
Now Greene has three objections to Rawls:
(2) Greene argues that the exclusion of religious reasons for legislation undermines the legitimacy of law for citizens whose reasons have been excluded. So, we should relax the bindingness of the law for those persons.
(3) Greene argues that exclusion of comprehensive doctrines that do not themselves support such exclusion discriminates against them as compared to the exclusion of comprehensive doctrines that do support their own exclusion. Greene argues that compensation must be offered for this discrimination.
Greene was moving very quickly, and also trying to cover an awful lot of ground, making his presentation very difficult to follow.
Samuel Freeman answering a question got to one of the most important changes in Rawls’s late philosophy—his move to the idea that justice as fairness would not be the only theory of justice accepted by reasonable citizens in a well-ordered society. Freeman gave an interpretation of Rawls on this point that I do not full agree with. Basically Freeman thought that all the members of the family would agree on the first principle and the basic content of the second principle, but would disagree on fair equality of opportunity and the fair value of the political rights. I think Rawls does (and can) admit of more disagreement than that, but I cannot elaborate now.
And then, the most dramatic exchange of the whole conference arrived, with Dworkin and Freeman going back and forth on public reason. Dworkin pressed Freeman on a point in his paper, “Why does the fact that public reason is addressed to citizens in their political capacity make any difference?,” Dworkin asked. Freeman then rehearsed his argument, and pressed back, reminding Dworkin that Dworkin could argue from his comprehensive doctrine, but that Rawls’s idea of public reason would ask Dworkin to also provide a “public reason.” Dworkin then replied, essentially saying that he did not see what was nonpublic about reasons drawn from a comprehensive moral theory.
Dworkin’s strategy here was to use the kinds of nonpublic reasons that he (Dworkin) would offer. For example, he might argue for an ideal of equality based on the moral value of enabling each person to realize their full capacities. (I’m sure that is not quite what Dworkin said, but you get the idea.) “Why can’t I say that?” After Freeman’s answer, the question becomes, “Why do I (Dworkin) have to say more than that?” Dworkin’s example, however, is one of the closest cases, because his argument, although it draws on a deeper moral view, is very close to a public reason, e.g. it is simply a deep reason for the fundamental equality of citizens. The very statement of the full argument includes within it, public reasons. So Dworkin’s example is a bad one. A better example is a reason drawn from a comprehensive doctrine that is not itself bound up with a public reason. So, for example, take these examples: (1) someone justifies a constitutional prohibition on aid to religion on the ground that all religions are false and that it is an improper expenditure of public funds to aid in the inculcation of false beliefs; (2) someone argues that the freedom of speech should always be interpreted via a balancing test because the only source of ultimate value is pleasure and the absence of pain, and hence it is wrong to protect speech when that protection has net negative hedonic value; (3) someone argues that abortion should be prohibited on the ground that fetuses are ensouled at the moment of conception, and therefore it is murder to abort a fetus. Now Dworkin might argue in reply that he can exclude these reasons from judicial decision making on another ground—that these reasons would be bad ones given the history of our institutions. (I’m not sure, but concede this for the sake of argument.) But that is not the point of the examples. The point of the examples is that in each case the reasons offered is one that citizens (in their capacity as citizens) would find inaccessible. Thus, if I am a theist, I might find reason one inaccessible. If I am a Kantian, I might find reason two inaccessible. If I am an atheist, I might find reason three inaccessible. What does inaccessible mean? It means that these are reasons that I cannot accept given my own reasonable comprehensive doctrine of the good. But couldn’t you give up your comprehensive conception? Sure I could. But that’s the point. Good citizens don’t ask their fellows to give up their reasonable comprehensive conceptions in public political debate or as the author of a judicial decision or as a legislature speaking on the floor of a legislative chambers about the constitutional essentials. An example, it was unreasonable for Justice Burger to ground his dissent in Bowers v. Hardwick in a particular theological tradition (i.e. the Judeo-Christian tradition), because this argument could not be accepted as reasonable by citizens who were Buddhist or atheist. Likewise, it would have been unreasonable for Justice Kennedy to counter that argument by stating that this view of the Judeo-Christian tradition had been rejected by the true religion (whatever that might be). I’m sure Dworkin has a comeback. I wonder what it is.
Blogging from Rawls and the Law, Part 10: Property, Taxation, and Distributive Justice
(2) Does a fair society owe anything to parents? So what, if anything, do we owe parents? Parents bear the cost of not exiting. It is good for children and costly for parents. The no-exit obligation is unusual; it is like the military, prison, and childhood. Alstott is not saying there is a legal obligation, but a normative and aspirational obligation. So, should society alleviate this burden? It should. We cannot make parents whole, but we can recognize that no-exit forecloses options. Alstott says it is fair to expect continuity of care and fair to alleviate the burden.
(3) If so, what does society owe parents? Alstott recommends a ?caretaker resource account,? a fund upon which parents can draw.
I was mildly disappointed in Cooter?s failure to relate his proposal to Rawls?s theory in any substantial and systematic way. Here are few rough thoughts about the connections:
(2) Cooter might be arguing that even in the case of ideal theory, where we are in a society in which the two principles are satisfied, the question arises as to which institutions can best implement the difference principle. He might then argue that at least some of the required distribution would better be accomplished through voluntary, private giving. Why?
(b) Cooter might argue that charity is preferable because it is voluntary, involving less interference with individual life plans than the alternative. This argument, however, runs into fairness problems--because the burden of charity will not fall evenly (with some giving and some not).
(c) Cooter might argue that charity has good educative effects. For example, encouraging charity may lead to greater understanding of and social support for the two principles. Again, this would give Cooter a reason for favoring charity that would be Rawlsian ins spirit.
Seana Shiffrin suggests that letters from the IRS (as opposed to a website) would provide the information, without public shaming. Cooter says that would be ok too, but he thinks it is an obligation to give one?s fair share and hence publicity (does he mean shaming?) is appropriate.
A question to Alstott, should we redistribute to child-rearers if we have a just distribution otherwise and if we also eliminate gender-discrimination. Alstott says we have an obligation to give children continuity of care. I must have missed something, because Alstott?s answer seemed to provide everything except an argument.
Susan Moller Okin asked a question about what counts as charity, arguing that opera is only a charity if the donation comes from those who hate opera. Okin also argued that the Catholic church builds expensive cathedrals and that donations to the Mormon church support ugly buildings. I found Okin's question puzzling. I'm sure Okin did not intend deliberate offense to Catholics and Mormons, but her remarks struck me as likely to offend and as pushing the bounds of civility.
All and all, a most stimulating session.
Blogging from Rawls and the Law, Part 9: Tort
Download of the Week The download of the week is Elizabeth Garrett 's paper Framework Legislation. Here is a taste:
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Dennis Patterson's Law and Truth. Here is the blurb:
Friday, November 07, 2003
Blogging from Rawls and the Law, Part 8: The Law of Peoples
The Law of Peoples sets out Rawls's theory of international justice, but it may not be the theory you expect. In the domestic case, Rawls has a very strong liberty principle, but internationally, societies are entitled to membership in the society of nations even if they fall fairly far short of the ideal of a liberal society. Domestically, Rawls has a difference principle that requires inequalities work to the benefit of the least advantaged. Internationally, Rawls permits far greater disparities of wealth.
Second, Rawls does not require that societies do not need to comply with all of the basic liberties as a matter of the law of peoples.
But, asks Macedo, isn’t there an international basic structure? Macedo recognizes that there are international institutions, but claims that nations really are different.
And, asks Macedo, what about individual human rights? Very often, says Macedo, this will be the case. But not always. So, to count as a decent society, there must be real consultation of all groups. The conception of the good must aim at the good at all, not just some. Oppressed groups must really be represented. In other words, Macedo claims, these conditions are quite tough; they are designed to insure that the illiberal societies are really self governing.
Macedo covered an incredible amount of ground!
Pogge quickly gets to an important issue. Domestically, for Rawls, only individuals count. Internationally, only peoples count. How can this be? In the domestic case, the parties adopt a theory of justice—details come later in the four stage sequence. In the international case, however, the eight principles of international law are directly endorsed. Pogge’s analysis is fairly dense—not really suitable to blogging—but one of his major ideas is that the asymmetries between the national and international cases seem arbitrary. The original position is set up differently, with dramatically different consequences, but (Pogge asserts) Rawls does not justify these differences.
This criticism seems quite fair, so far as it goes. When the The Law of Peoples was first published, I participated in a close reading group. Over and over, it seemed to me (and other members of the group), Rawls was only sketching his view in The Law of Peoples, leaving it for others to fill in the arguments.
Blogging from Rawls and the Law, Part 7: Equal Citizenship: Race and Ethnicity
Frank Michelman asked Shiffrin how the principle would be spelled out, e.g. would it require colorblindness or what? Shiffrin has a very nice come back, that the principle would be no vaguer than other components of the first principle.
Blogging from Rawls and the Law, Part 6: Equal Citizenship: Gender
The whole theory is masculinist in its assumptions, i.e. that the original position is the epitome of atomistic liberal man. Okin comments that this criticism was flawed, because it was based on a misunderstanding of the original position and because she believes that Rawls’s theory can be plausibly read as combining a rights-based theory of justice with an “ethic of care,” Why this latter point? Because the original position forces the representatives behind the veil of ignorance to have concern for everyone.
Gender equality is simply left out of Rawls’s theory. For example, gender is not explicitly placed behind the veil of ignorance. Moreover, the idea of that the parties behind the veil of ignorance of “heads of families,” which Rawls subsequently abandoned, may have an unstated male bias. In addition, Rawls assumed families were just, but did not investigate this question. Political Liberalism made the problem worse, because it seems to rely on the public/private distinction, and hence, his theory seems to allow as reasonable “conceptions of the good,” various views, including religious views, that exclude women. For example, both the Old Testament and Catholicism are anti-feminist. In the late essay, “Public Reason Revisited,” Rawls seems to exclude the internal structure of the family is outside the limits of justice.
Okin ends by asking, “Why not apply principles of justice to families?”
Chris Naticchia asked a very good (but perhaps overly long) question about religious associations and the requirements of a reformed, more feminist version of Rawls’s theory. By way of answer, Susan Okin suggested that gender-discriminating religions should not receive any public support (e.g. no tax exemptions), but that they could be allowed to exist—so long as children were not allowed to be indoctrinated by the religion, e.g. no child could exclusively attend a school that taught the gender-discrimination religious doctrines.
Seyla Benhabib asked a question about the original position, suggesting that the issue was one of moral epistemology. She also noted that there were connections between Rawls’s position on feminist issues and some of the issues that arise in The Law of Peoples. Why not shift the debate to democratic politics in civil society? Okin responded to the first point—re the original position—by arguing that the original position requires one to think about everyone’s position in society. How do you do that? Okin says, by learning about what it is like for persons whose positions are different than your own.
Blogging from Rawls and the Law, Part 5: Ronald Dworkin’s Keynote Address
Dworkin begins by noting that the topic, Rawls and the Law, could be attacked from many angles. How has Rawls influence lawmakers? What are the implications of Rawls’s theory for various areas of law? Or we might ask, how American constitutionalism influenced Rawls’s theory? But Dworkin’s question will about Rawls and a legal philosopher and legal theorist. Rawls, says Dworkin, speaks to the central issues of legal philosophy. Because legal philosophy is a branch of political philosophy, Rawls speaks to a variety of issues that concern legal philosophers. He offers some examples:
What is the character of the enterprise of thinking about what law is? And once we have a methodology, then what is the best theory of law.
And from that question, we could go to questions about constitutional theory, i.e. the classic question, “is judicial review antidemocratic?”
And another question is whether a constitutional court ought to go gently in the face of divisive political controversies that are brought to law (abortion, school prayer, etc.).
Finally, Dworkin hopes to speak to the question of the truth or objectivity of claims in the various domains of value, e.g. the question whether legal propositions can be objectively true. Dworkin points out that legal realism gave a negative answer to this question. The question of objective truth, Dworkin says, is especially important to the law—because of the fact legal disagreement. For example, lawyers disagree about market-share liability in tort law, but if the disagreement is to be genuine, then there must be some background theory that explains what the disagreement is about.
Dworkin says that Rawls spoke to the issue of what legal philosophy should be like, by example. Rawls began with the distinction between the concept of justice and particular conceptions of justice, which are substantive theories answering the questions, “what is just and what is unjust?” The assumption for Rawls is not that people agree about what is just. Rather, what makes disagreement about justice meaningful, is that we agree about specific cases. We agree slavery is unjust, for example. So the enterprise is “reflective equilibrium,” in which we generate principles of general scope and attempt to match them to our considered judgments about particular cases. Dworkin says, We legal philosophers can follow that example. We can identify the noncontroversial cases of things that are law. And we have an abstract concept, of law, or legality, or the rule of law. We can seek a reflective equilibrium between our judgments about concrete cases and an abstract understanding of the concept of law. That, Dworkin says, is what legal philosophers have always done.
If you approach legal philosophy in that way, then what conception of legal philosophy is, in fact, best? There are, Dworkin says, two classic positions. Positivism, which claims that law is a matter of fact, and antipositivism, which claims that law is a matter of value. Rawls, says Dworkin, did not speak directly to that question.
But suppose, Dworkin, that the representative parties in the original position were asked to choose between two views of the legal system—a simplified positivism that limits the role of judges to interstitial legislation, and a simplified version of interpretivism, which asks judges to make the decision that accords with the theory that best justifies the law. So, how would the parties deliberate in the original position? Dworkin then makes an interesting point, that if the parties in the original position had chosen utilitarianism (instead of the two principle of justice), then they would choose positivism as their theory of law. Why? Because a central planning authority, Dworkin argues, can best maximize utility. Judges are ill suited to the task of making decisions that will maximize utility. By similar reasoning, Dworkin argues, that the representative parties in the original position who have chosen the two principles would also be led to affirm interpretivism as their theory of law. Dworkin then argues equality and the maximin rule for choice in the original position would also support interpretivism.
Dworkin is extemporizing, so it is unfair to judge his argument on the basis of the oral presentation, but this argument seemed quite slippery. The joints of the argument went passed rather quickly, but, for example, Dworkin’s maximin argument seemed woefully underdeveloped.
Now, Dworkin turns to Rawls’s discussion of the rule of law, and focuses on Rawls’s discussion of the role of consistency in a common-law system in preventing arbitrary decision.
At this point, Dworkin changes topic to the question of legitimacy. Institutions, says Dworkin, are to be judged by the outcomes they produce as measured against the criteria provided by the two principles of justice. Rawls does not, for example, say that the American system of judicial review does the best job of producing the best outcomes. But Rawls did say that the program of judicial review that we have in the United States, while it limits parliamentary sovereignty does not eliminate popular sovereignty. Rawls cites Ackerman’s discussion of a new deal constitutional moment to illustrate this point. Rawls also says that in evaluating a constitutional structure, we must ask how well it protects the fundamental liberties. Judicial review, Dworkin argues, may help citizens to develop the two moral powers. How? By putting these issues into a forum of principle (rather than politics), may have an educative effect. (“Educative” is my gloss on Dworkin’s point.)
Rawls said that he hasn’t made up his mind about whether the Supreme Court should have waited to make its abortion decision. He says something similar about the assisted suicide case. Rawls had endorsed the so-called “Philosophers Brief,” in that case. But Rawls says, that there is a good argument on the side—the argument advance by Cass Sunstein—that it was premature to decide the question given the deep disagreement about the issue. Criticizing Rawls, Dworkin argues that these arguments for delay are bad arguments. The issues in these cases are claims of fundamental rights; the parties to these cases are entitled to liberty now and civil peace cannot justify denying the individuals their rights. Dworkin then argues that delay would not have resulted in a political resolution of the abortion controversy similar to that which has now been reached in Europe—because Europe lacks the fundamentalist groups that are present and political important in the United States.
Dworkin now turns to the part of his talk that is most critical of Rawls. Dworkin suggests that he has doubts about the idea of public reason. "Has doubts" is Dworkin's polite way of saying that he believes that Rawls was simply dead wrong about this. Rawls argument for an ideal of public reason was based on what Rawls called "the liberal principle of legitimacy." The constitutional essentials, Rawls claimed, should be justifiable on the basis of public reasons, and public reasons are those that are shared by citizens (e.g. the uncontroversial facts established by history and science, common sense, and public political values). The idea of reciprocity implicit in Rawls's idea of public reason, says Dworkin, will not work. If you believe something passionately, Dworkin argues, then you will believe that everyone else who is reasonable will accept that thing. Moving very quickly, Dworkin then argues that the case for the difference principle must rest on a comprehensive moral doctrine. And turning to abortion, Dworkin says that resolution of the issue must be drawn from a comprehensive moral theory (in particular, a conception of who/what counts as a moral person). Dworkin argues that judges must rely on their own moral beliefs, but that our tradition rules out certain kinds of beliefs as reasons, e.g. religious reasons.
I am reacting to Dworkin's oral remarks in real time, and not a written text. Moreover, Dworkin was rushing, so it is difficult to assess his arguments on public reason. Nonetheless, his moves seemed awfully quick and underdeveloped to me. For example, Dworkin asserted that if you believe something passionately, then you also must believe that any reasonable person would or could also believe that thing. But this argument fails to clash with Rawls's arguments as to why this is not so. Rawls developed an account of what he called "the burdens of judgment." In a pluralist society, we come from different backgrounds and affirm a variety of different religious and philosophical doctrines. Given these differences, Rawls argues, we come to recognize that other people who are reasonable will not come to agree with us about fundamental matters. So, for example, a reasonable theist could not be expected to accept as a reason for one of the constitutional essentials the proposition that God does not exist. And vice versa, a reasonable atheist could not be asked to accept as the basis for an interpretation of the right of religious liberty, the proposition that atheists will be eternally damned. Of course, not everyone accepts this kind of reasonable disagreement. There are dogmatists of every stripe who believe that only their own comprehensive views about the meaning of life and ultimate good are reasonable, and that everyone who disagrees is unreasonable. Perhaps, Dworkin meant to endorse this kind of dogmatism, but this would not be a minor disagreement with Rawls. Rather, it would be a rejection of a fundamental premise of Rawls's theory of justice--the citizens are equal in the sense that they possess the two moral powers and hence that each individual has the power to form, reflect on, and revise her own conception of the good. I do not see how Dworkin can reject the fact of reasonable pluralism without also losing Rawls's conception of the person, and once Dworkin has jettisoned all this, it is hard to see how Dworkin's views could, in any meaningful sense, be seen as Rawlsian views.
Finally, Dworkin turns to the question of objectivity and truth, and to Rawls’s remarks on this in Political Liberalism. First, disagreement (even persistent disagreement) is not evidence against truth. Second, it would be a mistake to suppose that the idea of objectivity in the moral or legal domain requires metaphysical backing. But, Rawls added, but if we want to claim that we say is true, then we have a responsibility to integrate that judgment into a cohesive whole. (Dworkin then quotes an extended passage from Political Liberalism on political constructivism and slavery.) Coherent connection and due reflection are required for truth.
At the very end, Dworkin confesses that his interpretation of Rawls makes Rawls very much like Dworkin.
It was a typical Dworkin performance. Brilliant at points, but rushed and underdeveloped at others. Like many talks Dworkin has given in recent years, it has a sort of rough unfinished feel. What shines through, however, is Dworkin’s deep respect for and engagement with the ideas of John Rawls.
Blogging from Rawls and the Law, Part 4: The Constitutional Essentials of Political Liberalism
Sager replies, stating that he agrees with everything that Michelman has said.
Fleming replies to Scanlon, initially by noting that his own view, although Rawlsian, is not necessary Rawls’s own view. He then makes a revealing point—that is analysis was guided by his intuitions about how the cases should come out. In other words, results first, theory second. I am severely distracted, because Ronald Dworkin has just come into the room and is now sitting next to me.
Sager makes a comparative point, suggesting that in many European jurisdictions hate speech, although banned in ordinary discourse, would be allowed in a serious novel (and presumably, films or scholarly works, as well).
Tim Scanlon emphasized that he had not come down on one side or the other of the hate speech question, but rather that his goal was to show that both sides of the hate speech debate were represented in Rawls’s own work.
Blogging from Rawls and the Law, Part 3: The Insider's Guide to Rawls Terminology This is the third installment of blogging from the big Rawls and the Law conference at Fordham law school. Scroll down for details on the conference, which begins the morning and runs through tomorrow. Since I am likely to be throwing around quite a bit of Rawlsian jargon, I thought I would provide a quick guide to some of the most important concepts and abbreviations:
The Liberty Principle. The first of Rawls's two principles of justice; the liberty principle guarantees to all citizens a fully adequate scheme of basic liberties.
The Difference Principle. The second of the two principles, the difference principle requires that social and economic inequalities work to the benefit of the least advantaged group in society and be attached to positions that are open to all on the basis of fair equality of opportunity.
Lexical ordering. The two principles are lexically ordered. The first principle must be satisfied, before the second principle kicks in.
Justice as fairness. "Justice as fairness" is the official name that Rawls gives to his theory. He uses "Justice as rightness" to refer to a related view, which is a comprehensive moral doctrine and not just a theory of political morality.
The Original Position. This is a thought experiment in which representative parties deliberate behind a veil of ignorance and choose between the two principles and rival theories of justice, such as utilitarianism.
Reflective equilibrium. Rawls did not believe that he could demonstrate that justice as fairness follows deductively from first principles. Rather, he suggested that his views could be justified by the method of reflective equilibrium, by which we adjust our general principle of justice in light of our considered judgments about particular cases and abstract principles. When all of our judgments are consistent, we are in reflective equilibrium.
Political Liberalism. This is the name that Rawls gave to his later views as modified to take into account criticisms of TJ. Political liberalism is a political view and not a metaphysical view. It flows from ideas that are accepted in a modern democratic society and is not based on a metaphysical doctrine of the nature of persons.
Overlapping Consensus. Rawls believed that justice as fairness could be stable (or self-reproducing) despite the fact that persons in a free society will inevitably disagree over ultimate questions of morality and religion. Rawls argued that this stability is possible because justice as fairness could be the subject of an overlapping consensus among the adherents of a variety of comprehensive moral, religious, and philosophical doctrines.
Public Reason. Public reason is simply the shared reasons of citizens. Nonpublic reasons, on the other hand, are those which are limited to particular groups, such as the reasons that are internal to particular religions or to comprehensive philosophical theories of the good. Public reason includes the shared values of the political culture (such as the equality of citizens) as well as logic and mathematics, common sense, and the noncontroversial results of science.
Blogging from Rawls and the Law, Part 2: A Very Short Annotated Bibliography This is the second installment of blogging from the big Rawlsfest at Fordham Law School. The sessions will be starting in another hour or so, but in the meantime, I thought I would provide bits and pieces of background material.. A few months ago, I prepared a very short annotated bibliography of Rawls's works and some of the secondary literature, and I thought this would be a good occaision to share it with you. Here goes:
Blogging from Rawls and the Law, Part 1: A Biographical Sketch This morning I am blogging from Rawls and the Law, the big Rawlsfest at Fordham Law School near Lincoln Center in New York. You can scroll down to the next entry for details on the conference.. Before I begin reporting on the sessions, I thought I'd give you just a bit of background. Let's start with his life. John Rawls was the single most important political philosopher of the twentieth century. Here is a brief biographical sketch from the open source wikipedia:
Rawls and the Law at Fordham Today and tomorrow at Fordham, the big Rawls and the Law fest. It is Friday morning, and I took the red eye from San Diego last night. I'm sitting in the Starbucks on Columbus circle, preparing to blog what promises to be the legal theory event of 2003. Here are the details:
Duff at Oxford At Oxford's Jowett Society, Antony Duff (Stirling) is lecturing, but I lack a title.
Go anyway, whatever Duff is doing, it is bound to be good!
Lawrence v. Texas Symposium at Ohio State At Ohio State, a symposium on Lawrence v. Texas with Martha Nussbaum, Cass Sunstein, Catharine A. MacKinnon, and others.
More at Lee Blog!
Slaughter gives the Alec Roche Lecture at Oxford At Oxford, Anne-Marie Slaughter (Princeton) presents Alec Roche Annual Lecture in Public International Law.
Wilkinson on Commodification of the Body At the Society for Applied Philosophy in London, Steven Wilkinson (Keele) & Carol Jones (University of Wales, Cardiff) present Commodification of the Body: Ethical Issues.
Midgley at the Royal Instiute of Philosophy At the Royal Institute of Philosophy in London, Mary Midgley presents Souls, Minds, Bodies and Planets.
Heuer on Buck Passing at Tulane At Tulane's Center for Ethics and Public Affairs, Ulrike Heuer (University of Pennsylvania) presents Buck-Passing. On the Relation of Values and Reasons for Actions.
Philosophy of Language at Yale At Yale's Philosophy Department, there is a conference entitled Themes in Philosophy of Language, participants include: David Kaplan, Robert Stalnaker, Timothy Williamson, Anne Bezuidenhout, Jennifer Hornsby, Sean Kelly, John Mcfarlane, David Sosa, Katalin Balog, Keith Derose, Michael Nelson, Paul Pietroski, Ted Sider.
Murray at ANU on Traditional Leaders and Democracy At Australian National University, Christina Murray (University of Cape Town) presents South Africa's Troubled Royalty: Traditional leaders after democracy, the Annual Geoffrey Sawer Lecture.
Ewing on Ethics and Counter-Terrorism at Buffalo At SUNY Buffalo, Chuck Ewing presents Ethical Dilemmas Faced by Psychologists Working for the Government in Intelligence and Counter-Terrorism Work.
Juratowitch on Retroactive Criminal Liability at Oxford At Oxford's Human Rights Discussion Group, Ben Juratowitch presents The Prohibition on Retroactive Criminal Liability in International Human rights Law.
Charles on Colored Speech Guy-Uriel Charles (University of Minnesota School of Law) has posted Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits? on SSRN. Here is the abstract:
Women Lawyers & Income Disparity Joni Hersch (Harvard University - Harvard Law School) has posted The New Labor Market for Lawyers: Will Female Lawyers Still Earn Less? (Cardozo Women's Law Journal, Vol. 10, No. 1, Fall 2003) on SSRN. Here is the abstract:
Kaplow on Redistribution Louis Kaplow (Harvard Law School) has posted Concavity of Utility, Concavity of Welfare, and Redistribution of Income on SSRN. Here is the abstract:
Thursday, November 06, 2003
Weissman on Human Rights Deborah Weissman (University of North Carolina at Chapel Hill - School of Law) has posted The Human Rights Dilemma: Rethinking the Humanitarian Project (Columbia Human Rights Law Review, Forthcoming) on SSRN. Here is the abstract:
Dogan on Code & the Common Law Stacey Dogan (Northeastern University School of Law) has posted Code Versus the Common Law (Journal of Telecommunications and High Technology Law, Vol. 2, Fall 2003) on SSRN. Here is the abstract:
Race and Judicial Selection A thoughtful post by Stuart Buck, but I am not persuaded.
Free Napster At Penn State.
New Career Opportunity: Virus Bounty Hunter The New York Times reports:
The privately offered bounty is little discussed by legal theorists, and I would guess that in general bounties are unlikely to be offered because of the combination of: (1) free rider problems among those who benefit from the result of the bounty, and (2) transaction costs in negotiating a bounty program among those who will benefit. But, of course, these problems are solved when a field is dominated by a monopolist.
30 Hour Mini Marathon Roll Call reports that the Senate Republican Leadership is going for a mild version of 24/7:
Senate Republicans said that their so-called “30-hour plan” — at least 30 straight hours of uninterrupted debate on judges — is set to begin sometime Wednesday, probably late in the afternoon, and carry on until nearly midnight Thursday. They’re even holding out the option of going into the wee hours of the morning Friday if their troops are up for it.
Why not go 24/7 until the Democrats give up? Suppose the Republicans try to break the filibuster of a judicial nomination by forcing it to go 24/7. Now imagine that it is 11 p.m. In order to muster a quorum, pretty much the whole Republican caucus has to be there. If they leave, the Democrats can suggest the lack of quorum and go home for the night. If they stay, then the Democrats are home sleeping while the Republicans grow progressively more tired and cranky. The basic point is that the filibustering party has a huge tactical advantage. Here is the analysis of Stan Bach of the Congressional Research Service (Filibusters and Cloture in the Senate):
Thanks to Rick Hasen, election-law superblogger, who has a short post on this here.
Rawls and the Law tomorrow at Fordham I will be blogging from the Rawls and the Law conference tomorrow at Fordham. Be sure and say hi if you are there!
Elizabeth Garrett on Framework Legislation at USD/UCSD At the University of San Diego & University of California at San Diego's Law, Economics and Politics Workshop, Elizabeth Garrett (University of Southern Californa) is presenting Framework Legislation. Drat! This conflicts with a class, so I must miss what promises to be a very interesting paper! Here is a taste:
Other scholarship studying the institutional design of Congress has discussed framework legislation, typically in one of two contexts. First, frameworks have been assessed in analyses of the larger phenomenon of modern congressional change and reform. It identifies and explains various procedural innovations adopted by the post-reform Congresses, changes that began in the 1970s with the Legislative Reorganization Act of 1970 and continued through the reforms implemented by the 104th Congress and its Contract with America. This scholarship describes and evaluates the rise of “unorthodox lawmaking,” a term used by Barbara Sinclair to differentiate the complicated reality of modern lawmaking from the textbook process. Unorthodox lawmaking and post-reform innovation includes the adoption of framework legislation, but the procedural changes discussed in this work are broader and thus any analysis of framework laws is incidental.
Framework laws are discussed in a second scholarly context that has a narrower focus than the assessment of sweeping procedural trends in modern Congresses. Some scholars have analyzed one particular example of framework legislation, usually the congressional budget process. Although such focused studies may lead to conclusions about framework legislation in general, as well as about other congressional procedures, the scholarship tends to be restricted to understanding and critiquing the congressional budget process, or much less frequently, another particular framework. Moreover, to the extent that general conclusions can be drawn, they are often left to the reader and not made explicitly. This approach is consistent with the objective of the scholarship – to understand the development or operation of a particular framework.
Lemley on IP, Ex Post & Ex Ante, at Stanford At Stanford's Olin series, Mark Lemley (School of Law, University of California, Berkeley) presents Ex Ante Versus Ex Post Justifications for Intellectual Property. Here is a taste:
The demand-reducing effects argument may be true, though I’m skeptical that it is a widespread enough phenomenon to serve as a justification for copyright or the right of publicity. First, it would seem to apply only to the subset of works that are extremely well known – that have become cultural icons around which people have expectations. Thus, it is better as a justification for the right of publicity than for copyright, where Landes & Posner locate it. Second, there is substantial social value to allowing people to criticize and subvert cultural icons.66 At a minimum, that social value needs to be weighed against any demand-reducing effect. Third, the problem seems self- limiting. If customers want the original Gone With the Wind, not the rather more sordid story of The Wind Done Gone, there won’t be a large market for the latter, and we shouldn’t expect them to proliferate sufficiently to drive out demand for the former. If on the other hand they do proliferate, presumably we should question our intuition that customers want the real thing and not the retelling. In short, reduc ing the value customers place on the original Gone With the Wind is likely to be a problem only where there is a substantial increase in social value among the large group of people who demand the retelling from the slave’s perspective. Finally, even at its strongest the Landes/Posner argument justifies only controls on unauthorized derivative works, not controls on reproduction of copyrighted works that have entered the public domain. It therefore cannot justify indefinite copyright terms.
Van Parijs on European Language at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Philippe Van Parijs (Universite Catholique de Louvain, Belgium) presents Europe's Three Language Problems. This paper explores the issues of justice raised by what seems to be the inevitability of English becoming the language of Europe. Here is a taste:
Cruz on the Marriage Amendment at Loyola Marymount At Loyola Marymount's Loyola Law School, David B. Cruz (Professor of Law, University of Southern California Law School) presents The Federal Marriage Amendment.
Selmi on Disparate Impact Theory at BU At Boston University, Mike Selmi (George Washington University) presents Was the Disparate Impact Theory a Mistake?
Murphy at Penn At the University of Pennsylvania's law and philosophy program, Liam Murphy (New York University) is speaking.
Kalman on the Dark Ages of Yale at UCLA At UCLA's legal history series, Laura Kalman (U.C. Santa Barbera) presents The Dark Ages: Yale Law School and "The Sixties.
Orbach on the Ownership of Creative Works for Hire at Michigan At the University of Michigan's Law & Economics series, Barak Orbach (Humphrey Fellow in Law & Economics, Michigan) presents The Law and Economics of Hired Creativity: Who Should Own the Rights .
Smith on Mind and Meaning at Berkeley At U.C. Berkeley, Philosophy, Barry Smith (Birkbeck School of Philosophy) presents The Interiority of Mind and the Publicity of Meaning.
Cullity on Public Goods and Fairness at ANU At RSSS (Australian National University), Garrett Cullity (University of Adelaide) presents Public Goods and Fairness.
Taha on Media Con at FSU At Florida State, Ahmed Taha (Wake Forest) presents Is Fox in the Henhouse? Empirical Evidence on Media Conglomerates and Bias in Movie Reviews.
Lippitt on Kierkegaard & MacIntyre at Herfordshire John Lippitt (Hertfordshire) presents After Kierkegaard After MacIntyre: Several Questions for Narrative Ethics in London at the University of Hertfordshire Centre for Normativity and Narrative.
Wednesday, November 05, 2003
Spier on Manufacturer Liability at USD/UCSD
Update: Spier's Talk I attended Spier's talk this afternoon afternoon at UCSD. This paper, which was coauthored with Bruce Hay (Harvard Law), focuses on the question whether manufacturers should be liable for harms to third parties when the consumers of the product are judgment proof. For example, should a gun manufacturer be liable to third parties for injuries caused by guns, if the consumer is judgment proof? The idea is that the manufacturer would be liable for the shortfall--the damages that could not be paid by the consumer. Spier calls this "residual manufacturer liability."
A Question About Causation My question for Spier concerned causation: what concept of causation is involved here? If the notion of cause is "cause in fact," then there will be too much liability since every injury to every person is caused (in fact) by innumerable products. On the other hand, if we use the legal idea of "proximate cause," then Spier's question is not well defined, because proximate cause already has built into substantive rules of liability that would exclude manufacturer liability in many of the cases Speier discusses, e.g. gun manufacturers may well not be the proximate cause of an injury intentionally caused by the use of a gun.
An Example Here is an example of the causation problem. Some consumer C shoots a victim P with a gun manufactured by G. But G is not the only but-for cause of the harm to P. The manufacturer A of the automobile that C used to drive to P's location to shoot P is a but-for cause of P's injury, as in the manufacturer T of the tires, and G of the gasoline, etc. Given a strict liability regime, how can we differentiate between G, A, T, and G? In fact, if we trace the causal chain back far enough, it will turn out that every product is the but-for cause of every injury.
Spier's Answer Spier had a nifty slide for the causation question based on the McVeigh case:
Jo Wolff is the Anderson Foundation Visitor at Texas Starting today at the University of Texas Law and Philosophy Program, Brian Leiter is hosting Jonathan Wolff (Philosophy, University College London) for three days. Wolff will be the Anderson Foundation Visitor, giving papers and seminars on some of his current work on fairness and equality, as well as participating in a session on his recent book Why Read Marx Today? (OUP, 2002). This should be excellent!
Papastephanou on Rawls at the Institute for Education At London's Institute for Education, Marianna Papastephanou (University of Cyprus, Nicosia) presents Rawls's Justice as Fairness, Citizenship and Education.
Sebba on International Crimes at Oxford At Oxford's Centre for Criminological Research Seminar Series, Leslie Sebba presents The Response to International Crimes: Punishment, Compensation or Restorative Justice?.
Dana on Federal Preservation Regulation at Northwestern At Northwestern's Law and Economics Colloquium, David Dana (Northwestern University School of Law) presents Existence Value and Federal Preservation Regulation. Here is a taste:
Is the filibuster unconsitutional? Judicial Watch so claims in a lawsuit that is undoubtedly doomed to failure. Here is a brief excerpt from a report in The Hill:
Nard on Biopiracy Craig Nard (Case Western Reserve University - School of Law) has posted In Defense of Geographic Disparity (forthcoming Minnesota Law Review, Vol. 88, p. 221, 2003) on SSRN. Here is the abstract:
Harel on Theories of Rights Alon Harel (Hebrew University of Jerusalem - Felt Center for Legal Studies) has posted Theories of Rights on SSRN. Here is the abstract:
Tuesday, November 04, 2003
Northwestern's Woes The current plight of Northwestern University's School of Law is analyzed in a detailed post by Brian Leiter.
Bainbridge versus Froomkin And even more on Janice Brown. Froomkin versus Bainbridge. Not the thrilla in Manila, but the match of fear in the sphere! Blogo--that is.
And Kaimi Wenger weighs in here.
Bookworms Multiply The Legal Theory Bookworm begat The Libertarian Bookworm. And in addition to the bookworm, there were three other regular features over the weekend: the Legal Theory Calendar, Download of the Week, and Legal Theory Lexicon (on utilitarianism).
Newman on Lochner Nathan Newman (the only blogger as intelligent as Brian Leiter) argues that Lochner would not have been endorsed by the framers of the Constitution of 1789, based on Blackstone's approval of flour mill monopolies:
Update: Not to mention that this criticism of Newman is based on an unsophisticated view of causation.
Harold Koh is the New Dean at Yale Law School More here.
Completely Off Topic Department: The Sex Kitten Effect My ability to restrain myself has been completely overwhelmed by this post by Volokh. For a detailed analysis with relevant citations to the literature, Signal + Noise has the goods.
Rappaport on the Politics of the Janice Brown Nomination Over at The Right Coast, Michael Rappaport has a keen analysis of the politics of the Brown nomination. Here is a taste:
Supreme Court Clerks My thanks to reader Stephen Dillard for the pointer to this article on Law.com. Here is a taste:
Interview with David Bernstein Conspirator and George Mason lawprof David Bernstein is interviewed here.
Political Compass Update Some obsessive-compulsive disorder resulted in my compiling a list of political-compass results for dozens of bloggers here. Now Tim Lambert has organized the results into a chart, and you can add yourself via an interactive form. Surf here to join the fun. For analysis, see this post by the Plainsman.
Lemley and Moore on Continuation Patents Mark Lemley and Kimberly Moore (University of California, Berkeley - School of Law (Boalt Hall) and George Mason University School of Law) have posted Ending Abuse of Patent Continuations on SSRN. Here is the abstract:
Bernstein Does the Federalists at Loyola At Loyola Marymount University's Loyola Law School, David Bernstein addresses the Federalist Society.
Vega on the Exclusive/Inclusive Debate at Oxford At Oxford's Jurisprudence Discussion Group, Juan Vega speaks On Positivism's Exclusive/Inclusive Divide.
Zuckert on Deadication (?) at Texas At the University of Texas's Constitutional Studies Luncheon Colloquium, Michael Zuckert (Notre Dame) presents De(a)dication: Lincoln, Gettysburg, and the Founders. Does this have something to to with Phil Lesh?
Cole on Takings at Florida State At Florida State, Daniel Cole (Indiana-Indianapolis) presents Regulatory Takings as Conflicts Between Private and Public Property Regimes.
Carrington on the Civil Jury and Democracy Paul Carrington (Duke University School of Law) has uploaded The Civil Jury and American Democracy (forthcoming Duke Journal of Comparative & International Law, Vol. 13, No. 3, p. 79, Summer 2003) to SSRN. Here is the abstract:
Young at Princeton At Princeton's Political Philosophy Colloquium, Iris Marion Young (University of Chicago) is presenting, but I have no title.
Sykes on the WTO at Chicago At the University of Chicago's Olin series, Alan O. Sykes (Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School) presents The Economics of WTO Rules on Subsidies and Countervailing Measures.
Simon on Pragmatism and Liberal Legalism William Simon (Stanford Law School) has posted Solving Problems v. Claiming Rights: The Pragmatist Challenge to Legal Liberalism on SSRN. Here is the abstract:
Perlman on a Unified Theory of Professional Regulation Andrew Perlman (Suffolk University - School of Law) has posted Toward a Unified Theory of Professional Regulation (forthcoming Florida Law Review, Vol. 55, p. 97, 2003) on SSRN. Here is the abstract:
Bainbridge on Catholic Social Thought and the Corporation Stephen Bainbridge (University of California, Los Angeles - School of Law) has posted Catholic Social Thought and the Corporation on SSRN. Here is a taste:
Carlson on Hegelian Essence David Carlson (Cardozo Law School) has posted Essence and Reflection According to Hegel on SSRN. Here is the abstract:
Testa on Contractualism Georgia Testa (University College London) has posted Contractualism and the Significance of Numbers. Here is a taste:
Setiya on Explaining Action Kieran Setiya (Pittsburgh, Philosophy) has posted Explaining Action (to appear in the Philosophical Review). Here is a taste:
Monday, November 03, 2003
Secret Court Proceedings Isn't it obvious that they should be reserved for only the most compelling of national security concerns? Read Froomkin here!
Green on Copyrighting Facts Michael Green (George Mason University - School of Law) has posted Copyrighting Facts (forthcoming Indiana Law Journal, Vol. 78, pp. 919-964, 2003) on SSRN. Here is the abstract:
Witte on Nonmarital Children John Witte (Emory University - School of Law) has posted Ishmael's Bane: The Sin and Crime of Illegitimacy Reconsidered (forthcoming Punishment and Society: The International Journal of Penology, Vol. 5, No. 3, 2003) on SSRN. Here is the abstract:
Janice Brown and Lochner Eric Muller and David Bernstein both have very thoughtful posts. Also, check out Will Baude. And some of my thoughts were posted here.
Hasen on Ely and Election Law You will want to read Rick Hasen's post on John Hart Ely!
I will be speaking today at ILTF on Legal and Technological Change At the International Law and Technology Forum in Dallas, I will be giving a talk entitled Is Technology Changing the Law or is the Law Changing Technology?
Sinnott-Armstrong at Oxford Today at Oxford's Moral Philosophy Seminar, Walter Sinnott-Armstrong (Dartmouth) presents Moderate Pyrrhonian moral scepticism.
Cyrenne on Political Liberalism and Universal Values at Chicago At the University of Chicago's Political Theory Workshop, Chad Cyrenne (University of Chicago) presents Should Political Liberals Uphold Universal Values?, with discussion by Victor Muñiz-Fraticelli. Here is a taste:
Vorenberg at Northwestern on the Era of the Oath At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Michael Vorenberg (Brown University, History) presents The Era of the Oath Reconsidered: Race, Religion, and Citizenship in the Civil War Era. Here is a taste:
Baroness Warnock at UCL on Assisted Reporduction At University College London, Baroness Mary Warnock (House of Lords) presents Problems in Assisted Reproduction.
Morris at George Mason on Coercive State Power At George Mason's Workshop in Philosophy, Politics, and Economics, Christopher Morris (Philosophy, University of Marlyand) presents Are States Essentially Coercive? Here is a taste:
D'Agostino on Freelancers at Oxford At the Oxford Intellectual Property Research Centre, Giuseppina D’Agostino presents Should Freelancers be allowed to keep their Copyrights in the Digital Era?.
Cooper at Stanford's CIS
Lieberman at UCLA Law At UCLA, Robert Lieberman (Columbia Univ., Political Science Dept.) addresses the law faculty.
Eden responds to Leiter on the Socratic Method John Eden responds to Brian Leiter's recent remarks on the Socratic method, here on the Legal Theory Annex.
Sunday, November 02, 2003
Legal Theory Calendar
At the University of Chicago's Political Theory Workshop, Chad Cyrenne (University of Chicago) presents Should Political Liberals Uphold Universal Values?, with discussion by Victor Muñiz-Fraticelli.
At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Michael Vorenberg (Brown University, History) presents The Era of the Oath Reconsidered: Race, Religion, and Citizenship in the Civil War Era.
At George Mason's Workshop in Philosophy, Politics, and Economics, Christopher Morris (Philosophy, University of Marlyand) presents Are States Essentially Coercive?
At Oxford's Moral Philosophy Seminar, Walter Sinnott-Armstrong (Dartmouth) presents Moderate Pyrrhonian moral scepticism.
At University College London, Baroness Mary Warnock (House of Lords) presents Problems in Assisted Reproduction.
At Stanford's Center for Internet and Society Mark Cooper (Director of Research at the Consumer Federation of America) talks about Media Ownership and Democracy in the Digital Information Age.
At UCLA, Robert Lieberman (Columbia Univ., Political Science Dept.) addresses the law faculty.
At the Oxford Intellectual Property Research Centre, Giuseppina D’Agostino presents Should Freelancers be allowed to keep their Copyrights in the Digital Era?.
At Loyola Marymount University's Loyola Law School, David Bernstein addresses the Federalist Society.
At the University of Chicago's Olin series, Alan O. Sykes (Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School) presents The Economics of WTO Rules on Subsidies and Countervailing Measures.
At the University of Texas's Constitutional Studies Luncheon Colloquium, Michael Zuckert (Notre Dame) presents De(a)dication: Lincoln, Gettysburg, and the Founders.
At Princeton's Political Philosophy Colloquium, Iris Marion Young (University of Chicago) is presenting, but I have not title.
At Florida State, Daniel Cole (Indiana-Indianapolis) presents Regulatory Takings as Conflicts Between Private and Public Property Regimes.
At George Mason, Jide Nzelibe is presenting today.
At the University of San Diego & University of California at San Diego's Law, Economics and Politics Workshop, Kathy Spier (Northwestern) presents Manufacturer Liability for Harms Caused by Consumers to Others.
At London's Institute for Education, Marianna Papastephanou (University of Cyprus, Nicosia) presents Rawls's Justice as Fairness, Citizenship and Education.
At Oxford's Centre for Criminological Research Seminar Series, Leslie Sebba presents The Response to International Crimes: Punishment, Compensation or Restorative Justice?.
At Northwestern's Law and Economics Colloquium, David Dana (Northwestern University School of Law) presents Existence Value and Federal Preservation Regulation.
At NYU's Colloquium in Legal, Political and Social Philosophy, Philippe Van Parijs (Universite Catholique de Louvain, Belgium) presents Europe's Three Language Problems.
At Loyola Marymount's Loyola Law School, David B. Cruz (Professor of Law, University of Southern California Law School) presents The Federal Marriage Amendment.
At Boston University, Mike Selmi (George Washington University) presents Was the Disparate Impact Theory a Mistake?
At the University of Pennsylvania's law and philosophy program, Liam Murphy (New York University) is speaking.
At Stanford's Olin series, Mark Lemley (School of Law, University of California, Berkeley) presents Ex Ante Versus Ex Post Justifications for Intellectual Property.
At UCLA's legal history series, Laura Kalman (U.C. Santa Barbera) presents The Dark Ages: Yale Law School and "The Sixties.
At the University of Michigan's Law & Economics series, Barak Orbach (Humphrey Fellow in Law & Economics, Michigan) presents The Law and Economics of Hired Creativity: Who Should Own the Rights .
At U.C. Berkeley, Philosophy, Barry Smith (Birkbeck School of Philosophy) presents The Interiority of Mind and the Publicity of Meaning.
At RSSS (Australian National University), Garrett Cullity (University of Adelaide) presents Public Goods and Fairness.
At Florida State, Ahmed Taha (Wake Forest) presents Is Fox in the Henhouse? Empirical Evidence on Media Conglomerates and Bias in Movie Reviews.
John Lippitt (Hertfordshire) presents After Kierkegaard After MacIntyre: Several Questions for Narrative Ethics in London at the University of Hertfordshire Centre for Normativity and Narrative.
At Ohio State, a symposium on Lawrence v. Texas with Cass Sunstein, Catharine A. MacKinnon, and others.
At Oxford, Anne-Marie Slaughter (Princeton) presents Alec Roche Annual Lecture in Public International Law.
At Tulane's Center for Ethics and Public Affairs, Ulrike Heuer (University of Pennsylvania) presents Buck-Passing. On the Relation of Values and Reasons for Actions.
At Oxford's Jowett Society, Antony Duff (Stirling) is lecturing, but I lack a title.
And also at Oxford's Human Rights Discussion Group, Ben Juratowitch presents The Prohibition on Retroactive Criminal Liability in International Human rights Law.
At SUNY Buffalo, Chuck Ewing presents Ethical Dilemmas Faced by Psychologists Working for the Government in Intelligence and Counter-Terrorism Work.
At Australian National University, Christina Murray (University of Cape Town) presents South Africa's Troubled Royalty: Traditional leaders after democracy, the Annual Geoffrey Sawer Lecture.
At Yale's Philosophy Department, there is a conference entitled Themes in Philosophy of Language, participants include: David Kaplan, Robert Stalnaker, Timothy Williamson, Anne Bezuidenhout, Jennifer Hornsby, Sean Kelly, John Mcfarlane, David Sosa, Katalin Balog, Keith Derose, Michael Nelson, Paul Pietroski, Ted Sider.
At the Royal Institute of Philosophy in London, Mary Midgley presents Souls, Minds, Bodies and Planets.
At the Society for Applied Philosophy in London, Steven Wilkinson (Keele) & Carol Jones (University of Wales, Cardiff) present Commodification of the Body: Ethical Issues.
Legal Theory Lexicon: Utilitarianism
What is “utilitarianism”? Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized and irrational body of law, characterized by an irrational worship of historical pedigree and an immoral disregard of the consequences of legal rules. Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility.
Consequentialism Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialist.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result.
Disambiguating Utilitarianism Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:
Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still be highly rewarding to the climber.
Preference Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well.
Scope of Decision So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:
Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10.
And since 10 > 5, action A has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the moral evaluation of action A.
The Self-Defeating Objection Another objection is that utilitarianism may be self-defeating. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea.
The Impossibility of Interpersonal Utility Comparisons This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists, and one solution is simply to limit the conclusions of economics to cases that involve making everyone better off—hence obviating the need for interpersonal comparisons.
The Demandingness Objections The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
--Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision.
--Normative law and economics usually assumes that utilities are to be summed—although this issue is rarely addressed in any detail.
--Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized.
Legal Theory Blog Today I'm catching a plane for Dallas early this morning, so the regular Sunday features (the Calendar & Lexicon) will appear later than usual today.
Saturday, November 01, 2003
"What Is Jurisprudence?" and Leiter's Top Ten Long before I started Legal Theory Blog, I posted a list of jurisprudence books on Amazon.com. My primary motive for posting the list was that a number of similar lists had been posted by various law students (for example, here and here) and I thought that a philosophically curious law student might want a different perspective. I called the list "Top Ten Contemporary Jurisprudence," without really explaining what that meant, but I certainly had no intention of communicating the message that the books on the list were the ten most significant contributions to law and philosophy scholarship of the contemporary period. Rather, the list was constructed to expose law students to a reasonably broad range of theoretical ideas about the nature of law. Here is my list:
Brian Leiter, who publishes the Philosophical Gourmet and an influential ranking of law school faculites, disagrees with my list, and proposes the following list of his own:
But I would like to comment on an objection that Brian made to my list:
So what does Brian Leiter mean by jurisprudence. Courtesy of Will Baude of Crescat Sententia, here is the Leiter defintion:
Is this all a matter of definition or is there something substantive on the table? I think that the defintional dispute reflects a substantive disagreement. I have no quarrel with the philosophy of law, narrowly concieved. I relish the debates between inclusive and exclusive legal positivists. They are intrinsically interesting and great fun. But it would be shame if "jurisprudence"--understood as the practice of theoretical reflection in the legal academy--were to take these topics as an exclusive or central focus. To bring us back around to the lists, my point is simply this. When a theoretically inclined law student seeks advice about what to read, the answer should not be, "Focus exclusively on philosophical debates about the nature of law." Rather, the better answer is, "Read widely in legal theory from a variety of normative and philosphical perspectives. Learn about constitutional theory, tort theory, contract theory. Read some CLS, some libertarian thinkers, some normative law and economics."
Legal theory is at its best when it is normative and entangled with substantive questions of policy and doctrine.
Update: Leiter responds at the end of his original post.
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Gerald Postema's magnificient book, Bentham and the Common Law Tradition. I hope intellectual historians will excuse me for the anachronism, but I have always thought of Bentham as the original angry law student. He was unhappy with Blackstone's legal formalism, that he spent the rest of life developing one of the most power intellectual programs in the history of legal thought--legal instrumentalism, guided by a utilitarian moral and political philosophy. Bentham's ideas have triumphed again and again, as his program influenced codification in the nineteenth century, legal realism in the twentieth century, and the normative law and economics movement today. Postema's book is the single best philosophical work on Bentham's ideas in the context of law, and it tells the story of Bentham's relentless criticism of the common law--that messy and unscientific body of precedents that seems so unsuited to the role of scientific pursuit of the greatest good for the greatest number. You may have some trouble locating a copy--Oxford has foolishly allowed this important book to go out of print. It is worth the hunt!
Download of the Week This week's download of the week is The Copyright Divide (forthcoming Cardozo Law Review, Vol. 25, 2003) by Peter Yu (Michigan State University-DCL College of Law). Yu's paper addesses one of the most controversial topics in copyright policy--the RIAA's recent efforts to enforce the copyright laws against individuals, engaged in noncommercial P2P filesharing. Here is the abstract of Yu's very interesting paper:
Two Dimensional Ideology Grid: And A Large But Now Fixed Number of Data Points Added Thanks to everyone who sent in their scores. I'm now declaring the list officially closed We now have thirty-five data points:
Another Rice Grad
Johnny Bardine (En Banc)
Marc Brazeau (Blogonaut)
Will Baude (Crescat Sententia)
Chris Bertram (Crooked Timber>
Stuart Buck (The Buck Stops Here)
Sara Butler (Crescat Sententia)
Steve Dillard fka "Feddie" (Southern Appeal)
Michael Drake (Strange Doctrines)
Chris Geidner (En Banc)
Greg Goelzhauser (En Banc)
David Gross (The Picket Line)
Alexander Ignatiev (Vast Right Wing Conspiracy)
Brian Leiter (The Leiter Reports)
Lonewacko Ernest Miller (The Importance Of)
P.Z. Myers (Pharyngula)
Alfredo Perez (PoliticalTheory.Info)
C.E. Petit (Scrivener's Error
PG (En Banc)
Michael Rappaport (The Right Coast)
Anthony Rickey (Three Years of Hell)
Timothy Sandefur (Freespace)
Robert Garcia Tagorda (Priorities & Frivolities)
Unlearned Hand (En Banc)
Hasen on Hatch on Judicial Selection The Pickering filibuster is on, and Rick comments on the following report from the Los Angeles Times: