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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Saturday, January 31, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review by Keith E. Whittington (Princeton). Whttington's book is one of the very best about originalism in constitutional theory. Here is a blurb:
Download of the Week This week's Download of the Week is Rescuing Justice from Constructivism by G. A. Cohen (Oxford). Here is a taste of this sophisticated paper that poses a fundamental challenge for constructivists like Tim Scanlon & the late Jack Rawls. Here is a taste:
Friday, January 30, 2004
Conference Announcement: Workshop on Vagueness
Call for Papers: Human Rights, Democracy, and Religion
Conference Announcement: Rocky Mountain Virtue Ethics Conference
Complex Egalitarianism Check out Complex Egalitarianism by Erik Olin Wright and Harry Brighouse. Here is a taste:
Gross on Indian Citizenship & Identity at Texas At the University of Texas, Ariela Gross, USC, presents Administering Citizenship, Identity and Land in Indian Territory, 1865-1907. Ashiagbor on Economic and Social Rights in the EU Charter at Oxford At Oxford's faculty of laws, Diamond Ashiagbor presents Economic and social rights in the EU charter (on human rights, social rights and social policy discourse). Saul on Pornography & Speech Acts at Oxford At Oxford's Jowett Society, Jennifer Saul (Sheffield) presents Pornography, Speech Acts, and Context. Start on Contractarian Approaches to Disability at North Carolina At the University of North Carolina's philosophy department, Cynthia Stark (Utah) presents How To Include the Severely Disabled in a Contractarian Theory of Justice. Anti-Theory in Literature Check out Theory in chaos by David Kirby over at CSMonitor.com:
Goodman on Telecosm Spectrum Rights Ellen P. Goodman (Rutgers University - Law School) has posted Spectrum Rights in the Telecosm to Come (San Diego Law Review, Vol. 41, 2004) on SSRN. Here is the abstract:
Reidenberg on States and Internet Enforcement Joel Reidenberg (Fordham University School of Law) has posted States and Internet Enforcement (University of Ottawa Law & Technology Journal, Vol. 1, 2004) on SSRN. Here is the abstract:
Mossoff on Epstein on "Is Copyright Property?" Adam Mossoff (Michigan State University-DCL College of Law) has posted Is Copyright Property? A Comment on Richard Epstein's Liberty vs. Property (from Adam Mossoff, PROMOTING MARKETS IN CREATIVITY: COPYRIGHT IN THE INTERNET AGE, James V. DeLong, ed., 2004) on SSRN. Here is the abstract:
Speta on FCC Authority Over the Internet James B. Speta (Northwestern University - School of Law) has posted FCC Authority to Regulate the Internet: Creating It and Limiting It (Loyola University Chicago Law Journal, Vol. 35, No. 15, 2004) on SSRN. Here is the abstract:
Thursday, January 29, 2004
Fisher on Alterntive Compensation for the Entertainment Industry The Thursday is Workshop Day post below already mentions that Terry Fisher (Harvard Law School) is delivering An Alternative Compensation System for the Entertainment Industry at Stanford's Olin series today. I've now had a chance to look at Fisher's paper on this very timely and important topic. Here is a taste:
Rational Agency Without Noumenal Selves As I posted below, Geoffrey Sayre-McCord (Professor and Chair, Department of Philosophy at University of North Carolina at Chapel Hill) is presenting Rational Agency and Normative Concepts at Penn's law and philosophy series. I've had a chance to look at this marvelous paper. Here is a very brief snippet from the introduction:
Thursday is Workshop Day Here is the roundup of workshops from hither and yon:
Also at Penn, Martha Nussbaum (Ernst Freund Distinguished Service Professor of Law and Economics, University of Chicago) is giving the JUDITH R. BERKOWITZ ENDOWED LECTURESHIP IN WOMEN'S STUDIES. Her title is Gender Justice, Human Rights, and Human Capabilities. At Boston University law, Susan Koniak (BU) presents How Like a Winter? The Plight of Absent Class Members Denied Adequate Representation. At Florida State, Jennifer Mnookin, University of Virginia School of Law, presents Atomism, Holism and the Law of Evidence. At Georgetown's Colloquium on Intellectual Property & Technology Law, Rosemary J. Coombe, York University, presents The Globalization of Intellectual Property: Informational Capital and Its Cultures. At Stanford's Olin series, Terry Fisher (Harvard Law School) presents An Alternative Compensation System for the Entertainment Industry. At the University of Michigan's law and economics series, Omri Ben-Shahar, Michigan, presents "Agreeing to Disagree": Filling Gaps in Deliberately Incomplete. The title on the website is "incomplete," but not deliberately so. At George Mason, Craig Lerner, GMU School of Law, presents “Accomodations” for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites? At Oxford's Public International Law Discussion Group, Robert Volterra presents The Commission on the Limits of the Continental Shelf: Technical Science, Star Chamber, or Quasi-Judicial Tribunal? At the Australian National University's RSSS, Norva Lo (La Trobe University) presents Humpty Dumpty Analysis of 'Valuing', Empty Analysis of 'Valuable'. At UCLA's legal history series, Sally Gordon, University of Pennsylvania, presents Parochial School Funding: Catholics, Protestants, and Legal Activism at Mid-Century. Will the Tenure Devolution Hit the Legal Academy? While the legal academia sleeps, tenure is rapidly disappearing. Consider the following from The Morphing of the American Academic Profession by Martin Finkelstein:
Nelkin on Moral Luck Dana Nelkin (UC San Diego & affiliated with USD's Institute on Law and Philosophy) has the Stanford Encyclopaedia of Philosophy entry on Moral Luck posted. Here is a taste:
Lipton on Information Policy Jacqueline D. Lipton (Case Western Reserve University School of Law) has posted A Framework for Information Law and Policy (Oregon Law Review, Vol. 82, No. 3, 2004) on SSRN. Here is the abstract:
Ginsburg & McAdams on International Dispute Resolution Tom Ginsburg and Richard H. McAdams (University of Illinois College of Law and Yale Law School (Visiting)) have posted Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution (William & Mary Law Review, Fothcoming) on SSRN. Here is the abstract:
Wednesday, January 28, 2004
KaZaA Strikes Back Check out the CNET story here:
Hasen on Slate Election law superblogger Rick Hasen has a new piece on Slate. Here is a taste:
Confirmations Wars Department: More on the Memos The Hill has a detailed report on the inner workings of the Senate Judiciary Committee in relation to the access by Republican staffers to Democratic memos on judicial selection. The story focuses on a shift in control of the committee from the leadership to Senator Hatch's personal staff. Here is a taste:
Hasen's Guide to Bush v. Gore Rick Hasen of Election Law Blog has posted A Critical Guide to Bush v. Gore Scholarship on SSRN. Here is the abstract:
Kamm on Just War Theory and Terrorism at UCL At University College's Colloquium in Legal and Social Philosophy, Frances Kamm presents Failures of Just War Theory and Terrorism. Here is a bit from the introduction:
Parry on Torture at Villanova At Villanova law today, John Parry (University of Pittsburgh School of Law) presents Chavez v. Martinez and the Jurisprudence of Torture. Levinson on Non-Evidence at Loyola Marymount At Loyola Marymount, Laurie Levenson (LMU) presents Why Looks Matter: The Impact of Non-Evidence on the Courtroom. Sussman on Disgrace at Yale Today at Yale's philosophy series, David Sussman presents Kant and the Politics of Disgrace.. Tehranian on Natural Law and Fair Use John Tehranian (University of Utah) has posted Et Tu, Fair Use? The Triumph of Natural Law Copyright on SSRN. Here is the abstract:
Liebowitz and Margolis on the Economists' Brief in Eldred Stan J. Liebowitz and Stephen E. Margolis (University of Texas at Dallas - School of Management and North Carolina State University) have posted Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects on SSRN. Here is the abstract:
Two by Weisbach David A. Weisbach (University of Chicago Law School) has posted two papers on SSRN:
Iontcheva on the International Criminal Court Jenia Iontcheva (University of Chicago - Law School) has posted Nationalizing International Criminal Law: The Internatinoal Criminal Court as a Roving Mixed Court on SSRN. Here is the abstract:
Tuesday, January 27, 2004
Bainbridge on Corporate Responsibility for Past Wrongs Stephen Bainbridge has a provocative & sensible post on this interesting topic. Here's a taste:
Cohen on Justice and Constructivism at Oxford At Oxford's Jurisprudence Discussion Group, G. A. Cohen (Oxford) presents Rescuing Justice from Constructivism. Here is a taste:
(Note that, for all that I am here purporting to show, the original position might be the right procedure for generating principles of regulation. But I do not, in fact, believe that, for uneccentric reasons that have nothing to do with the case being mounted here.) Lichtman on Irreperable Harms and Benefits at Chicago At the University of Chicago, The Coase Lecture is presented by Douglas Lichtman, Professor of Law, University of Chicago Law School, who will deliver Irreparable Harms and Irreparable Benefits. Update: Amanda Butler has a report on the event here. Szigeti on Moral Sentiments & Dilemmas at Oxford Today at Oxford's Ockham Society, Andreas Szigeti presents Moral Sentiments and Moral Dilemmas. Fennell on Contracting Communities I was especially interested in this paper, which approaches its question from a very interesting perspective. Lee Anne Fennell (University of Texas School of Law) has posted Contracting Communities (University of Illinois Law Review, 2004) on SSRN. Here is the abstract:
Two by Goldman Eric Goldman (Marquette University - Law School) has posted two papers on SSRN:
Conference Announcement: Religiously Affiliated Law Schools
Friday, March 25, 2004 9:00?10:15 a.m. Session 1
Guzman on the Design of International Agreements Andrew T. Guzman (University of California, Berkeley - School of Law (Boalt Hall)) has posted The Design of International Agreements on SSRN. Here is the abstract:
Monday, January 26, 2004
Weekend Wrap Up On Saturday, the Download of the Week was Inheriting Responsibilties by David Miller. Also on Saturday, The Legal Theory Bookworm recommended Michael Moore's Placing Blame, a General Theory of the Criminal Law. Sunday's regular features were delayed, but you can now find the Legal Theory Lexicon entry on Causation and the Legal Theory Calendar. Mirowski on the Philosophical Hammer at George Mason At George Mason's Philosophy, Politics and Economics series, Phil Mirowski (Department of Economics, University of Notre Dame) presents Philosophizing with a Hammer. Silberman on International Jurisdiction and Judgments at NYU At NYU's law series, Linda Silberman discusses the ALI Project on International Jurisdiction and Judgments. Holthoefer on International Law and Order at Chicago Today at the University of Chicago's political theory workshop series, Anne Holthoefer, University of Chicago, presents A Procrustean Bed? International Law and the Shaping of International Order. Crisp on Hedonism at Oxford Today at Oxford's Moral Philosophy Seminar, Roger Crisp (Oxford) presents Hedonism Reconsidered. Strahilevitz on the Right to Destroy Lior Strahilevitz (University of Chicago Law School) has posted The Right to Destroy on SSRN. Here is the abstract:
Gibbons on a Federal Common Law of Copyright Contract Llewellyn Joseph Gibbons (University of Toledo - College of Law) has posted Stop Mucking up Copyright Law: A Proposal for a Federal Common Law of Contract is a Common Sense Solution (Rutgers Law Journal, Forthcoming) on SSRN. Here is the abstract:
Wasserman on Symbolic Counter-Speech Howard M. Wasserman (Florida International University College of Law) has posted Symbolic Counter-Speech (William & Mary Bill of Rights Journal, Vol. 12, February 2004) on SSRN. Here is the abstract:
Gross on Constitutional Emergency Provisions Oren Gross (University of Minnesota Law School) has posted Providing for the Unexpected: Constitutional Emergency Provisions (Israel Yearbook on Human Rights, Vol. 32, 2004) on SSRN. Here is the abstract:
Legal Theory Calendar
At the University of Chicago's political theory workshop series, Anne Holthoefer, University of Chicago, presents A Procrustean Bed? International Law and the Shaping of International Order. At George Mason's Philosophy, Politics and Economics series, Phil Mirowski (Department of Economics, University of Notre Dame) presents Philosophizing with a Hammer. At Oxford's Moral Philosophy Seminar, Roger Crisp (Oxford) presents Hedonism Reconsidered.
At Oxford's Jurisprudence Discussion Group, G. A. Cohen (Oxford) presents Rescuing Justice from Constructivism. At Oxford's Ockham Society, Andreas Szigeti presents Moral Sentiments and Moral Dilemmas.
At Villanova law, John Parry (University of Pittsburgh School of Law) presents Chavez v. Martinez and the Jurisprudence of Torture At Loyola Marymount, Laurie Levenson (LMU) presents Why Looks Matter: The Impact of Non-Evidence on the Courtroom. At Yale's philosophy series, David Sussman presents Kant and the Politics of Disgrace..
Also at Penn, Martha Nussbaum (Ernst Freund Distinguished Service Professor of Law and Economics, University of Chicago) is giving the JUDITH R. BERKOWITZ ENDOWED LECTURESHIP IN WOMEN'S STUDIES. Her title is Gender Justice, Human Rights, and Human Capabilities. At Boston University law, Susan Koniak (BU) presents How Like a Winter? The Plight of Absent Class Members Denied Adequate Representation. At Florida State, Jennifer Mnookin, University of Virginia School of Law, presents Atomism, Holism and the Law of Evidence. At Georgetown's Colloquium on Intellectual Property & Technology Law, Rosemary J. Coombe, York University, presents The Globalization of Intellectual Property: Informational Capital and Its Cultures. At Stanford's Olin series, Terry Fisher (Harvard Law School) presents An Alternative Compensation System for the Entertainment Industry. At the University of Michigan's law and economics series, Omri Ben-Shahar, Michigan, presents "Agreeing to Disagree": Filling Gaps in Deliberately Incomplete. The title on the website is "incomplete," but not deliberately so. At George Mason, Craig Lerner, GMU School of Law, presents “Accomodations” for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites? At Oxford's Public International Law Discussion Group, Robert Volterra presents The Commission on the Limits of the Continental Shelf: Technical Science, Star Chamber, or Quasi-Judicial Tribunal? At the Australian National University's RSSS, Norva Lo (La Trobe University) presents Humpty Dumpty Analysis of 'Valuing', Empty Analysis of 'Valuable'. At UCLA's legal history series, Sally Gordon, University of Pennsylvania, presents Parochial School Funding: Catholics, Protestants, and Legal Activism at Mid-Century.
At Oxford's faculty of laws, Diamond Ashiagbor presents Economic and social rights in the EU charter (on human rights, social rights and social policy discourse). At Oxford's Jowett Society, Jennifer Saul (Sheffield) presents Pornography, Speech Acts, and Context. At the University of North Carolina's philosophy department, Cynthia Stark (Utah) presents How To Include the Severely Disabled in a Contractarian Theory of Justice. Legal Theory Lexicon: Causation
Cause-in-Fact & Legal Cause Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks! Cause-in-Fact What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause. Necessary and Sufficient Causes The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. The Role of Counterfactuals The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim. What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation. Overdetermination Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben. Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause. The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation. Coincidence Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences. Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident. Legal Cause What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause. First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law. Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable. Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away. Probability Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post. Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y. Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events. Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:
--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1. Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation. Conclusion Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn. Sunday, January 25, 2004
Calendar & Lexicon Late Today The Legal Theory Calendar and the Legal Theory Lexicon will be posted late today. I'm returning home from the Roundtable on Causation and Probability in Death Valley. Update: When I returned home, my intenet connection was out. The Lexicon entry is now up, but the Legal Theory Calendar won't go up until later on Monday. Saturday, January 24, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Placing Blame, a General Theory of the Criminal Law (Oxford University Press ). Moore is one of the most interesting and deep thinkers in contemporary legal theory. Here is the blurb:
Download of the Week This week the Download of the Week is Inheriting Responsibilities by David Miller. Here is a taste of this nifty paper:
2) The demands made by members of the Australian Aboriginal community for compensation and for a national Day of Apology for the so-called ‘stolen generation’ of Aboriginal children taken from their families and brought up in white homes or orphanages. 3) The compensation of $122 million awarded by the US Supreme Court to the Sioux Indians for the occupation by whites in the late 19th century of the goldrich Black Hills area that had previously been reserved to the Sioux by treaty. 4) Demands that Japan should pay compensation to ‘comfort women’ taken from other East Asian countries (especially Korea) and forced into prostitution by the Japanese military, giving rise to official apologies and the creation of an Asian Women’s Fund to offer compensation to the women involved. 5) Demands that items of symbolic significance seized from their original owners should be returned to those owners or their descendants, for instance the demand that the Parthenon Marbles should be returned to Greece, or the demand by some aboriginal peoples that the bones of their ancestors now held in museums across the world should be sent back to them for reburial. 6) The many and varied demands that have been made in the US as forms of redress for black slavery, from land settlements for blacks, to financial compensation to the descendants of slaves, to affirmative action policies, to formal apologies for slavery on the part of Congress or the President. Friday, January 23, 2004
Probability and Causation Roundtable at Death Valley My blogging will be light and erratic over the next three days. I am attending the Roundtable on Probability and Causation, organized by the law and philosophy institutes at the University of Illinois, with support from the law and philosophy institutes of the University of Pennsylvania and the University of San Diego. A terrific set of readings has been prepared by Michael Moore and Tom Ulen. Other participants include Matt Adler (Penn), Larry Alexander (San Diego), Ron Allen (Northwestern), Lee Fennell (Texas), Claire Finkelstein (Penn), Richard Fumerton (Iowa-Philosophy), Thomas Ginsburg (Illinois), Susan Haack (Miami-Philosophy & Law), Christopher Hitchcock (Cal Tech), Heidi Hurd (Illinois), David Hyman (Maryland), Leo Katz (Penn), Richard Lembert (National Science Foundation & Michigan), Alan Schwartz (Yale), and Steve Smith (San Diego). This should be terrific! Update: I'm writing this post script on Sunday morning. This was a marvelous roundtable--with lots of fascinating discussion. Although I won't be blogging any of the conversations, I will put up two or three posts on ideas and issues that arose during the roundtable. Thank you Tom Ulen and Michael Moore! Rickey on the Senate Judiciary Memos Anthony Rickey has a thorough discussion of the simmering controversy over Republican access to Democratic memos on judicial confirmations: here, here, and here. Bracha on Copyright History at Texas At the University of Texas, Oren Bracha (UT) presents The Transformation of American Copyright Law 1789-1909. Here is an excerpt from the introduction:
Cohen at Oxford At Oxford's Jowett Society, G.A. Cohen (Oxford) is speaking. Could someone provide the title of Cohen's paper? Little on Intimate Duties at Tulane At Tulane's Center for Ethics and Public Affairs, Margaret Little (Georgetown University) presents Intimate Duties. Constitution Making in Israel and Palestine Today, at the University of Chicago, there is a conference on Constitution-Making in Israel and Palestine, sponsored by the Center for Comparative Constitutionalism. Hersch on Jury Demands and Trials Joni Hersch (Harvard University - Harvard Law School) has posted Jury Demands and Trials on SSRN. Here is the abstract:
Dauber on the Sympathetic State Michele Landis Dauber (Stanford University - School of Law) has posted The Sympathetic State on SSRN. Here is the abstract:
Bradford on a Natural Law Justification for Preventive War William C. Bradford (Indiana University Purdue University Indianapolis (IUPUI) - School of Law) has posted The Duty to Defend them: A Natural Legal Justification for the Bush Doctrine of Preventive War (Notre Dame Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:
Thursday, January 22, 2004
Gutmann Selected as President of the University of Pennsylvania Amy Gutmann, the political theorist and currently Provost at Princeton, has been named President of the University of Pennsylvania. Gutmann was at the ASPLP meeting earlier this month and she was in fine form. (Thanks to Jacob Levy for the pointer.) Confirmation Wars Department: Boston Globe on Spying The Boston Globe has an article on the simmering controversy re internal Democratic judiciary committee memos on the judicial selection process. Here is an excerpt:
And for more on the confirmation wars, see this story re the likely Demoratic reaction to the recess appointment of Pickering. And I just spent a few minutes listening in to the Senate Judicary Committee confirmation hearings today. The discussion concerned the sentencing guidelines and the Feeney Amendment--with very little of substance said. Barbara Fried on Nozick at UCLA At UCLA's Legal Theory Workshop, Barbara Fried (Stanford) presents Begging the Question with Style: Anarchy, State and Utopia at Thirty Years. Here is an early passage:
Priest on the Market for Judicial Clerks at Michigan At the University of Michigan's law and economics series, George Priest, Yale, presents Reexamining the Market for Judicial Clerks and other Assortative Matching Markets. Here is an excerpt from early in the paper:
Krawiec at Florida State on the Penalty Default Canon At Florida State, Kimberly Krawiec, University of North Carolina School of Law (short-course visiting professor at FSU), presents The Penalty Default Canon--link courtesy of Gary O'Connor of the fabulous Statutory Construction Blog. Klick on the Effects of Police on Crime at George Mason At George Mason's Levy series, Jonathan Klick of the American Enterprise Institute will present his paper Using Terror Alert Levels to Estimate the Effect of Police on Crime. Hylton at Boston University At Boston University, Keith Hylton is presenting. Can someone supply the title? Rosen on the Enron Bankruptcy Robert Rosen (University of Miami - School of Law) has posted Risk Management and Corporate Governance: The Case of Enron (Connecticut Law Review, Vol. 35, No. 1157, 2003) on SSRN. Here is the abstract:
Garrett on the California Recall Elizabeth Garrett (University of Southern California - Law School) has posted Democracy in the Wake of the California Recall (University of Pennsylvania Law Review, Vol. 152, 2004) on SSRN. Here is the abstract:
Call for Papers: State Blaine Amendments
Roe on Corporate Governance Mark J. Roe (Harvard Law School) has posted Political Determinants of Corporate Governance on SSRN. Here is the abstract:
Wednesday, January 21, 2004
Froomkin on Anononymity & Free Speech Check out Michael Froomkin's post on the Second Circuit's blow against anonmymous expression. Here is a tiny taste:
Stearns Overviews Public Choice at Villanova At Villanova Law, Max Stearns (George Mason University School of Law) presents An Overview of Public Choice Case at Northwestern At Northwestern's Constitutional Theory Colloquium, Mary Anne Case, University of Chicago Law School, is presenting "Of 'This' and 'That' in Lawrence v. Texas." Thanks to Rick Garnett for the title. Manson on Freud and Folk Psycholology at Hertfordshire At the University of Hertfordshire Centre for Normativity and Narrative, Neil Manson (Cambridge) presents Freud, Folk Psychology and Mental Order. Lawsuits and Copynorms Has the RIAA litigation offensive changed copynorms? Here are some excerpts from a CNET story:
* * * "It's important to keep in mind that file sharing is occurring less frequently than before the RIAA began its legal efforts to stem the tide of P2P (peer-to-peer) file sharing," Russ Crupnick, vice president of NPD, said in a statement. "We're just seeing the first increase in these numbers. NPD will continue to monitor whether it's a temporary seasonal blip or a trend that suggests that the industry should be more aggressive in capping the use of illegal methods to acquire digital music."
Update: The always-intelligent Ernest Miller comments here. Risse Asks A Big Question Mathias Risse (Harvard University - John F. Kennedy School of Government) has posted Do We Live in an Unjust World? on SSRN. Here is the abstract:
Chicago Judges Project Check out the website of the Chicago Judges Project. Here is an excerpt from the front page:
Confrence Announcement: The Rehnquist Court
Tuesday, January 20, 2004
Extreme Mental or Emotional Disturbance You will want to check out the discussion over at Punishment Theory, including posts by John Gardner and Antony Duff. Miller on Inherited Responsibility at Oxford At Oxford's Jurisprudence discussion group, David Miller presents Inheriting Responsibilities. Here is a taste:
2) The demands made by members of the Australian Aboriginal community for compensation and for a national Day of Apology for the so-called ‘stolen generation’ of Aboriginal children taken from their families and brought up in white homes or orphanages. 3) The compensation of $122 million awarded by the US Supreme Court to the Sioux Indians for the occupation by whites in the late 19th century of the goldrich Black Hills area that had previously been reserved to the Sioux by treaty. 4) Demands that Japan should pay compensation to ‘comfort women’ taken from other East Asian countries (especially Korea) and forced into prostitution by the Japanese military, giving rise to official apologies and the creation of an Asian Women’s Fund to offer compensation to the women involved. 5) Demands that items of symbolic significance seized from their original owners should be returned to those owners or their descendants, for instance the demand that the Parthenon Marbles should be returned to Greece, or the demand by some aboriginal peoples that the bones of their ancestors now held in museums across the world should be sent back to them for reburial. 6) The many and varied demands that have been made in the US as forms of redress for black slavery, from land settlements for blacks, to financial compensation to the descendants of slaves, to affirmative action policies, to formal apologies for slavery on the part of Congress or the President. Lookofsky on Contracts for the International Sale of Goods Joseph Lookofsky (University of Copenhagen - Faculty of Law) has posted In Dubio Pro Conventione? Some Thoughts About Opt-Outs, Computer Programs and Preemption Under the 1980 Vienna Sales Convention (CISG) (Duke Journal of Comparative & Internaional Law, Vol. 13, No. 3, Summer 2003) on SSRN. Here is the abstract:
Danner on Jackson's Lament Richard A. Danner (Duke University School of Law) has posted Justice Jackson's Lament: Historical and Comparative Perspectives on the Availability of Legislative History (Duke Journal of Comparative & International Law, Vol. 13, No. 3, Summer 2003) on SSRN. Here is the abstract:
Allen and Lively on the Burden of Persuasion in Civil Cases Ronald J. Allen and Sarah Lively (Northwestern University Law School and Northwestern University - School of Law) have posted Burdens of Persuasion in Civil Cases: Algorithms v. Explanations (Law Review of Michigan State University-Detroit College of Law, Forthcoming) on SSRN. Here is the abstract:
Conference Announcement: The Law of Democracy
Monday, January 19, 2004
Original Meaning and the Vicious Circle Today seems to be Originalism Day, with Matthew Yglesias entering the fray. Challenging original-meaning originalism, Yglesias has the following argument:
For more, see the Legal Theory Lexicon post on originalism, Randy Barnett's reply to Dominic Murphy's question, and my comment on Murphy. Weekend Wrap Up The Download of the Week was an important article by Rick Hasen on McConnell--thank goodness someone else is reading the whole opinion! Also on Saturday, the Legal Theory Bookworm recommended Restoring the Lost Constitution--originalism seems to be in the air! Sunday, the Legal Theory Calendar previewed this week's talks, workshops, and conferences. Also on Sunday, the Legal Theory Lexicon provided an introduction to--you guessed it--Originalism in constitutional theory. Price on the Logic (So-Called) of Practical Inference at Oxford At Oxford's Moral Philosophy Seminar, Anthony Price (Birkbeck) presents On the so-called logic of practical inference. Here is a taste of this interesting paper:
Grant on Ethics and Incentives at Chicago At the University of Chicago's Political Theory Workshop, Ruth Grant, Duke University presents Ethics and Incentives with discussant Jay Cost. Here is a taste:
Murphy & Barnett on Originalism Yesterday's Legal Theory Lexicon entry was on Originalism. So I was especially interested this morning by a post on the Volokh Conspiracy. Cal Tech philosopher Dominic Murphy poses the following question for Randy Barnett:
Welcome to the Blogosphere . . . to Legal Fiction, another anonymous law clerk blog. And to That's News to Me, a University of Chicago law student blog. Update: "And by coincidence, Legal Fiction has a post on . . . You guessed it again! . . . originalism. Walsh on the Foundations of Corporate Law Joseph T. Walsh (Supreme Court of Delaware) has posted The Fiduciary Foundation of Corporate Law (Journal of Corporation Law, Vol. 27, No. 3) on SSRN. Here is the abstract:
Gana on Law, Literature, and Hermeneutics Nouri Gana's article Beyond the Pale: Toward an Exemplary Relationship Between the Judge and the Literary Critic is now available on Westlaw. Here is the abstract:
Conference Announcement: Mutual Fund Litigation and Regulation
Mutual Fund Litigation and Regulation: Is the Cure Worse than the Disease? Wednesday, January 28, 2004, 9:00 a.m.–noon Wohlstetter Conference Center, Twelfth Floor, AEI
This event will explore the theoretical foundations of this scandal, the empirical evidence of harm to investors, and the wisdom of regulatory intervention. In the first panel, finance scholars will present innovative research, which attempts to quantify the effects of late trading, market timing, and other practices such as soft-dollar brokerage arrangements and mutual fund fee dispersion. To provide a context for this academic research, the second panel will feature a discussion among individuals involved in mutual fund litigation.
For additional information, please contact Kate Rick at 202.862.5848. For media inquiries, please contact Veronique Rodman at 202.862.4871 or vrodman@aei.org. Sunday, January 18, 2004
Legal Theory Lexicon: Originalism
The Originalist Revival No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. At various points in time, both sides have claimed the upper hand, but at the level of theory, the case for originalism has always been contested. Originalism is not an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least three members who seem strongly influenced by originalist constitutional theory--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas. The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. Two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court--We the People: Foundations, published in 1991. Second, Randy Barnett (along with Richard Epstein, the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. Ackerman and Barnett represent two trends in originalist thinking: (1) the political orientation of originalism has broadened from conservatives to liberals and libertarians, and (2) the theoretical structure of originalism has morphed and diversified from the early emphasis on "the original intentions of the framers." After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements that "we are all originalists, now." Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles. Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning. Original Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism. The concept of original meaning originalism in its modern incarnation can be traced to a brief mention in Robert Bork's The Tempting of America, but Bork did not develop the idea extensively. Later original-meaning originalism was picked up by Justice Scalia in his opening essay in A Matter of Interpretation. Although the distinction between original meaning and original intent can be found in a variety of early contemporary sources including an article by Robert Clinton in 1987, the systematic development of original-meaning originalism is a relatively recent phenomenon. Original meaning originalism receives its most comprehensive explication and defense in Randy E. Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty--a systematic development of the original meaning approach and critique of the original intention theory. Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted. Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s. Originalism and Precedent Whither originalism? Given the ups and downs of originalism over the past three decades, making long-term predictions seems perilous indeed. But I will make one prediction about the future of originalism. We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Already, originalists of various stripes are beginning to debate the role of precedent in an originalist constitutional jurisprudence. Given the conferences and papers that are already in the works, I think that I can confidently predict that the debate over originalism and stare decisis will be the next big thing in the roller-coaster ride of originalist constitutional theory. Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism. Legal Theory Calendar
At the University of Chicago's Political Theory Workshop, Ruth Grant, Duke University presents Ethics and Incentives with discussant Jay Cost.
At Yale philosophy, Yitzhak Melamed presents Spinoza's Anti-Humanism.
At Villanova Law, Max Stearns (George Mason University School of Law) presents An Overview of Public Choice At the University of Hertfordshire Centre for Normativity and Narrative, Neil Manson (Cambridge) presents Freud, Folk Psychology and Mental Order.
At Florida State, Kimberly Krawiec, University of North Carolina School of Law (short-course visiting professor at FSU), presents The Penalty Default Canon--link courtesy of Gary O'Connor of the fabulous Statutory Construction Blog. At the University of Michigan's law and economics series, George Priest, Yale, presents Reexamining the Market for Judicial Clerks and other Assortative Matching Markets. At George Mason's Levy series, Jonathan Klick of the American Enterprise Institute will present his paper Using Terror Alert Levels to Estimate the Effect of Police on Crime. At Boston University, Keith Hylton is presenting. Can someone supply the title?
At Oxford's Jowett Society, G.A. Cohen (Oxford) is speaking. Could someone provide the title of Cohen's paper? At Tulane's Center for Ethics and Public Affairs, Margaret Little (Georgetown University) presents Intimate Duties. At the University of Chicago, there is a conference on Constitution-Making in Israel and Palestine, sponsored by the Center for Comparative Constitutionalism. Saturday, January 17, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Restoring the Lost Constitution: The Presumption of Liberty by Randy Barnett (Boston University). Here's what some leading constitutional theorists are saying about this book:
Download of the Week This week the dowload of the week is Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission by Rick Hasen (Loyola Marymount University). Hasen's blog, Election Law Blog, is a superb source of incisive legal analysis of election law issues. His analysis of of McConnell is must reading for anyone with a deep interest in the interplay between the freedom of speech and election law. Here is the abstract:
Friday, January 16, 2004
Recess Appointment for Pickering with Updates Charles Pickering has received a recess appointment from President Bush. Here is an excerpt from the Washington Post story:
Bush installed Pickering by a recess appointment, which avoids the confirmation process. Such appointments are valid until the next Congress takes office, in this case in January 2005.
--A further question concerns the future intentions of the Bush administration. Was this a one-time use of the power. As I understand it, Miguel Estrada was also offered a recess appointment, but turned it down--presumably for career related reasons. It would seem logical then to infer that Pickering chose to accept an offer than may well have been extended to the other nominees who are being filibustered. If so, then this use of the recess appointments power is quite limited. --Nonetheless, the Pickering recess appointment raises the specter of mass use of the recess appointments power--along the lines suggested by Randy Barnett in his piece in NRO, Benching Bork. This would be a much more significant development. Update: The NPR story is here. The Alliance for Justice opposes the move, but the Committee for Justice approves. President Bush's statement is here. The Federalist Society has a paper that addresses various issues here. In the blogosphere, Roger Payne comments here. Brad DeLong argues that the Pickering move was calculated to appeal to rascist elements in the Republican base here. Howard Bashman's column on the constitutionality of recess appointments is here. And yet more from Scrivener's Error. Also, two posts (here and here) from Legal Fiction. The New York Times endorses Senator Schumer's statement that the recess appointment is a "finger in the eye for all those seeking fairness in the nomination process." People for the American way call the move "arrogant disregard for the constitutional checks and balances that ensure independent and fair courts." And here is a Congressional Research Service report on recess appointments (PDF). Noberto Bobbio Norberto Bobbio, perhaps the most famous Italian legal philosopher of the 20th century, has died at the age of 94. Here is an excerpt from the obituary in The Guardian:
Bobbio's life and work were conditioned by the vicissitudes of his country's democracy in the 20th century. The experience of fascism, the ideological divisions of the cold war, and the transformation of Italian society during the 1960s and 1970s - which he described so evocatively in his Ideological Profile Of Italy In The Twentieth Century (1969) - prompted and enriched his passionate defence of the constitutional "rules of the game" against those who denied their relevance or would overturn them for reasons of pragmatic convenience. Hasen on McConnell Superstar election-law blogger Rick Hasen has posted Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission on SSRN. Here is the abstract:
More on Originalism and Precedent Randy Barnett comments on the relationship between originalism and precedent over on the Conspiracy. Here is a taste:
Stuart Buck C.E. Petit Matthew Yglesias Pejmanesque Strange Doctrines Glenn Reynolds cka3n Karlan on Felon Disenfranchisement Pamela S. Karlan (Stanford Law School) has uploaded Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement to SSRN. Here is the abstract:
Pendo on the Difference Principle and Disability Elizabeth A. Pendo (St. Thomas University, Miami, FL - School of Law) has posted Substantially Limited Justice?: The Possibilities and Limits of a New Rawlsian Analysis of Disability-Based Discrimination (St. Johns Law Review, Vol. 77, p. 225, 2003). Here is the abstract:
Srinivas on Patents and Access to Drugs under the Doha Declaration K. Ravi Srinivas (Indiana University Bloomington - School of Law) has posted Interpreting Para 6 Deal on Patents and Access to Drugs (Economic and Political Weekly, Vol. 38, No. 38, September 2003) on SSRN. Here is the abstract:
Sitkoff on Politics & Corporations Robert H. Sitkoff (Northwestern University School of Law) has posted Politics and the Business Corporation (Regulation, Vol. 26, pp. 30-36, Winter 2003-04) on SSRN. Here is the abstract:
Conference Announcement: What U.S. Lawyers Can Learn from International Law: Concepts of Gender Equality Across Legal Cultures
Thursday, January 15, 2004
More on Unpublished Opinions I commented recently on Stephen Barnett's (U.C. Berkeley) piece No-Citation Rules Under Siege: A Battlefield Report and Analysis. For more on this issue, you should check out Nonpublication.com! And here is the text of proposed FRAP 32.1:
Welcome to the Blogosphere . . . to The Fladen Experience, a group blog from Stanford Law School students, Elliot Fladen, Phoebe Kozinski, Ty Clevenger, Tyler Doyle, Nathan Cemenska, and Ying Ma. Initial Allocations of Property Rights Michigan law student Heidi Bond blogs, "our property professor told us to come up with some alternatives to a First-In-Time scheme for distribution of new resources," and one of the alternatives a classmate came up with was "Bribery--the person willing to pay the largest bribe to the government official who registers the resource gets it." Setting the wealth-transfer issues aside, this is the winner! In essence, this is a suggestion for an auction--the scheme that gets the resource to its highest and best use with the lowest transaction costs. Bravo for the smart students at Michigan! Update: Heidi responds! It turns out that I misread Heidi's post & it was she, not a classmate, who came up with "bribery" as the allocation method. And of course, she doesn't support bribery--neither do I, because it does have wealth transfer effects. As Heidi points out, there are any number of reasons why an auction (or bribery) might not actually produce the highest and best use, including situations where collective uses do not result in bids because of transaction costs. Even more Kudos to Ms. Bond. And my apologies, if my post was misleading. History of Legal Thought Courtesy of Will Baude, this exchange between a student and Richard Posner in the History of Legal Thought class at Chicago:
Posner: Pain in the ass, right? Rappaport on Precedent I strongly recommend Michael Rapport's post on precedent and originalism over at The Right Coast. Here is a taste:
Klerman on Judicial Independence at UCLA At UCLA's legal history series, Dan Klerman (USC) presents The Value of Judicial Independence: Evidence from 18th-Century England. Here is the abstract:
Boardman on Risk at George Mason At George Mason, Michelle Boardman, GMU School of Law, presents The Life and Death of Risk: From Ignorance to Certainty. Cuellar on Public Involvement in the Administrative State Mariano-Florentino Cuellar (Stanford Law School) has posted Rethinking Public Engagement in the Administrative State on SSRN. Here is the abstract:
Hanewicz on the Business Judgment Rule Wayne Hanewicz (University of Florida - Fredric G. Levin College of Law) has uploaded When Silence is Golden: Why the Business Judgment Rule Should Apply to No-Shops in Stock-for-Stock Merger Agreements (Journal of Corporation Law, Vol. 28, No. 2) to SSRN. Here is the abstract:
Baker and Krawiec on Incomplete Statutes & the Nondelegation Doctrine Scott Baker and Kimberly D. Krawiec (University of North Carolina at Chapel Hill - School of Law and University of North Carolina School of Law)has uploaded The Penalty Default Canon (George Washington Law Review, Forthcoming) to SSRN. Here is the abstract:
Ljungqvist on Conflicts of Interest & IPOs Alexander Ljungqvist (New York University) has posted Conflicts of Interest and Efficient Contracting in IPOs on SSRN. Here is the abstract:
Conference Announcement: Securing Privacy in the Digital Age
This Symposium is appropriate for anyone interested in developing a legal regime that better promotes computer security than our current one. The authors represent a wide variety of viewpoints: academics, policy makers, economists, advocates, and legal and corporate professionals, and we anticipate the audience will reflect this diversity as well. The authors are listed on the symposium website. Papers will be published in a scholarly volume that will be available in late 2004. The Symposium Editors are: Margaret Jane Radin, Wm. Benjamin Scott and Luna M. Scott Professor of Law, Director, Stanford Program in Law, Science and Technology, Anupam Chander, Professor, UC Davis School of Law, Visiting Professor Stanford Law School, Spring 2004, and Lauren Gelman, Assistant Director, Center for Internet and Society, Stanford Law School. Wednesday, January 14, 2004
Eternal Life and Risk, with an Update on Risk Aversion Among Ancient Vampires Tyler Cowen poses the following problem on the Conspiracy:
Update: An astute reader notes that in contemporary vampire fiction, ancient vampires are generally potrayed as extremely risk averse--employing proxies when personal action in accord with their conception of the good (the bad?) would involve a significant risk to their immortality. Further Update: Check out En Banc's Nick Morgan's comments here. And for more on Vampires, see Will Baude on Crescat Sententia. Blogging and Academia There has been quite a bit of discussion recently about blogging and the academic world and especially about the impact of blogging on academic hiring. Here are links to some of the many posts on blogging and getting an academic job:
--Political blogging provides substantial information about a candidate's politics. Can such information affect the hiring process? It depends on the discipline. Law school hiring, for example, has a discernable political dimension, reflecting the liberal to left composition of most law school faculties. Some conservative and libertarian entry level candidates use a stealth strategy to get their first academic job--obviously political blogging could render that strategy unsuccessful. --Blogging creates relationships. As a result of my blogging over the past year or so, I've gotten to know a bit about several law students, judicial clerks, and lawyers. In several cases, other bloggers (and non-bloggers) have written me for advice about their academic job search. These personal contacts can be key to getting past the "first screen," the initial process by which law schools winnow out 95% of the potential applicants for acadmeic jobs. A very thoughtful law student blog with high quality posts that include some real scholarly content can create a favorable impression on the current crop of academic law bloggers. The blogosphere lends itself to the creation of informal relationships because of the back and forth, commentary, and cross-linking that connect blogs with related content. --I've already heard from one entry-level candidate whose blog played a substantial positive role in the hiring process. The hiring committee at one school (not my own) was very familiar with the candidate's blog and the blog's content played a significant role in the interview process. Of course, for a blog to play this kind of role, the content will have to be quite good. Despite the very large number of readers that some academic blogs attract, the current academic blogosphere is also in some ways like a very small conference--the number of academic bloggers is really quite tiny. But that may be starting to change. I recently spoke with someone who was seriously thinking about setting up a subject-matter specific blog along the lines of Punishment Theory but in a different area. Several such blogs would bring new audiences to the blogosphere and make the kind of academic discussions that currently take place on closed email discussion lists (conlawprof, cyberprof, etc.) more transparent. In my opinion, it is too early to tell where this is all heading. I would certainly not be surprised if academic blogs gradually faded from the scene or if the blog were replaced by something new and better. All I can say for sure is that my blogging over the course of the past year has affected my view of the academic world in significant and surprising ways. I suspect that I am not the only one who can say this. Duff on Extreme Mental or Emotional Disturbance Surf on over to Punishment Theory for this post by Antony Duff, with a reply by Victor Tadros. Heverly on the Information Semicommons We all know about the tragedy of the commons, and Frank Michelman and Michael Heller introduced us to the tragedy of the anticommons. Now comes Robert A. Heverly (University of East Anglia - Norwich Law School) with The Information Semicommons:
Stephen Barnett on No-Citation Rules Stephen R. Barnett (University of California, Berkeley - School of Law (Boalt Hall)) has posted No-Citation Rules Under Siege: A Battlefield Report and Analysis (Journal of Appellate Practice and Process, Vol. 5, No. 2, Fall 2003) on SSRN. Here is the abstract:
Dauber on Victim Compensation and the War of 1812 Michele Landis Dauber (Stanford University - School of Law) has uploaded The War of 1812, September 11th, and the Politics of Compensation to SSRN. Here is the abstract:
Mann on State Bankruptcy Laws Ronald J. Mann (University of Texas at Austin - School of Law) has posted The Rise of State Bankruptcy-Directed Legislation on SSRN. Here is the abstract:
Tuesday, January 13, 2004
Tillman Sends a Rejection Letter to Hamilton, Jay, and Madison Seth Barrett Tillman (New Jersey District Court) has uploaded The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation to SSRN. Here is the abstract:
Gross on Torture Oren Gross (University of Minnesota Law School) has posted The Prohibition on Torture and the Limits of the Law (TORTURE, Sanford Levinson, ed., Oxford University Press, 2004) on SSRN. Here is the abstract:
It's Back! The infamous tournament of judges is making another appearance! This time, at Florida State, Mitu Gulati, Georgetown University Law Center (short-course visiting professor at FSU) presents Who Would Win a Tournament of Judges? (with co-author Stephen Choi). (FSU's version is password protected, but I found the paper at Georgetown. I don't know if the versions are identical.) This is a must download! The blawgosphere wants to know: who is the winner? I know, but if you want to, you will have to download Gulati's paper! (For Choi & Gulati's prior paper, A Tournament of Judges, follow the link.) Ramseyer on Relationship Banking at Chicago At Chicago's Olin series, J. Mark Ramseyer, Mistubishi Professor of Japanese Legal Studies, Harvard University presents Does Relationship Banking Matter? Japanese Bank-Borrower Ties in Good Times and Bad coauthored with Yoshiro Miwa. Monday, January 12, 2004
Weekend Roundup On Saturday, the Download of the Week was a paper by Steve Shiffrin and the Legal Theory Bookworm recommended A Companion to Philosophy of Law and Legal Theory by Dennis Patterson (Editor) and The Oxford Handbook of Jurisprudence and the Philosophy of Law by Jules Coleman and Scott Shapiro. On Sunday, the Legal Theory Calendar previewed this week's workshops and conferences. The Legal Theory Lexicon entry was on "justice." MacLeod on Standard Form Contracts at Columbia At Columbia's law and economics series, Professor William Bentley MacLeod (Visiting Professor of Economics, Princeton University and Professor of Economics and Law, The University of Southern California) presents On the Efficiency and Enforcement of Stndard Form Contracts - The Case of Construction," Co-author Surajeet Chakravorty. Stephen Parry on Harm & Counterfactuals I've just caught up with this paper, posted by Stephen Parry, Harm, History, and Counterfactuals. Here is a taste:
Balkin on Digital Speech Jack M. Balkin (Yale University - Law School) has posted Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society (New York University Law Review, Forthcoming) on SSRN. Here is the abstract:
Schneider on Statutory Construction in Tax Cases Daniel M. Schneider (Northern Illinois University - College of Law) has posted Statutory Construction in Federal Appellate Tax Cases: The Effect of Judges' Social Backgrounds and of Other Aspects of Litigation (Journal of Law & Policy, Vol. 13, 2003). Here is the abstract:
Walker on Class Action Trials Laurens Walker (University of Virginia School of Law) has posted A Model Plan to Resolve Federal Class Action Cases by Jury Trial (Virginia Law Review, Vol. 88, No. 2, pp. 405-445, April 2002) on SSRN. Here is the abstract:
Germain on French Statutory Construction Claire M. Germain (Cornell University - School of Law) has posted Approaches to Statutory Interpretation and Legislative History in France (Duke Journal of Comparative & International Law, Vol. 13, No. 3, Summer 2003) on SSRN. Here is the abstract:
Sunday, January 11, 2004
Legal theory Lexicon: Justice
A Typology of Justice What is justice? One way to approach this question is via a typology--a scheme that divides the general and abstract concept of justice into component parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. These may be deep and fundamental differences between different types of justice, or these categories may simply be heuristic devices. For now, let's lay that question to the side and focus instead on a brief exposition of each of the four types of justice:
--Should the government adopt an incomes policy (such as a guaranteed annual income) that will provide a minimum level of resources to those who are least well off? --should the burden of military service by distributed equally (in the form of mandatory service for all citizens) or should this burden be allocated by a volunteer army and market incentives? In a future post, I will say more about particular theories of distributive justice. For now, let me just mention three approaches. The first approach is found in Rawls's theory, justice as fairness, which includes two principles of distributive justice. The first principle guarantees to every citizen a fully adequate scheme of equal basic liberties, such as freedom of conscience, the right to vote, and so froth. The second principle (the "difference principle") requires that inequalities of income and wealth work to the advantage of the least well-off group in society. The second approach is strict egalitarianism--which would not permit differences with respect to whatever good is the subject of justice. Why not equality of wealth and income? That's one option for egalitarians, but there are others such as equality of welfare or equality of resources of equality of opportunity for these things. The third approach is libertarianism--which holds that the distribution of wealth and resources is not itself a proper subject matter for justice. Rather, libertarians begin with the premise that each individual should have certain liberty rights (e.g. self-ownership, property rights, and contract rights) and that whatever distribution results from the exercise of these rights is a just distribution. Corrective Justice Aristotle defined "corrective" or "rectificatory" justice as "Justice in transactions." That's a good place to start. With Aristotle we might divide transactions into two categories, the voluntary and the involuntary. Justice in voluntary transactions would include the topics encompassed by contract law. Justice in involuntary transactions would include both transactions that are involuntary due to force (e.g. battery) and transactions that are involuntary due to fraud (e.g. fraud, misrepresentation, etc.). One of the great debates in contemporary legal theory concerns the status of corrective justice. This topic is especially hot in tort theory and criminal law theory. For example, some tort theories believe that the purpose of tort law is captured by the idea of corrective justice. Such theorists tend to believe that liability standards should be fault bases (e.g. intentional tort or negligence as opposed to strict liability) and that the purposes of tort damages is to make the plaintiff whole (and to force the defendant to disgorge wrongful gains) and not deterrence. Other tort theorists, e.g. welfarists or utilitarians, believe that corrective justice institutions should be judged solely by the consequences they produce. So a utilitarian might believe that the purpose of tort law is to produce optimum deterrence. Finally, some tort theorists believe that tort law serves the ends of distributive justice. Political Justice Yet another topic of justice is political justice. In a sense, this might be seen as a subtopic of distributive justice--since political rights and responsibilities can be seen as encompassed within the general category of the benefits and burdens of social cooperation. In relationship to the law school curriculum, we might say that political justice is concerned with the foundational issues of constitutional theory. Who shall have the right to vote? What power shall be allocated to local communities as opposed to nation-states? What limitations shall there be on the power of democratic majorities (e.g. individual rights & judicial review)? The topic of political justice shades into another important idea--"political legitimacy." Are these two ideas essentially the same or are they different? One view is that it is possible to have a legitimate political order that is nonetheless unjust (or vice versa). For example, some might say that the test of political legitimacy has to do with the origination of the political system. If a system has been accepted and endorsed by the people, this view contends, it is legitimate--even if the substance of the system (e.g. the allocation of political rights) is unjust. On this view, a religious state might be legitimate but unjust. A quite different view is that political legitimacy depends on political justice. For example, Randy Barnett has argued that the test for constitutional legitimacy is whether the constitution provides adequate guarantees of just outcomes (for Barnett, the protection of individual liberty). On this view, popular endorsement of an unjust political system does not make that system legitimate. Procedural Justice A final form of justice is "procedural justice." The very existence of this category is controversial. Some theorists argue that the only the outcomes of procedures count. But this is not the universal view. Some theorists believe that procedures are important for reasons that are not reducible to a concern with outcomes. One helpful typology was provided by Rawls, who distinguished between perfect, imperfect, and pure procedural justice.
--Imperfect procedural justice. Of course, in the actual world, most procedures fall short of 100% accuracy. Moreover, the more accurate a procedure is, the more expensive it is likely to be. Imperfect procedural justice acknowledges these facts and therefore conceives of procedural justice as a fair balance between the benefits of accuracy and the costs of procedure. --Pure procedural justice is based on the denial of the premise that we have an independent criterion for a correct outcome. We have a case of pure procedural justice if the procedure itself provides the criterion for judging the justice of the outcome. Rawls himself doubted there were many cases of pure procedural justice. He did see one case--a fair bet. With a fair gamble (e.g. a roll of unloaded dice), the outcome doesn't matter.
Deontological Ideas About Justice By way of contrast, deontological theories have a natural affinity for the idea that justice serves as an independent criterion for the rightness and wrongness of actions. Thus, it is a characteristically deontological position to maintain that unjust actions or institutions cannot be justified on the ground that they would produce good consequences. Thus, deontologists might say that it would be unjust and hence impermissible to punish an innocent persons--even if the net long-term effect of that action were to produce good consequences. Areataic Ideas About Justice From the view point of aretaic theory, justice is primarily a virtue, an excellence of human character. One of the most difficult problems for virtue ethics has been the development of an adequate theory of the virtue of justice. One view is that justice is the disposition to take neither too much nor too little for one's self. Another view is that justice is the disposition to act in conformity with social and legal norms, tempered by equity. Yet a third view is that the virtue of justice is simply the disposition to act in accord with the right theory of what a just action is. Conclusion Contemporary legal education is, in a sense, all about justice. Natural law, legal positivism, and legal realism all go beyond the black letter law and ask the question, "What should the law be?" Law students quickly discover that their instructors are frequently more interested in questions like, "Is that a just rule?" than in questions like, "What is the rule?" As you continue your study of legal rules, you can begin to ask questions like: "Does this rule address a question of distributive, corrective, political, or procedural justice?" "Is the rule in the case (or statute or constitutional provision) just or unjust?" "What theory of justice underlies the reasoning of the court?" Legal Theory Calendar
At Chicago's Olin series, J. Mark Ramseyer, Mistubishi Professor of Japanese Legal Studies, Harvard University presents Does Relationship Banking Matter? Japanese Bank-Borrower Ties in Good Times and Bad coauthored with Yoshiro Miwa.
At George Mason, Michelle Boardman, GMU School of Law, presents The Life and Death of Risk: From Ignorance to Certainty.
Saturday, January 10, 2004
Certiorari in Hamadi Case Howard Bashman rounds up the press coverage on the Hamadi grant. Here is a short excerpt from David Savage's L.A. Times story:
Legal Theory Bookworm This week the Legal Theory Bookworm has two recommendations, both standard reference works for legal theorists:
The Oxford Handbook of Jurisprudence and the Philosophy of Law by Jules Coleman and Scott Shapiro (Editors). This volume has essays on natural law by John Finnis and Brian Bix, on positivism by Andrei Marmor and Kenneth Einar Himma, on reasons by John Gardner and Timothy Macklem, and on law and objectivity by Brian Leiter--and much more. Download of the Week The Download of the Week is The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers by Steve Shiffrin of Cornell. Shiffrin has long been one of the finest American constitutional scholars. Here is the abstract of this very interesting article:
Friday, January 09, 2004
Welcome to the Blogosphere . . . to Displacement of Concepts, "Thoughts on technology, innovation, law, legal education, economics, cyberspace, intellectual property, and other things of interest to the humans inhabiting the information society, brought to you by a few folks at the University of East Anglia and the Norwich Law School." The bloggers include: Robert A. Heverly, Andrew Scott, Lindsay Stirton, and Arvind T. Thattai. Call for Papers: Evil, Law and the State
CALL FOR PAPERS
Papers, reports, work-in-progress and workshops are invited on issues related to any of the following themes:
Dr Rob Fisher Inter-Disciplinary.Net Oxfordshire, United Kingdom Email: rf@inter-disciplinary.net Selected papers accepted for and presented at this conference will be published, as revised, in a themed volume. In addition, all papers accepted for and presented at the conference will appear in an ISBN eBook. Evil, Law, and the State is part of a larger series of ongoing conferences, run under the general banner 'At the Interface.' This series aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting. For further information about the project please go to: http://www.wickedness.net/els/els.htm For further information about the conference please go to: http://www.wickedness.net/els/els1/els04cfp.htm Claeys on Separation of Powers Eric Claeys (Saint Louis University - School of Law) has posted Separation of Powers and the Living Constitution: How the Supreme Court Has Used Progressive Political Theory to Reconcile Formalism and Functionalism on SSRN. Here is the abstract:
Berman on the Sentencing Guidelines Douglas A. Berman (Ohio State University - Michael E. Moritz College of Law) has posted From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing (Iowa Law Review, Vol. 87, No. 2, March 2002) on SSRN. Here is the abstract:
Conference Announcement: Behavioral Analysis of Legal Institutions at Florida Stat
Spring 2004 Symposium March 26-27, 2004 Florida State University College of Law Program Overview
Leading scholars in the fields of law and the behavioral sciences will participate in discussions organized around the judgments and decisions that take place within particular institutional settings of legal importance. Planned papers include presentations of original empirical research that extends our understanding of how legal institutions affect behavior and critical analyses of existing empirical research on the behavior of legal institutions. The conference will provide an opportunity to take stock of where the behavioral study of legal institutions stands, to discuss why the legal system should pay greater, or perhaps less, attention to this research, and to consider future directions for this field of study. Papers and comments will be published in Volume 32 of the Florida State University Law Review. This symposium has been approved for continuing legal education credit by The Florida Bar. Kordana and O'Reilly on Daubert Kevin A. Kordana and Terrance O'Reilly (University of Virginia School of Law and Independent) have posted Daubert and Litigation-Driven Econometrics (as published in Virginia Law Review, Vol. 87, pp. 2019-2027, November 2001) on SSRN. Here is the abstract:
Thursday, January 08, 2004
Gulati at FSU Today At Florida State, Mitu Gulati, Georgetown University Law Center (short-course visiting professor at FSU) presents "Who Would Win a Tournament of Judges?" Akhil Amar on the West Wing Gary O'Connor writes
Getting to Formalism
Frequent readers know that I am a self-avowed neoformalist. What does that mean? Putting it in the negative, I reject the idea that law should be used instrumentally by judges to achieve the judge's idea of what constitutes good policy. On the positive side, I have argued that judges should adhere to "the rules laid down," roughly the text of statutes and constitutions in light of evidence of their original meaning. For a very brief summary of my views, surf to A Neoformalist Manifesto. In this post, I will simply assume that a formalist legal regime is the goal, and ask the next question: "How can we get to formalism?" This is too big a question for a single blog post, so I will limit my discussion to an important subset of this question: "How can we get to a formalist constitutional regime?" I am not going to argue for the virtues of formalism. Instead, for the sake of argument we can begin with the assumption that the goal is a formalist constitution--more or a less a constitutional regime where courts look to the text, structure, and original meaning of the Constitution as sources of interpretive authority and not a regime where judges rely on their own beliefs about what is just or what will produce the best consequences as a source of constitutional law. We do not have a formalist constitution today. What if we had the political will to achieve that goal? What is the best way to get to constitutional formalism? An Attractive Proposition: Constitutional Exclusivism If you are a constitutional formalist, the following proposition seems attractive as a starting point:
A Transition from What to What? When we are thinking about the transition to constitutional formalism, it is important to begin with some understanding of the status quo. Of course, that itself is a huge topic. To what extent is the existing constitutional order in the United States consistent with a formalist understanding of the Constitution? Rather than offer evidence, I would like to offer a working hypothesis. Let's assume for the sake of argument that the current set of constitutional doctrines, about federal power, separation of powers, and individual rights is a substantial departure from a formalist constitution. That is, I will assume that a textualist and originalist approach to constitutional interpretation would require the following significant constitutional changes: Finally, I want to reemphasize that these are assumptions--not arguments and evidence. The assumptions are necessary so that we can focus on the question: "Do we know the best way to constitutional formalism?" The Big Bang We have tentatively accepted constitutional exclusivism as a normative premise: It is the constitution (and not judicial decisions) that is a genuine source of normative authority. What are its implications? On the surface, at least, our normative premise would seem to lead to the conclusion that everyone (citizens and officials alike) should begins to act on the basis of the formalist constitution. That is, we should all give our constitutional allegiance to the real constitution--the one that sits under glass in Washington, D.C. And we should withhold our allegiance from the judicially mangled constitution--the one found between the covers of the United States Reports. Suppose that we did. The result would be a constitutional big bang, a rapid transition from the realist constitution created by judicial fiat to the constitutional order embodied in the text, structure, and history of the Constitution of the United States of America. But a moment's reflection suggests that this constitutional big bang would be problematic, to say the very least. For now, let's put aside the practical problems. Let's ignore the fact that it might be difficult to instantaneously transition to a world where the FCC, the CPSC, the EPA, the SEC, and the NLRB were all unconstitutional. Let's set aside the problem of transferring authority from Washington to Albany, Sacramento, and Austin. Even without those problems, we would face another problem of monumental proportions. What problem is that? A big bang that involved everyone (judges, other officials, and citizens) would lead to an intractable problem of authority and social coordination. Even if every single judge, every single official, and every single citizen were to become a committed originalist overnight, this would not lead to agreement about the meaning of the constitution. Why not? There are three problems that constitutional formalism must face:
2. The Problem of Incomplete Historical Knowledge--Different interpreters of the constitution know different things about constitutional history, and even when all that knowledge is added together, it is partial and incomplete. It is not uncommon for constitutional scholars to discover new historical evidence, or discovery a significant but neglected passage in a well-known source. Because of incomplete historical knowledge, different interpreters will understand the original meaning of the constitution in different ways. Because new historical knowledge comes to light or becomes more widely disseminated, our understanding of original meaning will vary over time. 3. The Problem of Partiality--The first two problems are compounded by a third. Different interpreters are partial to different interests. We are members of different affinity groups and we are committed to a variety of causes and ideologies. Given human nature, it is hardly surprising that our attachments influence our interpretations. Given textual vagueness and ambiguity and the problem of incomplete historical knowledge, it is inevitable that we will tend to favor those interpretations of the Constitution that serve the interests to which we are partial. Such partiality is not necessarily a result of bad faith. It is simply a fact of human nature that we are attracted to the conclusions that we wish were true. A Modified Big Bang So we could modify the big bang. As a first step, we might say that citizens should not interpret the constitution on their own, but should instead defer to the judgments of officials, (judges, legislators, and executive officers). In order to make this workable, we would need a mechanism for coordination among the branches of government. On some questions, we might conclude that Congress, the President, or the States have final interpretive authority. But on most questions, we would be likely to conclude that the judiciary should have the final word. That is, on most questions of constitutional law, courts interpret the constitution and the other branches take judicial interpretations as authoritative. I realize that this claim is controversial. But once again, for the sake of argument, let's simplify and focus on the judiciary as the locus of interpretive authority A Judicial Big Bang So let's suppose that we modified our normative commitment to constitutional exclusivism as follows:
Law of the Case Because we have a system with appellate courts, we need to modify our principle once again. We need to take into account the doctrine that lawyers call the law of the case. This doctrine obligates a lower court to respect a constitutional interpretation made by a higher court in the same case on appeal. If we add this doctrine to our formulation of constitutional exclusivism, we get something like the following:
If each panel of three judges accepted the principle of constitutional exclusivism, the result would be that the meaning of the Constitution with respect to a particular issue could never be settled within a Circuit until that issue was decided by the United States Supreme Court. The Constitution might mean one thing this week and another thing next week. Trial courts within the circuits would be faced with a real practical problem. Given conflicting Circuit precedent, what is the law? To make vertical stare decisis work, it must be supplemented by a rule of horizontal stare decisis for intermediate appellate courts that sit as panels. Once again, we must modify the principle of constitutional exclusivism. We now have the following formulation:
Horizontal Stare Decisis in the Supreme Court My guess is that many formalists and originalists who are attracted to the idea of constitutional exclusivism would be willing to go along with the modified version of that principle that I have proposed. What matters, they might say, is the Supreme Court. When we said that it is the constitution that is the ultimate source of authority, we meant that the Supreme Court is bound by the original meaning of the Constitution and not be its own precedents. So this is where my argument starts to get truly controversial. I am going to try to convince you that the Supreme Court should consider itself bound by its own prior decisions, and that this is the best expression of constitutional formalism. Here we go! As a first step, let's just list the options we have with respect to the role of stare decisis in the Supreme Court:
Option two: an instrumentalist conception of precedent. Of course, even if the big bang were limited to the Supreme Court, there would be serious problems. First, there is the obvious problem of a potentially rapid and disruptive change in the basic structure of our federal system. Second, there is the continuing problem that without a doctrine of precedent, constitutional meaning can remain unsettled. Given the problems of textual ambiguity, incomplete historical knowledge, and partiality, it is quite likely that a system without precedent would produce flips and flops during those historical periods when the Court was closely balanced between adherents of different political ideologies and the control of the Presidency passed back and forth between the parties. One solution to these problems is an instrumentalist conception of precedent. The Court could balance the interests in constitutional stability and the protection of social expectations against the need to correct constitutional error, relying on precedent when the former interests were weightier than the latter. Option three: a formalist conception of precedent. There is a third option. The Supreme Court might consider itself bound by its own prior decisions. Of course, even a strong doctrine of horizontal stare decisis can allow for the overruling of precedent for reasons of precedent. When one case is egregiously out of line with surrounding doctrine, there will come a time when the weight of precedent requires that the outlying case be declared a mistake and overruled or limited to its own facts. A formalist conception of precedent allows for constitutional evolution, but only at a glacial pace. If we rule out option two, we are left with option one--no precedent--and option three--formalist precedent. That is, we are faced with the choice between a limited big bang, on the one hand, and formalist evolution, on the other. Which of these two choices should a formalist prefer? Constitutional Exclusivism Revisited As we begin to consider the choice between options one and three, it is important to consider our current stance with respect to constitutional exclusivism. I would like to suggest that we have already gone a long way towards rejecting the logic of constitutional exclusivism. First, we have already concluded that the original meaning of the Constitution is not the exclusive source of binding authority on constitutional questions. We have agreed that the Constitution should be supplemented by the doctrine of law of the case, the doctrine of vertical stare decisis, and by the doctrine of horizontal stare decisis in intermediate courts of appeal. Once we have accepted those doctrines, we have accepted the principle that stare decisis should (sometimes) override the authority of the constitution's text and original meaning as understood by particular citizens, officials, or judges. Hold on there! Aren't you trying to con us? We have only conceded that lower courts should be bound by precedent. But the Supreme Court is special, isn't it? Because the Supreme Court has ultimate authority, isn't the Supreme Court the only court that really counts! But as a matter of fact, the Supreme Court isn't the only court that really counts. Indeed, as a practical matter, the Courts of Appeal are the courts of last resort for the overwhelming majority of litigants and cases. The Supreme Court hears fewer than 200 cases per year; the intermediate courts of appeal in the federal system hear tens of thousands of cases every year. The Supreme Court revisits several major constitutional issues each year, but the courts of appeal of appeal revisit virtually every important constitutonal question in a variety of factual contexts on a regular basis. This point is crucially important: when you concede the normative authority of precedent in the lower courts, you have made a concession of tremendous practical importance. The Relationship Between Vertical and Horizontal Stare Decisis There is another way in which a concession with respect to vertical stare decisis has important implications for horizontal stare decisis in the Supreme Court. Enforcing a rule of vertical stare decisis requires the Supreme Court to itself adhere to a rule of horizontal stare decisis. Huh? Let me repeat that: if the Supreme Court actually enforces a doctrine of vertical precedent, then it must (at least partially) bind itself by a doctrine of horizontal precedent. Why? Imagine that a Circuit Court disregards a Supreme Court precedent and instead makes a decision based on its prediction of how the Supreme Court would likely decide the case if it were to go up on certiorari. And suppose the appellate judges are a good predictor of how the new formalist Supreme Court would in fact decide the case. What happens next? If the Supreme Court does not follow its own precedents and instead affirms the lower court's decision, then the Supreme Court will have followed the principle of constitutional exclusivism but it will have failed to enforce the rule of vertical stare decisis. If the Court does enforce vertical stare decisis and reverses the lower court that decided on the basis of the original meaning of the text, then the Supreme Court will in effect be following its own prior (and pre-formalist) precedents. The lesson is simple: consistent enforcement of vertical stare decisis requires a substantial degree of adherence to horizontal stare decisis. Back to the Practical: Transition Costs So far, I have not relied on the pratical problems with a big bang, but let's turn to those problems now. If the Supreme Court were to take a big bang approach to the return to original meaning, the nation would face substantial practical problems. Withint just a few years, the whole structure of the federalism and separation of powers would be radically transformed. I don't know how to estimate the costs of a big-bang transition to constitutional formalism, but I suspect these costs would be quite high. Of course, we could manage these costs by adopting Option Two, the instrumentalist conception of precedent, but that option is inconsistent with our goal, the transition to a formalist constitution. This only leaves one option, a formalist doctrine of precedent. In the end, the formalist doctrine of precedent is the only approach that is simultaneously feasible, normatively attractive, and true to the principles of formalism itself! The Downside of Formalist Precedent Of course, this picture is not all rosy. If the Supreme Court adheres to precedent, then the transition to constitutional formalism will be a slow one. Is this cost too high? I would like to suggest several tentative thoughts for your consideration: A Final Formulation So let's give one final formulation of the principle of constitutonal exclusivism, adding in our understanding of the proper role of horizontal stare decisis in the Supreme Court:
Conclusion Of course, there will be many originalists who find my arguments unpersuasive. They will say that we cannot and should not wait for decades for the restoration of the original meaning of the Constitution. There are those who will argue that the transition to formalism must proceed with all deliberate speed. The partisans of original meaning may concede that a big bang is neither feasible nor desirable, but nonetheless contend that originalist judges should use the levers of judicial power to move as rapidly as feasible and desirable towards that goal. That is, there are originalists who will argue that we should employ instrumentalist means to achieve originalist ends. But I would like to suggest that this approach to judging is, in the end, inconsistent with the greatest strenghth of constitutional formalism. In an age of politicization, where judges are increasingly selected or defeated on the basis of political ideology and the judiciary has come to be seen as the third political branch, the greatest strenghth of constitutional formalism is that it offers a real alternative to a politicized judicary. The central idea of constitutional formalism is that judges should follow the rules laid down--deciding the cases before them on the basis of law and not on the basis of an agenda of preferred ends that are ultimately selected on the basis of political ideologies. If constitutional formalism is percieved as a cover for other political agendas, it will fail. For constitutional formalism to succeed, its methods must be formal, through and through. When it comes to precedent in a common law system, the formal path is clearly marked. Following the rules laid down in constitutional cases means following precedent. But following precedent does not mean following the legislative pronouncements of realist judges. A formalist doctrine of precedent inevitably (but gradually) leads to following decisions that are based on a good faith reading of the original meaning of the constitutional text. A return to the formalist conception of precedent is, in the final analysis, the best way of getting to constitutional formalism. Update: Stuart Buck has comments here, with a reply by C.E. Petit here. Will Baude is Off to Class. Yglesias suggests that I have gotten to formalism through legal realism. Pejmanesque comments here. More comments from Strange Doctrines here. Randy Barnett comments on the post and the event from which it derives. And Glenn Reynolds suggests that neoformalist legal theory might be called "legal legalism." Bebchuk on Takeovers Lucian Arye Bebchuk (Harvard Law School) has posted The Pressure to Tender: An Analysis and a Proposed Remedy (Delaware Journal of Corporate Law (DJCL), Vol. 12, pp. 911-949, 1987) on SSRN. Here is the abstract:
Anderson on Military Lawyers and the Laws of War Kenneth Anderson (Washington College of Law, American University) has posted The Role of the United States Military Lawyer in Projecting a Vision of the Laws of War (Chicago Journal of International Law, Vol. 4, No. 2, Fall 2003) on SSRN. Here is the abstract:
Langevoort on Technological Change as the Cause of Financial Scandals Donald C. Langevoort (Georgetown University Law Center) has posted Technological Evolution and the Devolution of Corporate Financial Reporting on SSRN. Here is the abstract:
Kamin on Harmless Error Sam Kamin (University of Denver College of Law) has posted Harmless Error and the Rights/Remedies Split (Virginia Law Review, Volume 88, No. 1, pp. 1-86, March 2002) on SSRN. Here is the abstract:
Wednesday, January 07, 2004
Read this Post! Here. Actually, I would especially like you to read Stephen Bainbridge's report of remarks by Villanova law school Dean Mark Sargent, if you happen to be University of San Diego Dean, Dan Rodriguez! More on the Original Meaning of the Copyright Clause C.E. Petit over at Scrivener's Error has a very thoughtful post that responds to my ruminations on the original meaning of the copyright clause, found at the end of Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment. Back from Atlanta I'm back from the AALS meeting in Atlanta. After a nightmarish 6 minutes at O'Hare, dashing from the end of terminal C to the end of terminal B, I arrived to a three hour wait for my luggage at LAX. I managed to blog five of the sessions that I attended. Here is the roundup of the posts:
Frischmann's Institutional Theory of International Law Brett M. Frischmann (Loyola University of Chicago, Law School) has posted A Dynamic Institutional Theory of International Law (Buffalo Law Review, Vol. 51, 2003) on SSRN. Here is the abstract:
Perino on Up-the-Ladder Reporting Rules Michael A. Perino (St. John's University - School of Law) has posted How Vigorously Will the SEC Enforce Attorney Up-the-Ladder Reporting Rules? An Analysis of Institutional Constraints, Norms, and Biases on SSRN. Here is the abstract:
Shiffrin on Comulsory Public Education and the First Amendment Steven Shiffrin (Cornell University - School of Law) has posted The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers (Cornell Journal of Law and Public Policy, Vol. 11, pp. 503-51, 2002) on SSRN. Here is the abstract:
Schruers on ISP Liability Matthew Schruers (Texas Wesleyan Law School) has posted The History and Economics of ISP Liability for Third Party Content (Virginia Law Review, Volume 88, No. 1, pp 205-64, March 2002) on SSRN. Here is the abstract:
Tuesday, January 06, 2004
Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment
The program is being moderated by Randy Barnett (Boston University). Randy opens the program by introducing the speakers, Ed Baker (Penn), Tom Bell (Chapman), Neil Netanel (Texas), and Jessica Litman (Wayne State). Quite a lineup! Netanel Netanel begins by observing that the conflict between freedom of speech and copyright is not obvious to everyone. So, he begins with examples. First, former Senator Alan Cranston was a journalist in the 30s. He was horrified to learn that English translation of Mein Kampf had been edited to make it more palatable. He published his own translation with commentary. His version was enjoined as violating copyright. Second, the founder of the World Wide Church of God wrote a tract, which was suppressed by the Church because it included racist material. A dissident church wanted to publish it, but they were enjoined. Third, a documentary filmmaker made a documentary on the San Francisco Opera—in the documentary there is shot of the stagehands playing checkers. In the background, on the television, the Simpsons was playing--4 ½ seconds of background. The documentary was picked up by PBS, and clearances were required. 20th Century Fox wanted $10,000 for the clip. So Homer Simpson was digitally removed from the documentary. This is a frequent problem for documentary filmmakers. The examples show that there is a conflict between the first amendment and freedom of speech, but some courts have gone so far as to state that copyright is categorically immune from first amendment challenge. Netanel now turns to Eldred v. Ashcroft. What did the first amendment have to say about the DC Circuit statement that there was categorical immunity? Surprisingly, the Court did not accept the plaintiff’s argument that intermediate scrutiny applied to the retroactive extension of copyright terms. The Court says that freedom of speech bears less heavily when you are not making your own speech. First, says Netanel, that was flat out wrong. Handing out the bible or the Communist Manifesto is obviously within the core of the First Amendment. Second, copyrighted material can be incorporated in original speech, e.g. the Simpsons clip in the documentary. How did the Court justify this? The Court had three arguments: (1) the first amendment was adopted close in time to the copyright clause. Netanel ridicules this argument, arguing that it is irrelevant, because the first amendment limits many other Article I powers and it was adopted close in time to them as well; (2) copyright has free speech benefits, e.g. it promotes the production of speech. Netanel argues that this does not entail that there should be no first amendment scrutiny, (3) copyright law has built in first amendment protections, including (a) idea/expression and (b) fair use. But these doctrines are notoriously inconsistent and frequently do not do the job of protecting free speech; however, footnote 24 suggests that the first amendment may guide the interpretation of these two accommodating doctrines. Baker Ed Baker is one of most distinguished first amendment scholars working today. He begins with the observation that he finds Eldred to be unproblematic. Logically, says Baker, it seems absurd to suggest that freedom of speech would not limit copyright. It is true that the Constitution gives Congress power to regulate Commerce, but no one would think that Commerce Clause enactments are exempt from free speech scrutiny. Baker’s first suggestion is that we throw out the idea of levels of scrutiny as the basis for applying free speech doctrine to copyright. The levels of scrutiny are well designed to achieve the purposes of the first amendment. There are competing theories of the freedom of speech. If the freedom of speech is a liberty to say whatever you want, then a law that says you can’t say it because someone else said it first. As to individual speech, any copyright limitation at all is unconstitutional. Not a liberty to sell speech, but to say what you choose to say. If one goes back to the history of copyright law, commercial copying was the primary concern. Early copyright law did not constrain the individual. On the other hand, the press clause protects a particular institution—the press. Does copyright interfere with freedom of press? Generally, structural regulation of the press has been upheld. This has been true even if the regulation was concerned with content. The Newspaper Preservation Act was concerned with diversifying content. Mail subsidies for Newspapers were concerned with promoting news content. Public access channels also promote specific content, as does the requirement for having programming aimed at children. Access regulation also is concerned with promoting specific content, e.g. political speech. So, copyright, which promotes the press, can be seen as promoting a more robust communications system. But does it really do that? Whenever content is suppressed, there is a first amendment problem. The answer to the question whether copyright promotes speech depends on the content of copyright law. So the built in protections (idea/expression, fair use) is important. One example: if the copyright statute were amended to allow the copyrighting of facts and ideas, that would be problematic. Unpublished material should be especially protected by the freedom of speech—hence, there should be no copyright to withhold material from publication. Baker ends by suggesting that the doctrinal issues on content discrimination are particularly confused. First, content discrimination should not be as important as the court suggests. Second, copyright is a content-based in the sense that content is being regulated, but particular viewpoints are not targeted. Bell Tom Bell is next. His thesis is that private alternatives can make copyright unconstitutional. Here’s the argument in three steps. (1) Courts have generally interpreted free speech to allow only state restrictions on speech that prove more efficacious than private remedies. (2) Copyright restricts speech. (3) Courts, therefore, should ask whether non-statutory protections can do just as good a job as copyright. By private alternatives, Bell means “self-help remedies.” A private party’s act, neither prohibited nor compelled by law. Also, another private remedy is contract, with the civil process in the background. For example, the problem of door-to-door solicitation can be controlled privately, by fences and trespass law. Another example, the strict scrutiny test requires that we look at private remedies. For example, in Cohen the f*ck the draft case, the Court said that the private remedy (turn away and avert your eyes) is a sufficient remedy. In ACLU v. Reno, the Court suggested that the availability of filtering software—a private remedy—is relevant to the free speech restriction on Internet pornography. All of these examples were intended to establish step one in Bell’s three step argument. Bell can skip step two, since the other members of the panel have established that copyright restricts free speech. What about step three? What about such self-help mechanisms such as digital rights management (encryption)? What about contractual protection of copyright? What about the “first use” doctrine? Some new rhetoric, says Bell, would help. One idea that might help is to look at copyright as a form of welfare. These are special benefits, but we can ask whether authors can “get off the dole.” Litman Jessica Litman is the final member of the panel. She begins with the observation that the internal limits are largely incoherent and a mess. Moreover, she argues, the Digital Millennium Copyright Act does not provide even these limits. There is not fair use limitation built into the Anti-Circumvention provisions in the DMCA. There are exceptions, for example, you can hack into content-filtering software to get list of blocked sites. But you cannot create and distribute software that allows you to do this. Litman now turns to use of Section 1201 to prevent disclosure of information that is true and otherwise not unlawful. Section 1201 does not distinguish between ideas and expression. You cannot use Section 1201 to get access to information for the purpose of getting access to information and ideas. DVD players include CSS—an encryption system that prevents DVDs from being played on unlicensed machine. Litman now discusses the DeCSS case—Norwegian teenager posts DeCSS on the Internet. Trial court held that posting DeCSS or linking to a site with DeCSS was covered by the anti-circumvention provisions and that posting and linking was not protected by the First Amendment, because of the nonspeech (e.g. functional) aspects of DeCSS. This is most scary in the case of Ed Felten’s research on decryption. When he was going to present his research at a conference, the industry sent a threatening letter. Felten then withdrew his paper, and this is evidence of the chilling effect of the DMCA on what is clearly a free speech interest. Discussion I asked the first question, and my point is described below under the next bold heading. The next question is asked by David McGowan. He makes several detailed criticisms of Litman’s examples. His points are quite sharp, but too detailed for me to report here. He then asks, “What is the theory of free speech that will take care of all of these examples?” Charles Marvin raises the Berne Convention (which is largely modeled on French law). The Berne Convention is based on author’s rights and not on the basis of a utilitarian theory. Larry Alexander is next. How is the protection given by copyright to Mein Kampff different from protection by contract or property law. The rationales for lawyer confidentiality have a similar rule-utilitarian structure. Margaret Radin suggests that property rhetoric came into intellectual property law in the nineteenth century. We should ask for arguments rather than rhetoric. One way of doing that economic cost-benefit could be read into the necessary and proper clause. There is such a thing as over propertization as well as underpropertization. We should bring in the social choice critique of the process by which copyright law is enacted. A Comment on Originalism and the Relationship Between the First Amendment and the Copyright Clause As Neil Netanel was discussing the relationship between the first amendment and the copyright clause, I was thinking about originalist approaches to Congress's intellectual property powers. Netanel thought that it was completely obvious that the first amendment must create a “liberty right” that limits what would otherwise be a plenary copyright power. (The world “plenary” is mine, not Netanel’s.) Netanel’s view accords with the contemporary (post New Deal) understanding of the relationship between Congress’s Article I powers and the Bill of Rights. The modern view is that Article I creates an ocean of power in which the Bill of Rights provides islands of liberty. The original understanding, at least in its Madisonian version, may have been quite different. Suppose that the Framers saw the relationship between Article I power and the Bill of Rights differently. Suppose they saw islands of power in a sea of liberty. Suppose they believed that the first amendment’s primary function was to reinforce the message of Article I: that the powers therein granted were limited and properly construed simply would not give Congress power to restrict the freedom of speech or of the press. That is, suppose that the original understanding was that the Article I powers contained internal limits that, if respected, made the collision between freedom of speech and copyright impossible. Given this understanding of the first amendment, the first question we ought to ask is how the copyright power could be construed so as to provide internal limits on that power that avoid any collision with freedom of speech and press. With this point in mind, it is interesting to consider the first copyright act which is dramatically narrower than current law. The term was much shorter—a maximum of 28 years. More importantly, the scope of copyright itself was narrower—for example, no derivative works were covered. Given this narrower understanding of the copyright power, the kinds of examples that Netanel discusses simply would not arise. On the original understanding of the copyright power, it is not clear that there was any possibility of collision between copyright and freedom of speech. Perhaps the key to understanding the copyright power is to construe that power so as to avoid collision with free speech values. AALS Today The AALS Annual Meeting continues today. Highlights include the Section on Constitutional Law: Does Intellectual Property Threaten Freedom of Speech? Gross on Handwriting Analysis Samuel R. Gross (University of Michigan Law School) has posted Detection of Deception: The Case of Handwriting Expertise on SSRN. Here is the abstract:
Olken on White Samuel R. Olken (John Marshall Law School) has posted Historical Revisionism and Constitutional Change: Understanding the New Deal Court (Virginia Law Review, Volume 88, No. 1, pp 265-326, March 2002). Here is the abstract:
Georgakopoulos on the LaSalle Decision Nicholas L. Georgakopoulos (Indiana University School of Law - Indianapolis) has posted New Value, After LaSalle (Bkruptcy Developments, Forthcoming) on SSRN. Here is the abstract:
Monday, January 05, 2004
AALS Today The AALS Annual Meeting continues today. Highlights include:
Weekend Update On Saturday the Download of the Week was a new paper by Ronald J. Allen and M. Kristin Mace. Also Saturday, the Legal Theory Bookworm recommended books by Amy Gutmann, David Heyd, and William Galston. From Sunday, the Legal Theory Calendar and a discussion of the Rule of Law on the Legal Theory Lexicon. Bebchuck & Kahan on Fairness Opinions Lucian Arye Bebchuk and Marcel Kahan (Harvard Law School and New York University School of Law) have posted Fairness Opinions: How Fair Are They and What Can Be Done About It? (Duke Law Journal, Vol. 27, p. 27-53, 1989) on SSRN. Here is the abstract:
Korobkin on Williams v. Walker-Thomas Furniture Company Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted A 'Traditional' and 'Behavioral' Law-and-Economics Analysis of Williams v. Walker-Thomas Furniture Company. Here is the abstract:
Snyder on Immigration Proceedings Kelley Brooke Snyder (US Court of Appeals for the Fourth Circuit) has posted A Clash of Values: Classified in Information in Immigration Proceedings (Virginia Law Review, Vol. 88, No. 2, pp. 447-484, April 2002). Here is the abstract:
Cohn on Treaty Obligations for Affirmative Action Marjorie Cohn (Thomas Jefferson School of Law) has posted Affirmative Action and the Equality Principle in Human Rights Treaties: United States' Violation of Its International Obligations (Virginia Journal of International Law, Vol. 43, p. 249, 2002) on SSRN. Here is the abstract:
Sunday, January 04, 2004
Legal Theory Lexicon: The Rule of Law
What is the Rule of Law? The ideal of the rule of law, which can be traced back at least as far as Aristotle, is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even Marxist critics may acknowledge that observance of the ideal may curb abuses by the ruling class. What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure. Dicey's Influential Formulation Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:
(2) equality before the law of all persons and classes, including government officials; and, (3) the incorporation of constitutional law as a binding part of the ordinary law of the land.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate. c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.
b. The requirement of consistency should hold for the interpretation of all rules.
b. The meaning of the laws should be clearly defined. 5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.
b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry. c. A legal system ought to provide a process reasonably designed to ascertain the truth. d. Judges should be independent and impartial, and no person should judge her own case. 6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.
b. The legality of government action should be subject to test by independent courts of law. The Values Served by the Rule of Law What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference. Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulward against tyranny, chaos, and injustice. The Rule of Law and Bad Law One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law. Conclusion Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when its introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves. Association of American Law Schools Annual Meeting Continues Today The AALS Annual Meeting continues today in Atlanta. Today's highlights include the Jurisprudence Section program entitled "The Rationality of Rule-Following." Federalist Society: Faculty Division Conference Continues
Legal Theory Calendar
Faculty Division of the Federalist Society Continues.
Saturday, January 03, 2004
Blogging from Atlanta 04: Federalist Society: Faculty Division--International Law and Constitutional Interpretation
McGinnis John McGinnis does a marvelous and witty job of introduction the topic—focusing on the use of foreign precedents, e.g. the use of decisions from other national courts in Lawrence v. Texas. He poses a series of questions for the panel, and then introduces the first speaker. Ramsey My colleague Mike Ramsey begins. Ramsey is a extraordinarily clear and intelligent speaker; it’s always a pleasure to listen to him. He begins with an obvious point—that McGinnis had not discussed “International Law,” but rather comparative law. Ramsey then turns to the question as to what the source of authority for international or comparative materials might be. Ramsey notes two ways in which comparative materials might be used. In Lawrence, Ramsey notes that both the State of Texas and Justice Scalia made claims about the universality of laws like the sodomy statute in Texas. In that context, the use of comparative materials seems entirely appropriate. If international materials are to be used, Ramsey says, they should not be used selectively. For example, the United States recognizes rights that many other societies do not, giving New York Times v. Sullivan as an example. He suggests also that our constitutional criminal procedure jurisprudence may also be out of line with international practice. As currently conceived, Ramsey argues, the use of comparative materials is cover for results that are in fact reached on other grounds. Finally, Ramsey says that there is a real empirical problem—the Supreme Court does not seem to do original and comprehensive research when it discusses comparative practices. He argues, for example, that secondary sources, such as UN reports, may (or may not) turn out to be empirically accurate. If we were to undertake a real examination, Ramsey suggests that we are unlikely to find world consensus. When there is consensus, Ramsey suggests, it is more likely that adhering to the consensus would result in the restriction, not the expansion, of rights. Spiro Peter Spiro (Hofstra Law School) begins by asking, There are three questions: (1) “What is going on here?” Why are people worried? (2) What can be done about it? (3) Is it a good thing? What is going on? It may seem like trivial decoration, e.g. Atkins and Lawrence involve only modest use of comparative sources. Breyer in Knight was careful to say the comparative sources are not binding. But there is something quite serious going on. The use of international law to define American constitutional norms could erode a fragile national identity. The constitution has been central to American identity. Progressives are liberal nationalists, says Spiro. Liberal, yes, but also “nationalist.” Huh? The possibility that citations to comparative materials might undermine national identity seems rather far fetched to me! Can the use of international norms be resisted? No, says Spiro. International actors have levers to discipline international actors. Detainees are being released from Guantanamo in response to international pressures.
Young Ernest Young (Texas Law School) was next. He begins with the question, “Could Texas be occupied by UN troops?” He suggests that the concern with international norms dominating U.S. is silly. He proposes three questions: (1) what domestic law question are we addressing? (2) what question are the comparative sources supposed to answer? (3) how well do we understand the comparative sources? On the first question, Young suggests that structural and federalism issues are particularly insusceptible to comparative analysis. Why not? Because of structural holism. Structures come in big packages. Young nicely analyzes Prince, where there was some discussion of commandeering in the European context. Pulling out one aspect from another system, Young argues, is problematic. On individual rights issues, Young says, it may be somewhat easier to use the international materials. Indeed, the Seventh Amendment as traditionally interpreted requires that American courts look at historical English practice. What are the international materials supposed to tell us? One use is to learn about consequences. We can look to other legal systems to see how various legal rules have actually worked elsewhere. For example, what would happen if we recognized a right to die? It would be crazy to shut our eyes to how such a right has worked in Denmark. What about understanding? Young argues that we don’t have a lot of expertise. Judges and law clerks lack training. So we have reason to doubt that our courts and judges will use comparative sources in an accurate way. Caveats: Some of the arguments made against originalism are the same as arguments as made against comparative sources. There will, Young claims, be some areas where the comparative materials will be usable. Moreover, the institutional limitations of courts do not counsel against scholars looking at comparative sources. Finally, Young addresses the inevitability of international law. There are two kinds of international law people, there are two groups who take it seriously. One group focuses on trade and wants to bring back Lochner. The other group focuses on human rights and wants to bring back the Warren Court. Constitutional scholars, says Young, need to take international sources more seriously. Now that people are paying attention to comparative sources, lawyers will inevitably use these sources. Discussion Eugene Kontovorich asks the first question: “Who is the world?” We can count nations or we could look at what people in other nations think: public opinion in most nations favors the death penalty, even thought many nations have abolished the death penalty. Why just look at world elites? Michael Rappaport asks what would be the best way of trying to stop the use of international norms in constitutional interpretation. One possibility would be to start using comparative sources for conservative causes, triggering a liberal backlash? I asked the next question. There seems to be an assumption on the panel that although comparative materials are not binding authority, they are persuasive. But why are they persuasive? Whether or not comparative materials are persuasive depends on what theory of constitutional interpretation you have? The most natural fit for the relevance of comparative materials might be a theory like Dworkin’s theory, which makes questions like “What is the best conception of equality?” relevant to the interpretation of the due process clause. But on a theory like Dworkin’s comparative materials are really only a source of arguments; they are relevant only for the reasons they provide. What then motivates the use of comparative materials? I suggested that the answer might be that comparative materials appear to be more legal—they may disguise that fact that the courts are using nonlegal norms as the basis for their decisions. Young replied to my question, arguing that comparative materials are relevant to the effects that laws have. They are admissible evidence because they “wiggle the mind.” Young claimed that every theory of constitutional interpretation would make such evidence relevant.
Young replies that there are howlers; other nations do get U.S. law wrong. He also suggests that there may be a loss of identity in Europe because of the reliance on EU institutions to protect human rights. Steve Calabresi suggested that the use of comparative arguments is quite old. The Federalist Papers used comparative arguments. John Marshall used Roman and civil law analogies. Frankfurter in the incorporation debates discussed the notion of “shocking the conscience of civilized peoples.” Calabresi also suggested that much comparative law may, in fact, be favorable to conservative causes—citing the example of German constitutional law. Terry Eagleton in the New York Times Here. And a small taste:
Bertram on Otsuka Chris Bertram continues his commentary on Mike Otsuka's Libertarianism Without Inequality. Here is a taste:
Legal Theory Bookworm I thought that I would recommend three books by authors who were at the ASPLP sessions in Atlanta yesterday and today. Here are my recommendations:
Download of the Week This week the download of the week is an article by Ronald J. Allen and M. Kristin Mace (Northwestern University Law School and Independent) have posted The Self-Incrimination Clause Explained and Its Future Predicted. Here is the abstract:
Blogging from Atlanta 03: The American Society for Political and Legal Philosophy, Session Three—Toleration and Recognition
Creppell Ingrid Creppell (George Washington University) begins. Her paper is titled "Toleration, Politics and the Common World.” She begins by discussing the point of toleration; toleration is premised on conflict and directed against cruelty and violence. Toleration is sometimes seen as idealistic, and sometimes as instrumental. She argues that toleration should be an end in itself. Understanding toleration requires understanding how people see themselves as members of a common world. Restrain followed by continued common life together defines toleration. Disagreement followed by disengagement is not toleration. So what kind of relationship is “toleration?” Walzer argues that “peaceful coexistence” is toleration. What did toleration actually entail? Identity change is necessary for toleration. Parties cannot remain who they are if toleration is to develop. Historically, there was an unmixable amalgam of traditional ideas about faith, new ideas about faith, and old ideas about the magistrate. New ideas were required for toleration to emerge. A modus vivendi was not enough; an internal change was necessary. This was an educative process. Toleration as interaction inherently includes “recognition.” If toleration is a relationship, what is the basis for mutual recognition? Key ideas were the rule of law and a realm that is free from interference. One approach is based on rights; reciprocity requires that one tolerate what the other does within their rights without harming others. Contemporary identity politics reacts to this. Strict political equality is not sufficient. A more direct recognition of diverse value is required. The rights interpretation and the identity politics view are a spectrum. Toleration as recognition seeks to respond to the politicization of individual identities. Some argue that it is part of the state’s job to protect group identity. We can distinguish between activist identity claims and preservationist claims. The vitality of the group is therefore an important consideration in determining the state’s obligation. Toleration as obligation depends on facilitating an active and interactive public sphere. Toleration is not just isolated enclaves or the pursuit of private interest without public engagement. But does this view make toleration an end in itself? The ever presence of plurality entails that uniformity imposes pain on others. Toleration is an ideal, because it allows persons to flourish without forcing the choice of either the individualist rights approach or submersion into group identity. Toleration allows individuals to see themselves as part of a multiform species. Toleration therefore allows a broad perspective on the self. Citizens should be educated and habituated to view others with awareness and respect. The key is the will to mutual engagement for the sake of creating as much flourishing as possible. A theory of toleration must begin from the reality of intolerance. What sort of political realm makes toleration possible? First, normal struggles over power and resources will continue. Second, the principle of impartiality is not that all individuals will suddenly become impartial, but rather that the way in which institutions are set up and structured will orient the public realm towards impartiality. No group can mandate a particularistic political norm, but this does not leave the public square naked. She rejects seeing politics only as the other face of war. We can acknowledge intolerance, but see the political realm as the place where justice is attempted if not always achieved. Newey Glen Newey (University of Strathclyde, Glasgow) is next. He agrees that disputes over toleration must be dealt with politically. As to disagreement, he begins with the idea that disputes not epistemic but are disputes over identity. Newey argues against this idea. Identity groups are interest groups. Some identities are better than others and should not be tolerated. The merits of various interest group claims must be evaluated. Do those who tolerate and those tolerated live in a common world? Newey mentions Rawls at this point, arguing that Rawls’s views can be characterized as thinness in, thickness out. Any idea of flourishing, says Newey, threatens to smuggle in what the Rawlsian overlapping consensus leaves out. If values are thin enough to win assent, they will not be thick enough to resolve the conflict. Does Creppell give a reason for tolerance to the intolerant? Newey argues no. The liberal answer to the intolerant is “Tough!” Those who are in relationships know that they are the scene of conflict. In what sense do we share a common world with terrorist groups? One attitude towards inhabitants of a common world is hatred. Ex ante, toleration is empty. It has no trajectory in history. Some groups gain toleration and move on to equality. Other groups move the other way. Smokers have equality and are then cast out and not even tolerated. Moreover, power is a zero sum game. And the idea of partiality cannot offer a justification to those against whom power is used. Intolerance may be so potent that only coexistence aided by barriers is possible. The idea that the barriers can be thrown down is a fantasy. A brighter future for toleration is to allow toleration to become what it is. We should abandon hope of universal accommodation of difference. The merely tolerant state does not risk the fate of Troy or Jericho. Feldman Noah Feldman (New York University) is next. There is a greater interest in the history of toleration than other ideas in liberal theory. Why? Maybe because, there is some sense that ideas matter. There is a tendency to look for voices in the wilderness, voices who called for toleration in the best. There are two broad rubrics for theories of toleration. A pragmatic justification is one grounded in self interest. I tolerate you because I may need toleration in the future. A principled view is one that goes beyond self interest. The toleration act’s preamble, for example, reflects a pragmatic justification. The toleration act was very limited. For example, it is limited to freedom of religion and does not extend to a general freedom of conscience. Moreover, it is limited to Protestants. And the reason for toleration is to strengthen mutual interest in the service of the sovereign’s interest. It is not as if the rhetoric of liberty of conscience were not available at this time, and Locke availed himself of it. The toleration act did not use the principled argument. If the reason we have a principle of impartiality is to facilitate autonomous self-determination, and what they want to do is to use the state to inculcate particular beliefs, then that is a cost of impartiality. Limiting impartiality to the state is done for pragmatic reasons—having to do with the power of the state. In Baghdad, the Kurd’s want full independence. They don’t trust the state to be impartial. The Kurds want a Kurdish reason to be zone within which impartiality works. At a moral level, there is no reason why all of Iraq is the correct zone or level. There are elements that will take advantage of the liberal state. There must be some way to stand up against them. When you do, you will be engaged in political tactics. And this requires in the end that you be ready to put force behind your words. Once you are involved in the political realm, you will deploy moral arguments and believe in them. But the way you effectuate your beliefs whether you are Martin Luther King, Jr. or Lyndon Baines Johnson, is not abstract discussion. You exercise power. Ideas play a role. Why is it that we want a moral theory of toleration? Is it that it would be moral durable than a self-interest theory? There are reasons to doubt that is true. Self-interest might be more durable. Another possibility is that we would like a coherent and comprehensive theory: a self-interest theory will result in defection when defection is possible. Another possibility is that we have the instinct that toleration is not moral. Perhaps, we are worried that the self-interested reason is immoral. You buy toleration for yourself at the cost of tolerating bad and harmful views. Feldman closes with a question. What if our theory of toleration ran like this: we are behind the veil of ignorance, so we opt for toleration. Would that be a principled or self-interested justification? It sounds odd to call it self-interested. But it suggests that a self-interest justification might collapse into the principled justification. Discussion Creppell begins. She agrees with Newey that identity does not collapse into belief. On the other hand, there are beliefs that are constitutive. No amount of argument will dislodge those debates. The reason that Creppell emphasizes identity is that the early modern period was characterized by confessional wars. Beliefs were not agreed upon. They agreed to disagree. So what changed? Humans live in complex worlds. The context in which humans are called upon to be tolerant is one in which you need to give an “action orientation.” Creppell does not believe she smuggles back in substantive elements, because she would put the substance on the table. If you can develop an idea of toleration that appeals more broadly, that is worthwhile. Creppell also discusses an example in Newey’s paper. Do we tolerate the African Anglican bishops would are deeply opposed to ordination of gays within the church? Why do we want a theory of toleration? Creppell responding to Feldman says, “It is a reality about our world and a way we conceptualize the virtues of living in world of pluralism.” Rainer Forst asks a question: is toleration a Foucaultian way of containing the powers of minorities? Some strategies of toleration are really strategies of domination. What used to be called “a critical theory of toleration” needs resources to decide which uses are emanicpatory and which are repressive. Margaret Jane Radin objects to the idea that pragmatism is opposed to morality and even that self-interest is opposed to morality. Amy Gutmann says that “mere toleration” is an impoverished basis for relationships, but to Gutman, there is no coherent amoral defense of toleration. If you rely on self interest, you won’t agreement. There is a thin moral impulse to think that in order to continue a human life, you must be tolerant of disagreement. Without a moral strand, you can’t get groups off the ground. Newey says he was not suggesting that morality plays no role. People do trade moral arguments. He thinks there is an overly schematic division between considerations of morality and self-interest. Creppell suggests that all human beings who live in a norm bound system, because human beings cannot exactly replicate a norm. There always has to be flexibility that is guide by norms. But then there is a need to discuss and articulate theories about this universal human capacity. Melissa Williams asked a very nice question, which suggested we recharacterize the “pragmatic” justifications as peace-based justifications. She asks Creppell, “Where do you say tough?” Bill Galston asks whether there is a principled basis for preferring engagement over disengagement. He suggests that the flourishing of particular communities may require disengagement. It is a mistake to think that engagement is preferable. Jeremy Waldron suggests that the preamble of the act of tolerance was about removing a distraction. Worry about hegemony is a distraction from getting on with moral interaction with one another. This argument, says Waldron, has an end-means relationship, but it is a moral argument. Noah Feldman suggests that the narrowness of toleration (e.g. Catholics not tolerated) does not comport with Waldron’s moral interpretation. The broad goal is legitimation of state. Newey responds to a question from Morgan. “Tough” has to be available, but that does not mean we cannot moral arguments up to the point where we have to get tough. Creppell says she gets tough at places like bodily integrity, life, oppression that causes pain and deprives persons of autonomous thought. Blogging from Atlanta 02: The American Society for Political and Legal Philosophy, Session Two—Toleration as a Virtue
Heyd David Heyd (Hebrew University of Jerusalem) is the first speaker. His paper is titled, "Is Toleration a Political Virtue?" He begins by saying that he will answer the question in the negative. There are, he says, two ideas of toleration—one broader and historical, the other narrower and philosophical. Both ideas are necessary, he argues. The historical evolution of the idea of toleration, he promises, will support his normative analysis. He also previews three main claims: 1. Toleration is moral, not political. 2. Toleration is not a virtue but an attitude. 3. Toleration is supererogatory. Historically, toleration is rooted in ideas of charity and grace. Later it became a political obligation, e.g. in the thought of Mill. And then, toleration once again became supererogatory. This is a dialectic evolution—which exposes tensions in the idea of toleration. Normatively, the first point is that toleration is moral and not political. The analytical literature distinguishes toleration from other ideas, e.g. respect, pluralism, charity, etc. It is not clear what the distinctive features of toleration are. The main business of the liberal state is to respect rights, establish justice and equality, and the insure the rule of law. The state is not a person, and hence cannot tolerate. States only enforce the law. According to Raz, the state should not respect practices that undermine autonomy. The state should be neutral among those beliefs that do not undermine autonomy. Courts operate on the basis of the law and have no values of their own. The same applies to other political actors—they do not have their own moral beliefs and hence cannot tolerate. Now Heyd turns to Rawls, arguing that given Rawls’s view of public reason, toleration is “a bridge between the moral and the political.” [At this point Heyd makes a point with which I disagree. He argues that Rawls sees the requirement of public reason as serving the practical role of insuring stability—but as I understand Rawls, he explicitly denies this.] Heyd’s view is that toleration is a supererogatory attitude. Is toleration a virtue? We may say that “toleration is the virtue of liberal society.” In this sense, we are just saying that toleration is an excellence. But toleration is not a virtue in the Aristotelian sense. Why not? Because it lacks the characteristics of an Aristotelian virtue—it is not rooted in moral psychology. Unlike courage, for example, toleration is not a mean between two opposing vices. Toleration does not require a characteristic motive, and a tolerant act is not less “tolerant” if it is not performed with ease. Toleration requires a shift from the impersonal judgment of actions to a personal judgment of the agent. Both kinds of judgment are valid. An action may look wrong from the impersonal perspective, but from the personal perspective, the act may become tolerable because of the motive or circumstances of the actor. Heyd argues that one can shift between these two perspectives—you can assume one stance or the other, but not both simultaneously. The shift of perspective is an intentional choice, and hence not a disposition, and hence not a virtue in the strict sense. Toleration has a price. It takes an effort. It is an active attitude. So there is no natural and easy toleration. Therefore, toleration is not an Aristotelian virtue. Heyd now skips a portion of his paper for reasons of time. Toleration is a great political value. Sabl Andy Sabl (UCLA, public policy) is next. Heyd’s conclusions follow from his definition. So the question is, are these the right definitions? Are they the most useful? No, says Sabl. Heyd’s conception of politics is untrue to the actual practice of politics. And his definition of virtue is not the most useful definition of virtue. Heyd defines politics in relationship to the neutral state. Sabl suggests that politics could be defined to be exactly the non-neutral and contestable. Sabl then by way of aside says that the state is fictional and therefore has no qualities. But assuming there is a state, Sabl argues, it must act through agents. Such agents, even judges, are not strictly neutral. And toleration is relevant to these agents. Even neutral rules have unequal burdens. For example, the military rule against personal headgear falls more heavily on orthodox Jews who have a religious duty to wear a yarmulke. Toleration can’t be an Aristotelian virtue—says Sabl. But that isn’t an interesting finding. Those who write about political virtue mean something more encompassing than strict Aristotelian virtue. Galston, for example, does not use political virtue in the Aristotelian sense. Political virtues can be viewed more capaciously. Being judgmental is, in the abstract, desirable. What creates toleration is the switch to the personal perspective. Among those who are not philosophers, this is not a common view. Rather, in the polity more common attitudes are libertarianism, pluralism, rationalist solidarity, freethinking, religious free conscience, skepticism, anticlericalism, individualism in a Millian form. These are all roads to toleration. From each of these perspectives, it will be tempting to undermine some of the other tolerant perspectives. Those who affirm religious toleration, e.g., will be tempted to undermine anticlericalism. But Madisonian pluralism comes in here. No one group can count on permanent power. There is a cost to Madisonian pluralism. We are led to tolerate harms. Nonetheless toleration is worth the cost. Sabl did a really terrific job! Abrams Kathryn Abrams (Boalt Hall School of Law, University of California at Berkeley) begins by noting that she has a very different perspective than Heyd. She will address three questions: 1. Is toleration is political. 2. What is the understanding of toleration that we should endorse in an egalitarian democracy? 3. What are the difference and similarities between Abrams and Heyd’s premises? One the question whether toleration is political, Abrams agrees with Sabl in rejecting Heyd’s statist conception of the state. State actors aren’t the only actors who elaborate political meaning. Politics is shaped by private individuals. So attitudes of private individuals will shape the political realm. For example, civil rights legislation was shaped by the civil rights activists. Also, the meaning of governmental actions depends on how they are received by private citizens. Moreover, government does not play the limited role assumed by Heyd’s analysis. The New Deal/administrative state gives rise to quasipublic officials who have various occasions for tolerance. On the nature of the toleration that should be practiced, Abrams argues against the forbearance conception of toleration. Identity politics make certain practices part of personal identity. This accounts have attenuate the notion of autonomy. [I am not sure I understand Abrams here.] Citizens in egalitarian democracy may find forbearance insufficient. Being free is one thing, but visibility is another. Kwanza is tolerated in these sense that there is noninterference, but not recognized. There is a need for recognition of difference. So what is appropriate is “engaged toleration.” This is broader in scope that Heyd’s idea of toleration. Engaged toleration begins with a cognitive shift. The tolerator suspends her own moral framework. The goal is to understand the practice or belief on its own terms. Two virtues facilitate this: curiosity and humility. Engaged toleration has indeterminate outcomes. We don’t know in advance what will happen. Why does Abrams use “toleration” rather than other terms to describe her view. She has two reasons. First, conceptually, toleration is defined by its second order character, the conceptual shift and second order value of equality. Second, rhetorically, toleration is powerful. Toleration exerts obligatory force. If we can embrace a more engaged conception of toleration, this can be an important step in negotiating difference. Abrams was thoughtful and eloquent, but I had a strong feeling that she was trying to bend the concept of toleration beyond recognition. In a way, she was arguing that toleration should serve the end of equality, but I suspect that the concept of toleration that she developed is really something quite different--perhaps, equal respect and mutual acknowledgement, but not toleration! Discussion Heyd begins, thanking his commentators. Starting with Sabl, Heyd agrees that the state is not necessarily neutral, but the state is impersonal, has no feelings, and is expected to be fair. States work through agents, but this does not mean that states can be tolerant. Officials, in their official role, should not be tolerant or forgiving. They should stick to the law. When the exercise discretion, but this discretion “is constitutive of their being public officials.” On virtue, Heyd says that it is not a disposition or character trait. It is an adopted attitude. The main thesis in Sabl’s paper is that there are many different tolerations. Once you tolerate tolerations that tolerate the intolerable. This means tolerating intolerable toleration. Heyd then turns to Abrams. He concedes that individuals act politically, but that doesn’t clash with his thesis, which is about the state. He then disagrees with a comment made by Abrams, arguing that social workers should be tolerant. Toleration has become less urgent in modern society. Lastly, Heyd says, that he accepts with much of what Abrams says about “engaged toleration.” Bill Galston suggests that there is an issue whether toleration is to be understood in purely instrumental terms or whether it is of intrinsic value. If it is instrumental, what is it instrumental toward. Galston says that toleration is instrumental toward reducing conflict, coercion, and cruelty. It is a mistake to see toleration as instrumental towards equality. Don Horowitz says that the state cannot be neutral with respect to values. Because the values of the state will differ from that of some individuals, toleration is a political virtue. More than fairness is required of the state. Toleration is always in doubt. The panelists are now offered an opportunity to respond to the panelists. Heyd begins, focusing mostly on areas of agreement with several of the questions/comments from the floor. He emphasizes his claim that toleration, like forgiveness, is not a matter of duty. We do not owe forgiveness; likewise we do not owe forgiveness. Sabl responds to Galston. On the one hand, from some perspectives, e.g. Christianity, toleration may be of intrinsic value. On the other hand, from the political perspective, toleration is instrumental. On reciprocity, Sabl says that it is a mistake to assume that you can stay in power over time. Abrams responds to Galston re equality as a ground for toleration. Even if negative judgments are part of the understanding of toleration, toleration can consist in both restraint and a scrutiny of the reasons for our negative judgments. So moving away from the negative judgment is not necessarily inconsistent with toleration. Comments on the Question Whether Toleration is a Virtue The issue from this session that was most compelling was the central one—is toleration a virtue? On this, I found the positions take by the panelists to be unsatisfactory. Of course, most everyone agrees that toleration is a virtue in the very broad sense—it is a good thing. But is toleration a virtue in the narrower sense that we associate with Aristotle’s theory of the virtues. Is toleration like courage or justice (moral virtues)? Here are some thoughts on that question: Annual Meeting of the Association of American Law Schools Continues The Association of American Law Schools continues. The highlights include
Section on Law and Religion: One Nation Under God? Unity, Diversity, and Neutrality Under the Religion Clauses Joint Program of Sections on Alternative Dispute Resolution and Civil Procedure: Competing or Complementary Rule Systems? Adjudication, Arbitration and the Procedural World of the Future Section on Socio-Economics: Socio-Economics, Peace and Justice Federalist Society: Faculty Division Conference Starts Today
American Society for Political and Legal Philosophy Continues Today
Friday, January 02, 2004
Blogging from Atlanta 01: The American Society for Political and Legal Philosophy, Session One—Toleration and Liberalism
I’m blogging from this session in real time, and, as always, this report is inevitably both incomplete and partial. This is my take on the papers, and I’m sure others would have different opinions. Amy Gutman (the President of ASPLP & distinguished Princeton political theorist) begins the session by noting that this year is the 50th anniversary of Nomos--the annual volume published by the ASPLP. She turns the session over to Melissa Williams (who along with Jeremy Waldron organized the event). Melissa introduces the first speaker, Steven Smith (University of San Diego). Smith is a distinguished law and religion scholar. A tall and soft-spoken man, Smith has a presence that is simultaneously unassuming and commanding. Smith takes the podium. Smith Smith’s paper is entitled Toleration and Liberal Commitments. The main argument, Smith says, is that if we want to maintain liberal commitments, we will necessarily do so on the basis of toleration. What is toleration? Smith says he defines it in terms of four components. The first component is the assumption that there is a conditions of pluralism. The second component is to specify that there will be an agent (for Smith’s purpose, the government). The third component is that the agent operates on the basis of a system of right belief or “orthodoxy.” The orthodoxy, says Smith, is merely the beliefs on the basis of which the agent acts. The fourth component of Smith’s definition of toleration is the assertion that the agent will then categorize others into three categories: (1) orthodox—beliefs that are consistent with the orthodoxy, (2) tolerable—beliefs that are tolerable, and (3) intolerable—beliefs that are unacceptable. I’m not quite sure, but there seems to be a potential circularity problem if the four components are intended as a “definition of toleration. Smith then says that the illiberal position lacks the category of the tolerable. Liberalism includes such a category. Smith briefly discusses his claim that there is no “universal” justification for toleration. He suggests that the best such argument is based on reciprocity—citing Jürgen Habermas as an example. Smith argues that the reciprocity argument will seem obtuse to those to whom it is addressed. For example, a Christian may expect toleration from other religions but not be willing to herself tolerate those religions. Why not? Because the Christian may believe that her religion is true and the other religions are false. Reciprocity assumes that the person asked to reciprocate sees the cases as equivalent, but persons who are intolerant reject this premise. Smith then goes on to what he calls “ultraliberal” criticisms. Mere toleration is not enough—mutual respect is required. Smith notes that ultraliberalism is itself a position Now Smith moves to what he calls the illiberal critique of toleration. Smith argues that in the actual world governments must endorse some beliefs and reject others—in public education, as the basis for legislation, and so forth. If ultraliberalism requires that the state treat all beliefs as equal, then ultraliberalism simply isn’t a possible position. Indeed, Smith argues, ultraliberalism may be a disguise for toleration—affirming that all beliefs are created equal but acting as if some beliefs were more equal than others. In a liberal society where citizens are in some sense the government, ultraliberalism would seem to require that individuals as citizens not affirm any belief over others. But individuals as persons are supposed by ultraliberalism to be allowed to have their own beliefs. But how can the same individual both affirm and bracket her own beliefs? Smith then turns to descriptive sociology, noting two different takes on the current scene. On the one hand, there are those who argue that current society is characterized by a lack of deep belief—a relativism about belief. On the other hand, current society is characterized by “culture wars,” a deep commitment to belief that is inconsistent with liberal toleration. Smith then turns to the idea that there is serious culture conflict on the international level. There is no reason to believe that world history is a process of convergence on liberal values, including toleration. In conclusion, Smith argues that Christian toleration is based on the belief within Christianity that “killing one another on the basis of religion is contrary to the will of God.” Smith was very impressive, a marvelous speaker and careful thinker. Morgan Glyn Morgan (Harvard University) now takes the podium, making the conventional move that he will accentuate the negative and emphasize disagreement. Morgan emphasizes Smith’s arguments about impoverishment of soul and disagreement. Now Morgan moves to the question as to what counts as a tolerant regime and argues that Smith’s notion of toleration would count regimes such as the Northern Ireland or Quebec of the 1960s as tolerant—even though these regimes gave substantial advantages to those who adhered to the orthodoxy. (I think Morgan means advantages to Protestants & English speakers and disadvantages to Catholics and French speakers, but I am not sure.) Now Morgan turns to Mill and the question whether liberals can tolerate religious majorities. He begins his exposition by briefly rehearsing Mill’s harm principle & referring to Chapter Four of On Liberty. Mill distinguishes four kinds of acts: (1) acts that harm the fundamental interests of others; (2) acts that harm nonfundamental interests of others; (3) acts that do not harm but which should be criticized, and (4) acts that are purely self concerning. So Mill would allow citizens to play an active role in forming one another’s characters—criticizing fellow citizens for vices that do not involve harm to others. Now Morgan turns to the part of Smith’s paper where Smith urges liberals to eschew ultraliberalism and embrace toleration—to affirm their own beliefs and to reject beliefs that are inconsistent with them. There are two ways of thinking about this advice, says Morgan—as a tactic and as a matter of principle. As a tactic matter, Morgan says, liberals must be cognizant that they may well be in the minority as the political winds shift. Mill doubted that toleration was sufficient to protect liberal values, and hence argued for institutional mechanisms such as plural voting. Modern liberals do not need to rely on Mill’s antimajoritarian contrivances. Why? The noncynical answer is that modern citizens turn out to be more reasonable than Mill expected. The more cynical answer is that modern liberal democracy is, in fact, a judicial aristocracy. This is quite a dramatic argument & the audience perks up! Since the current status quo protects liberal values, liberals would get not advantage from the move from ultraliberalism to mere toleration. Tactically, liberals should support an ultraliberal polity. Moreover, Morgan argues, that the tactical perspective is not the right one. The better question is one of principle. So what argument of principle does Smith have? Morgan argues that Smith must be relying on the notion that ultraliberalism causes an impoverishment of discourse and soul. But, Morgan counters, there is no reason to believe that ultraliberalism has caused such impoverishment. More likely, says Morgan, any impoverishment is caused by modernity—by which I believe that Morgan means to refer to economic modernization, roughly what Habermas calls “the colonization of the lifeworld by the system.” Forst The next speaker is Rainer Forst (University of Frankfurt). Forst says that he wants to argue for ultraliberalism that does not rely on skepticism. In taking this position, he says, he is conceding that skepticism is not a sufficient or sound basis for ultraliberalism. Indeed, skepticism can easily be used to justify intolerance, Forst argues. Forst does not deny that toleration can be justified on religious grounds, but, he argues, this is not an appropriate basis for toleration is a liberal society. Not all toleration, says Forst, is “liberal toleration.” One can have toleration on the basis of illiberal values. Forst then turns to the religious basis for toleration: Forst argues that in fact force can produce true belief—for example, force can loosen the grip of false belief, clearing the way for noncoercive induction of true belief. Forst then turns to the reciprocity argument does require skepticism. Rather, it is based on the distinction between faith and knowledge. There can be reasonable disagreement about religious belief, but this is not equivalent to skepticism. A lack of proof is not skepticism. The best case for toleration is a combination of the epistemological argument with a premise that is like Rawls’s liberal principle of justification—the notion that the use of force should be justifiable to reasonable citizens—but Forst believes this principle is moral and not merely political. “Everyone has a right to justification”—a right to be given reasons for legally binding norms. Smith’s argument against this is that there is a deep pluralism, not just of religions and moralities, but also of justice. But Forst argues, mere pluralism is not an argument against the principle of justifiability—it is a principle that is designed to enter into and resolve disagreement. Forst now argues that his position is more consistent with the idea of democratic self government than is Smith’s position. Smith’s position allows majorities to dominate minorities, e.g. to require mandatory inculcation of their own religious or secular doctrine. Forst, on the other hand, argues that on his view, contested views (based on faith) are not an appropriate reason for coercion. Next, Forst argues, affirming this principle does not lead to impoverishment of soul and discourse, but leads instead to an enrichment of both. Forst then argues that it is dangerous to ground toleration on religious values—citing the historical example of Protestant toleration which excluded toleration of atheists and Catholics. This was a rich and (to me) persuasive talk! Discussion Williams opens the discussion period. Glen Newey asks the first question, focusing on the epistemological premise of Forst’s argument, essentially questioning Forst’s premise that the epistemology of religious beliefs is not essentially different than the epistemology of other beliefs. (I am sitting next to Larry Alexander, who disagrees.) Next, David Heyd asks a question of Smith, re whether government (as opposed to citizens) is the agent of toleration. If government is the agent of toleration, how does toleration impoverish the soul of the individual? (I must be missing something, because it seems to me that Smith’s position preempted this point by arguing that the individual in a liberal polity is, qua citizen, part of the government. Amy Gutmann asks an important question neglected by the panel: what are the limits of toleration? And another: what is the aim of toleration? Gutmann suggests that the answer to the latter question is “respect for the individual.” Gutmann wants to know whether “respect for the individual” is the aim of toleration. Smith then responds to some of the comments, especially noting his disagreement with the premise that religion is based on faith rather than reason. Gutmann presses Smith on the limits of toleration: is the limit simply set by the orthodoxy? Yes, says Smith, but not without limits. What limits, asks Gutmann. The next question is asked by William Galston to Smith. The boldest section of Smith’s paper, says Galston, was the section on equality. Smith argued that there were compelling religious justifications of equality, but not secular justifications. Galston asks what Smith’s own position on equality is and what connection it has to toleration. Jeremy Waldron asks Smith a series of questions, one about the religious foundations of liberal beliefs and the other about mutual comprehension between religious and nonreligious persons. “Do we run into a dead end?”—where reasons run out. Waldron argues that we do not run out of reasons. Noah Feldman now asks a question: “Let’s not focus so much on the state as the agent of toleration. Let’s think of the state as being acted upon by various interests. If you see it that way, then the costs of neutrality to some interests become clearer. Certain groups are unable to get the state to act as they wish.” Dennis Thompson asks a final question. He suggests that he has heard two concepts of toleration. Forst is right with respect to the state, says Thompson. It isn’t the distinction between secular and religion; some secular doctrines are unintelligible as well. But you wouldn’t want to have the same standards for democratic citizens as for the state. The state promulgates coercive laws; individual citizens do not. Forst takes up Thompson’s point re the distinction between state and citizen—essentially agreeing with Thompson. But, Forst argues, that there are situations in which informal civic intolerance can have just as much force as the law. In fact, informal social pressures can be stronger than legal pressures. So, Forst concludes, it is not clear that individuals should have a greater latitude of intolerance. Then Forst turns to Waldron: if we had no freestanding principle of justification, then we would have no superior principle. But the principle of justification has a different and superior justification that does a particular religious belief. Morgan responds to a question by Andy Sabl (which I wasn’t quick enough to blog) re Mill. Sabl had observed that Millian liberals are, after all, a tiny minority. Why should we care about what effect our idea of toleration would have on them? Morgan responds that political theory can be addressed to a partisan group, e.g. just to Millian liberals. Is that all that can be done? Morgan says no, more can be done—although he can’t do it on this occasion. Smith says that religious justifications are the best ones he has encountered. He finds nonreligious justifications to be less forthcoming. What about toleration? Is the best justification for toleration a religious justification? Maybe, says Smith. Oh, and at the very end, Jacob Levy (of Volokh Conspiracy fame) conducted the business meeting! Conclusion This was a terrific session. I look forward to more tomorrow! AALS Annual Meeting Starts Today The Annual Meeting of the Association of American Law Schools begins today, with registration only. Conference Today: American Society for Political and Legal Philosophy
Korobkin on ERISA Preemption Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted The Failed Jurisprudence of Managed Care, and How to Fix It: Reinterpreting ERISA Preemption (UCLA Law Review, Vol. 51, p. 457, 2003) on SSRN. Here is the abstract:
Baker on the Ngeze Case C. Edwin Baker (University of Pennsylvania - School of Law) has posted Genocide, Press Freedom, and the Case of Hassan Ngeze on SSRN. Here is the abstract:
Wildenthal on Tribal Sovereignty Bryan H. Wildenthal (Thomas Jefferson School of Law - General) has posted Fighting the Lone Wolf Mentality: Twenty-first Century Reflections on the Paradoxical State of American Indian Law (Tulsa Law Review, Vol. 38, p. 113, 2002) on SSRN. Here is the abstract:
Thursday, January 01, 2004
Most Hit LTB Posts of 2003
LTB's "Favorite Blogs of 2003" In alphabetical order:
Crescat Sententia--intelligent and wide ranging. Crooked Timber--a superstar lineup of real intellectuals. Election Law--the place to go to understand election law. En Banc--a wonderful group blog. How Appealing--the most amazing resource in the blogosphere. The Leiter Reports--pungent, acerbic, and smart. Punishment Theory--real theory, served straight up. The Right Coast--witty and always interesting. The Volokh Conspiracy--quality, quantity, and a very special qualia! LTB's "Favorite Post of 2003" My favorite post--from another blog--for 2003 was Political Theory and Political Philosophy, posted by Volokh Conspirator Jacob Levy on April 15. My Favorite LTB Posts of 2003 Here is a selection of my favorite posts on Legal Theory Blog from 2003:
Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Top Ten Referrers to LTB for 2003
2. How Appealing 11,694 referrals 3. Instapundit 8,346 referrals 4. Crooked Timber 2,443 referrals 5. The Corner (NRO) 2,279 referrals 6. Paperchase (Jurist) 1,469 referrals 7. Arts & Letters Daily 1217 referrals 8. Jane Galt 1081 referrals 9. Greg Goelzhauser 936 referrals 10. Balkinization 910 referrals Legal Theory Lexicon for 2003 Here is a table of contents for all of the Legal Theory Lexicon entires for 2003:
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