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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.

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Sunday, February 29, 2004
 
Legal Theory Calendar
    Monday, March 1
      At Columbia's law and economics series, Lee Anne Fennell (Texas) presents Common Interest Tragedies. This should be good!
      At NYU, Paul Chevigny presents Social Dancing and Social Association.
      At George Mason's Philosophy, Politics, & Economics series, Christopher Mantzavinos, Research Group in Collective Goods, Max Planck Institute, presents Naturalistic Hermeneutics.
      At the University of Chicago's law and philosophy series, Emily Buss, University of Chicago Law School, was tentatively schedule to present The Relationship Between Procreative and Parental Rights. Does anyone know if this is still on?
      At Loyola Marymount, Mark V. Tushnet, Georgetown, presents Social Welfare Rights and the Forms of Judicial Review.
      At Oxford's Centre for Socio-Legal Studies, Heather Douglas presents Black skins and white hearts: Assimilation policy in Australia and the 1950`s justice of Kriewaldt.
      At UCLA, Paul Zak, Claremont Graduate University, presents The Neurobiology of Trust.
      At Oxford's Moral Philosophy Seminar, Elijah Millgram (Utah) presents Reasonably Virtuous.
    Tuesday, March 2
      At the University of Chicago's political theory workshop, Luis Medina, University of Chicago, presents Who Is Afraid of Collective Intentionality?
      At Chicago's Olin series, Suzanne Scotchmer, Professor of Economics and Public Policy, University of California, Berkeley, presents Procuring Knowledge, coauthored with Stephen M. Maurer.
      At Oxford's Jurisprudence Discussion Group, Shlomit Wallerstein, presents Justifying the Right of Self Defence: The Problem of Self Preference.
      At Oxford's Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents What We Owe to Our Children.
    Wednesday, March 3
      At the University of London's famous Colloquium in Legal and Social Philosophy, Nigel Simmonds (Corpus Christi, Cambridge) presents Law as a Moral Idea.
      At Northwestern's constitutional law series, Jed Rubenfeld, Yale University Law School, presents The Structure of American Constitutional Law.
      At Oxford, Lady Justice Arden presents the Halsbury Annual Lecture: Terrorism and Human Rights.
      At Oxford's Environmental Law Discussion Group, Xabier Ezeizabarrena presents The `Prestige` shipwreck: Some limits of international environmental law.
      At NYU's legal history series, Williamjames Hoffer, History, Seton Hall, presents Leviathan Bound: Lawyers, Congress, and the Building of the U.S. State, 1858-1891.
    Thursday, March 4
      At Florida State, Bill Page, University of Florida, presents Economic Authority and the Limits of Expertise in Antitrust Cases. Contrary to my report, FSU has not forgotten about leap year. Instead, I forgot it was March!!!
      At Yale's Legal Theory Workshop, Alex Aleinikoff, Georgetown (Law) presents The Constitution And the Challenge of Transnational Law.
      At Princeton's Political Philosophy Colloquium, Jeff McMahan, Rutgers, presents Unjust War.
      At Stanford's Olin Series, Ian Ayres (Yale Law School) presents To Insure Prejudice: Racial Disparities in Taxicab Tipping
      At Berkeley's GALA series, Peter Westen, University of Michigan Law School, presents Some Common Confusions About Consent in Rape Cases.
      At the University of Texas's Constitutional & Legal Theory Colloquium, Richard Primus (University of Michigan) presents Bolling Alone.
      At Boson University, Jim Lindgren is speaking.
      At George Mason, D. Bruce Johnsen, GMU School of Law, presents The Politicization of American Savings.
      At U.C. Berkeley's philosophy series, Julia Annas, University of Arizona, presents Virtue Ethics and Social Psychology.
      At Australian National University's RSSS, Luke Russell (University of Sydney) presents Developmental Systems Theory and the Evolution of Moral Behaviour.
      At UCLA's legal theory series, Deborah Hellman is speaking, but I do not have a title.
    Friday, March 5
      At the University of San Diego, Randy Barnett presents The Presumption of Liberty. I am looking forward to this! At Michigan's law and economics series, Vicki Been presents Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?.
      At UCLA's tax policy series, David Schizer, Columbia Law School, presents Inconsistencies, Imbalances, and the Taxation of Derivative Securities: An Agenda for Reform.
      At MIT's philosophy series, Elisabeth Lloyd, Indiana University, presents How Should We Understand Bias in Scientific Explanations?.
      At Oxford's Faculty of Law, Michael Rowe presents Vertical Agreements – Freezer Exclusivity.
      At Oxford's Human Rights Discussion Group, Liora Lazarus presents Prisoners` Rights in England and Germany.
      At Oxford's Institute of European and Comparative Law, Chris Hilson presents What’s in a Right? The Relationship Between Community, Fundamental and Citizenship Rights in EU Law.
      At UCLA, Owen Jones (ASU) presents Law and Behavioral Biology.
      At Tulane's Center for Ethics and Public Affairs, Geoffrey Sayre-McCord, University of North Carolina-Chapel Hill, presents Normative Concepts.
      At Princeton's philosophy department, Michael Strevens, Stanford University, presents Why Explanations Lie: An Account of Idealization in Explanation.
      At the Society for Applied for Philosophy in London, there will be a program on International Justice: Theory and Practice with Miltos Ladikos (Lancaster) & Katrin Filkschuh (LSE) as speakers and Doris Schroeder (Central Lancashire) as chair.


 
Legal Theory Lexicon: Social Welfare Functions
    Introduction One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare functions are expressed in mathematical notation, but there is no reason to be intimidated. The basic ideas are easily grasped and the mathematical notation can be mastered in just a few minutes. This post provided an introduction to the idea of the social welfare function for law students, especially first year law students, with an interest in legal theory. Here we go!
    Background
      Normative Economics The idea of a social welfare function is part of normative economics. There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (if not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing. But this apparent agreement is at a very abstract and ambiguous level. There are many different ideas about what "utility" is.
      Cardinal and Ordinal Interpretations of Utility One key divide is between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual i prefers possible world X to possible world Y, but it doesn't tell us whether X is much better than Y or only a little better. A cardinal utility function yields a real-number value for each possible state of affairs. If we assume that utility functions yield values expressed in units of utility or utiles, then individual's utility function might score possible world P at 80 utiles and possible world Q at 120 utiles. We might represent the utility function U of individual i for P and Q as follows:
        Ui(P) = 80 Ui(Q) = 120
      The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, utilitarianism is the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability. This point about utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory.
      Measurement Problems Both cardinality and interpersonal comparability pose measurement problems for economists. Even in the base of a single individual, it is difficult to reliability measure cardinal utilities. Measurements that support interpersonal comparisons are even more difficult to justify, and cardinal interpersonal comparisons seem to require the analyst (the person making the comparison) to make a variety of controversial value judgments. Market prices won't do as a proxy for utility, for a variety of reasons including wealth effects. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal interpersonally comparable utilities.
      Pareto This is the point at which Pareto arrives on the scene. Suppose that all the information we have about individual utilities is ordinal and non-interpersonally comparable. In other words, each individual can rank order states of affairs, but we (the analysts) cannot compare the rank orderings across persons. The weak Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if everyone's ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn't get us very far, because such unanimity of preferences among all persons is rare. The strong Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if at least one person ranks P higher than Q and no one ranks Q higher than P. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions.
      The New Welfare Economics The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals i1 and i2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient.
      Weak Pareto and the Arrow Impossibility Theorem Weak Pareto plus ordinal utility information allows some social states (or possible worlds) to be ranked on the basis of everyone's preferences. A method for transforming individual utility information into such a social ranking is called a social utility function. Kenneth Arrow's famous impossibility theorem demonstrates that it is impossible to construct a social utility function that can transform individual ordinal rankings into a social ranking in cases not covered by weak Pareto, if certain plausible assumptions are made. Arrow's theorem has spurred two lines of development in welfare economics. One line of development relaxes various assumptions that Arrow made; for example, we might relax Arrow's assumption that the social ranking must be transitive (if X is preferred to Y and Y is preferred to Z, then X must be preferred to Z). The other line of development considers the possibility of allowing information other than individual, noncomparable ordinal utilities. It is this second line of development that is relevant to the use of social welfare functions in contemporary law and economics.
    Social Welfare Functions Suppose that we allow full interpersonal comparability and cardinal utility information. This is sufficient to support what are called Bergson-Samuelson utility functions, which have the form:
      W(x) = F (U1(x), U2(x), . . . UN(x))
    Where
      W(x) represents a real number social utility value for some state of affairs (or possible world) X,
      F is some increasing function that yields a real number,
      U1(x) is a cardinal, interpersonally comparable utility value yielded by some procedure for individual 1 for state of affairs X, and
      N is the total number of individuals.
    Bergson-Samuelson social welfare functions are named after Paul Samuelson and Avram Bergson.
    What Are the Plausible Social Welfare Functions? There are a variety of different possible functions that can be substituted for F. Here are some of the most important possibilities:
      Classical-utilitarian SWF--We could substitute summation for F, and simply add the individual utility values; this is sometimes called a Benthamite or classical-utilitarian social welfare function famously associated with Jeremy Bentham. The classical utility social welfare function can be represented as follows:
        W(x)={U1(x) + U2(x) + U(3(x) . . . Un(x)}
      Average-utilitarian SWF--The classical SWF adds the utilities. This raises some very interesting issues when the different states of the world (x or y) have different population sizes. When deciding whether to add additional individuals, the classical-utilitarian SWF says more is better until we reach the point where adding more actually reduces the overall level of utility. One way to avoid this implication is use the average level of utility instead of the sum, as in the following formula:
        W(s){[U1(x) + U2(x) + U(3(x) . . . Un(x)]/n}
      In other words, we divide the sum of utilities by the number of individuals!
      Bernoulli-Nash SWF--In the alternative, we could substitute the product function (¡Ç) and multiply individual utilities. This is sometimes called a Bernoulli-Nash social welfare function, which can be represented as follows:
        W(x)={U1(x) * U2(x) * U(3(x) . . . Un(x)}
      Rather than adding individual utilities, we multiply them! And yes, the "Nash" in Bernoulli-Nash is John Nash of "A Beautiful Mind" fame.
    What About the Problem of Interpersonal Comparison? Social welfare functions are much discussed in legal theory these days. One of the reasons for the contemporary debate over social welfare functions is that this approach has been championed by Louis Kaplow and Steven Shavell (both of the Harvard Law School). Their book, Welfare versus Fairness, has put the welfarist approach to normative economics "front and center."
    One of the interesting theoretical questons about SWFs concerns the problem of interpersonal comparison. How do we get the values to plug into U1(x), U2(x), and so forth. That is, how do we compare up with a way of putting my utility and your utility on the same scale. As I understand the state of play, this is not a topic on which economists agree. Some economists believe that there is no objective way of producing interpersonally comparable cardinal utility values. But some economists believe that a third-party (the legal analyst or the economist) can do the job of assigning values to individual utilities.
    Conclusion We've barely begun to scratch the surface of the many interesting theoretical issues that attend the use of social welfare functions in legal theory. Some of those issues were explored in a prior Legal Theory Lexicon entry on Balancing Tests. Even if you have absolutely no background in economics, there is no reason to shy away from the debates about social welfare functions. The notation, although at first intimidating, is actually very simple. The foundational ideas, although sometimes articulated in the jargon of economic theory, really go to fundamental questions in moral theory. I hope this post has given you the tools to begin to discuss these ideas!
For a complete collection of the Legal Theory Lexicon posts, surf here.


Saturday, February 28, 2004
 
Legal Theory Bookworm Today I've been dipping into Alan Wertheimer's Consent to Sexual Relations, a tiltle in the fine series, "Cambridge Studies in Philosophy and Law," edited by Gerald Postema. One of the really wonderful things about this book is its use of hypotheticals, complete with a very useful "Appendix," which lays them all out. Here is a description of the book:
    When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that ‘no’ means ‘no’. This book suggests that the difficult question is whether ‘yes’ means ‘yes’.
If you are interested in the law of rape or the theory of consent, you will want this book!


 
Download of the Week This week, the Download of the Week is Ex Ante versus Ex Post Justifications for Intellectual Property by Mark Lemley. Lemley's work has had a huge impact on American intellectual propertylaw, and this paper is an important statement on the foundations of IP theory. Here is the abstract:
    The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post - that IP will be "managed" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as "property" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn’t just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be "efficiently managed" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do. In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored.
Download it while its hot!
And with a certain immodesty, I should also like to recommend my own paper, Procedural Justice, which articulates and defends a general theory of fairness for civil and administrative adjudication.


Friday, February 27, 2004
 
Brighouse on Teaching Political Philisophy "Right" Check out this post by Harry Brighouse:
    Do we have an obligation to cover conceptual space and/or the space of public discourse in a course in a philosophy department? Teachers of metaphysics and epistemology are bound by neither obligation, and a good thing too. It?s a fair complaint that we teach Nozick. I stopped doing it when I found my impatience with him getting the better of me. ASU has always struck me as a bit slapdash ? and the best philosophy in it has little to do with his defence of his political philosophy. Fortunately, there are much more powerful and philosophically thorough defenses of libertarianism than Nozick?s, and my own preference has been to use them (Loren Lomasky?s far superior and unjustly neglected Persons Rights and the Moral Community, for example). I also like to use Milton Friedman?s brilliant little book Capitalism and Freedom, a defense of classical liberalism which occasionally invokes more conservative ideas than most libertarians countenance. Though it, too, makes numerous philosophical errors it is easier to be patient because it has so much else of value in it and because Friedman, who was not the most brilliant philosopher of his generation, does not seem so culpable for philosophical carelessness.


 
Friday Workshops


 
Kaplan on Economic Inequality Richard L. Kaplan (University of Illinois at Urbana-Champaign College) has posted Economic Inequality and the Role of Law (Michigan Law Review, Vol. 101, No. 6, May 2003) on SSRN. Here is the abstract:
    In Wealth and Democracy, famed commentator and analyst Kevin Phillips provides a political history of American economic life with a specific focus on the wealthy. He interweaves the development of American technology with the rise and fall of economic fortunes into a compelling tale with significant implications for the formulation of public policy and the laws that implement such policy. This review begins by examining the major sources of economic inequality and how they have increased the gap between rich and poor in America. The wealth of historical data in the book is considered with particular attention to the past quarter of a century. During this period, after all, economic inequality in the United States grew beyond all previous measures. Some of the key themes developed in this section include: (1) the corrupting effect of concentrated economic power on the political process, (2) the impact of vast wealth on the formulation of public policy, and (3) the increasingly precarious financial situation of middle-class families. The review then explores the role that legal regimes can play in addressing economic inequality and how Phillips systematically understated their importance - specifically, taxation, health care, and Social Security. With respect to taxation, the review analyzes three major provisions of the 2001 Tax Act: repeal of the estate tax, augmented contributions to tax-favored retirement accounts, and creation of tax-exempt college savings plans. Regarding health care, the review examines first the increasing phenomenon of workers without health insurance and then the largely invisible but painfully significant problem of long-term care. Finally, this section analyzes how Social Security consciously ameliorates economic inequality and how this feature will be discarded under most privatization proposals. The review concludes that Kevin Phillips has written an important book that should give serious pause to lawmakers involved in a wide range of critical issues facing America today. The increasing economic inequality of recent decades poses a significant challenge to the U.S. legal system and its democratic processes. As Phillips contends, the status quo is unsustainable and plutocracy is where we are headed, if we are not already there.


 
Schizer on Section 1091 David Schizer (Columbia Law School) has uploaded Scrubbing the Wash Sale Rules to SSRN. Here is the abstract:
    Loss limitations are an ugly but inevitable feature of any realization-based income tax. In essence, because the system mismeasures gains, it also has to mismeasure losses. Otherwise, the timing option inherent in the realization rule would allow taxpayers to defer gains (thereby reducing the tax's present value) while accelerating losses (thereby preserving the deduction's present value). The wash sale regime of Section 1091 is one of our system's most important brakes on the timing option. Yet it is only a slight exaggeration to say that compliance with the regime is voluntary for very wealthy taxpayers - or, at least, for those who are willing to take aggressive positions. In response, this Article flags seven glitches in the regime that, at least arguably, permit perfect end runs. As used here, this phrase refers to strategies in which taxpayers can deduct losses while effecting virtually no change in their economic position. The essential point is that, if we are going to have a wash sale regime, these end runs should not be allowed. This Article also takes a more controversial position: Losses should still be deferred - even when taxpayers make meaningful changes in their economic position - as long as they keep material elements of their old return. The policy goal here is to ensure that, on average, taxpayers expect losses to be deferred as long as gains. This Article proposes concrete modifications in the regime to implement this goal, while also offering a caveat: The case for a strong wash sale regime is less strong if the regime can never be tough enough to stop loss harvesting. If so, other constraints on the timing option may be preferable, including accelerated timing for gains or a broader capital loss regime.


 
Ho & Imai on Ballot Order Effects Daniel E. Ho and Kosuke Imai (Yale University - Law School and Princeton University - Department of Politics) have uploaded Shaken, Not Stirred: Evidence on Ballot Order Effects from the California Alphabet Lottery, 1978 - 2002 to SSRN. Here is the abstract:
    We analyze a natural experiment to answer the longstanding question of whether the name order of candidates on ballots affects election outcomes. Since 1975, California law has mandated randomizing the ballot order with a lottery, where alphabet letters would be shaken vigorously and selected from a container. Previous studies, relying overwhelmingly on non-randomized data, have yielded conflicting results about whether ballot order effects even exist. Using improved statistical methods, our analysis of statewide elections from 1978 to 2002 reveals that in general elections ballot order has a significant impact only on minor party candidates and candidates for nonpartisan offices. In primaries, however, being listed first benefits everyone. In fact, ballot order might have changed the winner in roughly nine percent of all primary races examined. These results are largely consistent with a theory of partisan cuing. We propose that all electoral jurisdictions randomize ballot order to minimize ballot effects.


 
Law Review Submission Dates: Updated as of February 27, 2004 Every Spring, new law review boards take the helm and begin considering articles for the next academic year's volume. This post, which will be continually updated and moved to the top of blog, reports on the key dates for submission to the top journals. Here is the information organized by current status for reviews that have provided information on board transitions:
  • New Board Reviewing Articles Now--Yale Law Journal, Harvard Law Review, Stanford Law Review, Michigan Law Review, Virginia Law Review, Georgetown Law Journal, Duke Law Journal, Notre Dame Law Review, William and Mary Law Review, William Mitchell Law Review
  • New Board Begins Operating in the Last Week of February--California Law Review, Vanderbilt Law Review
  • New Board Begins Operating in the First Week of March--Columbia Law Review, Texas Law Review, Geroge Washington Law Review, Hastings Law Journal, Emory Law Journal, Ohio State Law Journal, North Carolina Law Review, Georgia Law Review
  • New Board Begins Operating later in March--Cornell Law Review, Fordham Law Review, Minnesota Law Review, Iowa Law Review, Washington University Law Quarterly, Arizona State Law Journal, Tulane Law Review
  • New Board Not Selected Until After March--University of Chicago Law Review, Washington & Lee Law Review (old board reviewing for next year now)
And here is the detailed information on each journal:
  • Yale Law Journal--the incoming Editor-in-Chief reports that the new board is considering articles for next year's volume.
  • Harvard Law Review--an editor reports that the new articles office is up and running.
  • University of Chicago Law Review--the Editor-in-Chief reports that the Board turns over in mid-April of this year -- about a month after the boards of most other law reviews. The new articles editors begin considering submissions immediately thereafter. Chicago strongly encourages that articles be submitted whenever they are ready, even if that is before mid-April.
  • Stanford Law Review--the Senior Articles Editor reports that the new board is in place and accepting manuscripts for next year.
  • Columbia Law Review--the Executive Articles Editor reports that the incoming Articles Committee will begin reviewing submissions on March 1, 2004.
  • California Law Review--the Managing Editor reports that the new board will begin considering articles for Volume 93 this week (around February 27).
  • Michigan Law Review--the Articles Editor reports that the new board has been elected, they are now reading articles for the new volume, and the official transition will occur on March 10.
  • Texas Law Review--the outgoing Edition-in-Chief reports that the the new editorial board of the Texas Law Review will begin to review articles next week (e.g. about beginning of March) and the Chief Articles Editor expects that review will start on or about March 1.
  • Virginia Law Review--the incoming Articles Editor reports that the new board was elected on Friday, February 13, is now accepting submissions and will begin reviewing them forthwith.
  • Georgetown Law Journal--the Senior Articles Editor reports that the new board is in place and has been considering articles since February 13th.
  • Cornell Law Review--the website reports that the new board will begin making decisions in mid-March.
  • Northwestern University Law Review--the website reports that submissions for the Fall and Winter issues will be accepted beginning in February.
  • Duke Law Journal--the outgoing Editor-in-Chief reports that the new board is in place and submissions are currently being considered for the new volume. The incoming Managing editor reports that review began on February 20.
  • Vanderbilt Law Review--the website reports that submissions will be accepted starting on March 1.
  • Iowa Law Review--the editors report that the new board will begin reviewing submissions on March 15.
  • Minnesota Law Review--a faculty member reports that the new board will be elected on Saturday and begin reviewing manuscripts in early March.
  • George Washington Law Review--the Editor-in-Chief reports that the new editorial board is selected on February 20 and the incoming Articles Committee will begin reviewing submissions on March 1, 2004 for Volume 73, the first issue of which will print in November 2004. The old board does not exit until April 1.
  • University of Illinois Law Review--the website reports that articles will be accepted starting January 20. I have been unable to confirm the board transition date.
  • Fordham Law Review--the Editor-in-Chief reports that the new board will begin considering submissions for next year at the end of March.
  • Hastings Law Journal--the Editor-in-Chief reports that Hastings is still considering articles for the current volume. The new board will be in place by first week in March and will begin considering articles for the new volume in the second week of March.
  • Washington University Law Quarterly--the incoming Executive Articles Editor reports that they will begin reviewing submissions in mid-March.
  • Emory Law Journal--the editors report that the new board will begin reviewing articles on March 1.
  • Ohio State Law Journal--the incoming Editor-in-Chief writes they will begin accepting submissions for its Fall 2004/Spring 2005 issues on March 1, 2004.
  • North Carolina Law Review--the website indicates that submissions will be considered for next year's volume starting on March 1.
  • Notre Dame Law Review--the incoming Executive Editor reports that the new Board is in place and reviewing manuscripts for next year.
  • Arizona State Law Journal--the website reports that submissions for the next volume will be accepted sometime in March.
  • Tulane Law Review--the website reports that submissions of the next volume will be considered beginning at the end of March.
  • William & Mary Law Review--the editors report that the new board is in place and considering submissions for next year's volume.
  • Washington & Lee Law Review--the editors report that the new board is selected in April, but that articles are reviewed continuously.
  • Georgia Law Review--the outgoing Executive Editor reports that the new board will begin reviewing articles on March 1.
  • William Mitchell Law Review--the Editor-in-Chief reports that the new board has been selected and is considering articles for next year's volume.
If you would like me to list information for your journal, please email the details (including the date the new articles editors will begin work) to lsolum@sandiego.edu.


Thursday, February 26, 2004
 
Blogging from the Virginia Symposium on Brown v. Board Check out Pallavi Guniganti's blogging on Half the Sins of Mankind from the University of Virginia Law School's symposium last weekend on Brown v. Board of Education:


 
I'm an 8(a)
    YOU ARE RULE 8(a)! You are Rule 8, the most laid back of all the Federal Rules of Civil Procedure. While your forefather in the Federal Rules may have been a stickler for details and particularity, you have clearly rebelled by being pleasant and easy-going. Rule 8 only requires that a plaintiff provide a short and plain statement of a claim on which a court can grant relief. While there is much to be lauded in your approach, your good nature sometimes gets you in trouble, and you often have to rely on your good friend, Rule 56, to bail you out. Which Federal Rule of Civil Procedure Are You?
    brought to you by Quizilla
Who knew?


 
Procedural Justice I've just fiished a new paper entitled Procedural Justice. Here is the abstract:
    Procedural Justice offers a theory of procedural fairness for civil dispute resolution. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? This Article responds to the challenge posed by the hard question of procedural justice. That theory is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. These two sections set the stage for the more difficult work of constructing a theory of procedural legitimacy. That work begins in Part IV, Views of Procedural Justice, which investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first theory, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second theory, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third theory, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice.
Comments are most welcome! Download it while its hot!!


 
Thursday Workshops
    At the University of Pennsylvania's law and philosophy series, there is a very special treat. Harry Frankfurt is giving a two part lecture. Part one is entitled Taking Ourselves Seriously and part two is Getting It Right.
    At UCLA's legal history series, Dan Ernst, Georgetown, presents The Recruitment of New Deal Lawyers: State, Party and Profession.
    At UCLA's tax policy series, John Matsusaka, USC Business School, presents Fiscal Policy & the Initiative Process.
    At Boston University Law School either Bob Bone or Rusty Park is speaking. ???
    At George Mason, Todd Zwycki (FTC) presents An Economic Analysis of the Consumer Bankruptcy Crisis.
    At Oxford's Public International Law Discussion Group, Anthony Aust presents Iraq: the Reckoning.
    At Australian National University's RSSS, Jeanne Peijnenburg (University of Groningen) presents Regret and Retrocausality.
    At Princeton's Public Law Colloquium, Helena Silverstein, Lafayette College, presents Law Bypassed: Constitutional Rights and State Mandated Parental Consent for Abortion.
    At the University of Hertfordshire Centre for Normativity and Narrative, Brendan Larvor (Hertfordshire)presents Particularism in Ethics and the Exact Sciences.
    At Royal Holloway College, University of London, Professor Richard Sorabji, Wolfson College, Oxford delivers the Dabis Memorial Lecture, entitled The Self in Ancient Thought.


 
An Important Paper by Mark Lemley Mark A. Lemley (University of California, Berkeley - School of Law (Boalt Hall)) has posted Ex Ante versus Ex Post Justifications for Intellectual Property on SSRN. Here is the abstract:
    The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post - that IP will be "managed" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as "property" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn’t just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be "efficiently managed" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do. In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored.


 
Ben-Shahar on Deliberately Incomplete Contracts Omri Ben-Shahar (University of Michigan Law School) has posted 'Agreeing to Disagree': Filling Gaps in Deliberately Incomplete Contracts. Here is the abstract:
    This Article develops a new standard for gap filling in incomplete contracts. It focuses on an important class of situations in which parties leave their agreement deliberately incomplete, with the intent to further negotiate and resolve the remaining issues. In these situations, neither the traditional no-enforcement result nor the usual gap filling approaches accord with the parties' partial consent. Instead, the Article develops the concept of pro-defendant gap-fillers, under which each party is granted an option to enforce the transaction supplemented with terms most favorable (within reason) to the other party. A deliberately incomplete contract with pro-defendant gap fillers transforms into two complete contracts, each favorable to a different party, with each party entitled to enforce only the contract favorable to her opponent. Under this approach, partial consent gives rise to a correspondingly intermediate burden of liability. The Article demonstrates that this regime promotes the interests of negotiating parties who enter agreements-to-agree. It also identifies various doctrinal practices that already incorporate the pro-defendant gap filling logic.


 
Two by Ferrell Allen Ferrell (Harvard Law School) has two new papers on SSRN:
    Why Continental European Takeover Law Matters:
      This paper addresses the following question in the context of considering the recommendations of the High Level Group of Company Law Experts on Takeover Bids: Why does Continental European takeover law matter given the concentrated ownership structure of most Continental European firms? In answering this question, the paper discusses the interaction between takeover rules and ownership structure and the possible lessons that can be drawn from the British and American experience with takeover regulation. While a ban on the use of defensive tactics without shareholder approval (possibly in conjunction with a mandatory bid rule) can theoretically have the effect of either encouraging or discouraging the adoption of dispersed-ownership structures, the empirical evidence suggests that the former would be the more likely result. Moreover, the British and American experience highlights the importance of adopting a takeover regime earlier rather than later in time.
    Mandated Disclosure and Stock Returns: Evidence from the Over-the-Counter Market
      Mandated disclosure requirements placed on publicly-traded firms constitute the core of U.S. securities regulation. Despite their importance, few empirical studies have been done on the impact of mandated disclosure requirements on the capital markets. Using a unique database created for this study, this paper examines the impact the 1964 imposition of mandated disclosure requirements had on the over-the-counter market in terms of stock returns, volatility and stock price synchronicity. Despite this being the only fundamental change in the scope of mandated disclosure in the U.S. in the twentieth century - with the exception of the initial securities acts of the 1930s - this regulatory change has never been examined. This study finds that there was a dramatic reduction in the volatility of OTC stock returns associated with the imposition of mandated disclosure. At the same time, there was no change stock price synchronicity associated with mandated disclosure. The evidence on stock returns is inconclusive but suggestive of a positive abnormal associated with mandated disclosure.


 
McDaniel on Trade Agreements & Income Taxation Paul McDaniel (Boston College - Law School) has posted Trade Agreements and Income Taxation: Interactions, Conflicts, and Resolutions (Tax Law Review, Forthcoming) on SSRN. Here is the abstract:
    This paper builds on prior short pieces I have done on trade and taxation. I drew three conclusions from that prior work: 1. A normative income tax structure and free trade principles do not conflict with each other. 2. The tax provisions that are part of a normative tax structure should be outside the scope of trade agreements and procedures. 3. Subsidies run through the tax system (tax expenditures) should be subject to scrutiny under trade agreements just as are direct subsidies. A country cannot insulate a subsidy from challenge under trade agreements simply by placing it in a tax system. In Part I of the paper, I first review the history of the Domestic International Sales Corporation (DISC) provisions. commencing with the challenge by the European Communities (EC) and Canada under the then-existing GATT procedure. The DISC regime was found to violate U.S. obligations under GATT. Congress responded by enacting the Foreign Sales Corporation (FSC) system. The EC challenged this program and a WTO Dispute Panel found that the FSC regime violated U.S. WTO obligations. The decision was affirmed by a WTO Appellate Body. Congress tried again by enacting the Extraterritorial Income Exclusion Act (ETI) but this system too was stricken down by a WTO Dispute Panel and an Appellate Body affirmed the decision. I examine the arguments put forth by the EC and the U.S. in both the FSC and ETI cases as well as the basis for the decisions by the WTO bodies. I briefly examine the standard by which the WTO body approved some $4 billion in countermeasures against the U.S. Those sanctions are scheduled to go into effect March 1, 2004 if the U.S. has not terminated the ETI regime. I then turn to an assessment of the FSC and ETI decisions from three perspectives: legal/structural, economic, and sovereignty/political. From the legal/structural perspective, I conclude that the WTO decisions were correct under applicable WTO provisions and focus particularly on the methodology employed to determine whether a particular regime constitutes a "subsidy" or not. Assessing the decisions from an economic perspective, I begin by sketching briefly the case for free trade and then examine whether the FSC and ETI regimes likely increased or decreased both U.S. and global welfare. Economic theory suggests that the welfare of each was decreased by the subsidies. Unfortunately, there is little empirical work available to test the theory. What little there is suggests that U.S. exports may have increased as a result of the subsidies, but the studies do not address whether this increase was achieved at an acceptable revenue cost or the welfare effects of the subsidies. I conclude this part of the paper by noting the impact of currency exchange rates on the effectiveness of the subsidies. The final part of the paper examines the WTO decisions from what I call a sovereignty/political perspective. I first test out whether the U.S. sacrifices an acceptable level of sovereignty on entering into the WTO agreements in the first place and whether the WTO decisions represent a further and unacceptable invasion of U.S. sovereignty. Building on work by Professor Michael Schaefer, I conclude that the U.S. has sufficient built-in processes to protect it from intrusive invasion of its sovereignty by virtue of the WTO agreement and FSC/ETI decisions. From a political perspective, I assess the arguments that the FSC/ETI provisions are needed to put U.S. multinationals on a competitive level with multinationals from exemption countries. I show that this argument has no economic or factual basis and should be rejected.


 
Thomas on Civil Rights Remedies Tracy A. Thomas (University of Akron - School of Law) has posted The Prophylactic Remedy (Buffalo Law Review, Vol. 52, Spring 2004) on SSRN. Here is the abstract:
    This article is the first complete normative and descriptive treatment of the modern civil rights remedy - the prophylactic injunction. The prophylactic remedy is a public law injunction that uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong. The United States Supreme Court has utilized prophylactic remedies for over forty years, and has used the prophylactic paradigm to shape its jurisprudence on Section 5 of the Fourteenth Amendment. Prophylaxis, however, remains an ambiguous concept in the eyes of most scholars and lawyers. This article attempts to fill the academic void by exploring the doctrinal and theoretical parameters of the prophylactic remedy. By so doing, it attempts to establish a framework for the use of prophylactic remedies by the courts and to deflate the criticism of certain skeptics who mischaracterize such remedies as overly broad misuse of judicial power. Ultimately, the article has two goals. The primary purpose of the article is to provide an analytical framework that will enable judges, lawyers, and scholars to understand the contours of prophylactic relief. Accordingly, the article identifies trans-substantive remedial principles of prophylactic relief apparent in modern Supreme Court precedent regarding the appropriate character, scope, and use of prophylactic relief. The second and more ambitious goal of the paper is to dispel the myth that prophylactic relief is an overly broad remedy arising from the judge's personal political activism. A close analysis of the Supreme Court's decisions demonstrate quite the contrary - that prophylactic remedies are based upon solid doctrinal and theoretical principles legitimizing its continued use as a viable and necessary remedy.


 
Cheng on Changing Scientific Evidence Edward K. Cheng (Brooklyn Law School) has posted Changing Scientific Evidence (Minnesota Law Review, Vol. 88, No. 315, 2003) on SSRN. Here is the abstract:
    A number of high-profile toxic tort cases, such as silicone breast implants, have followed a familiar and disturbing path: Early studies suggest a link between a suspected substance and a particular illness. Based on these initial studies, lawsuits are brought and juries award large judgments to various plaintiffs. Then later, more comprehensive studies find no evidence of a causal link. How should the legal system cope with this problem in which new scientific evidence calls into question previous findings of liability? These erroneous judgments seriously harm social welfare and legitimacy. Beneficial products are needlessly discontinued or are made more expensive, and public confidence is undermined by decisions entirely at odds with science. This Article observes that in a subset of cases, the legal system's traditional emphasis on speedy dispute resolution and finality is brought into direct conflict with science's culture of incremental study and constant reevaluation. The resulting timing mismatch is at the root of the "changing scientific evidence" problem. To alleviate it, the Article suggests the use of two alternative procedural devices. Courts could stay proceedings for a fixed period of time when additional confirmatory studies were anticipated. Alternatively, courts could address changing scientific evidence after final judgment through an expansion of post-judgment relief. Either of these options would enable courts to be more accommodating to the scientific process, while simultaneously spurring scientists to better serve legal inquiry.


Wednesday, February 25, 2004
 
Infothought on Constitutionalizing Fair Use Courtesy of Donna Wentworth, whose judgment seems always reliable, this fine post from Infothought's Seth Finkelstein on the DMCA, fair use, Eldred, and the recent opinion in 321 Studios v MGM.


 
Volokh on Davey v. Locke Link. Taste:
    If the state of Washington decided to give special benefits for students of devotional theology (a $3000 scholarship only to people who are studying materials that are "devotional in nature or designed to induce religious faith"), that would be a sure violation of the Establishment Clause, because it would be discrimination in favor of religion. But when the state does the exact opposite, by specially excluding such students from a generally applicable program -- when it discriminates against religion -- that's completely constitutional, even though the Establishment Clause itself has long been described as barring disapproval as well as endorsement of religion, inhibition as well as promotion of religion, hostility towards as well as favoritism towards religion. The result, I think, genuinely is the discrimination against religion that people have complained about (sometimes wrongly, but here rightly) -- not just exclusion of either pro-religion or anti-religion messages from the government's own speech, but a regime where the government may discriminate against private religious institutions and programs, but may not discriminate in their favor. Now this is a wrong that is indeed worth amending the Constitution over.


 
Simons on Dripps on the Fundamental Attribution Error and Criminal Law Ken Simons has a post on a recent article by Don Dripps. The topic is the so-called "fundamental attribution error." More some thoughts of mine on the general topic, see Do Humans Have Character Traits?


 
Duff on Justification and Excuse The very learned Antony Duff has more to say about justification and excuse over at Punishment Theory.


 
Muller's Question Unintended consequences are the focus of a post by Eric Muller that asks this question:
    Here's the question: if you are a supporter of gay rights, was Lawrence a good thing? If we knew that in a world without Lawrence, the political process (as influenced by continuing slow societal development never impacted by a Supreme Court decision) would eventually come to accept gay marriage in many states, would we be better off in that world, or in a world in which the Constitution forbids states from criminalizing homosexual sex but also bans gay marriage?


 
What Students Want from Law Professors Good posts on Stay of Execution and Jeremey's Weblog. Link via Froomkin--whose blog is terrific!


 
Felten on P2P Privacy Ed Felten writes:
    New P2P technologies are more effectively shielding the identities and net addresses of their users, according to a John Borland story at news.com. This is not surprising given that the past generation of P2P systems did essentially nothing to hide their users' addresses. Agents of the RIAA exploited that lack of protection to identify people uploading copyrighted music, leading to the wave of lawsuits against P2P users.


 
Balkin on the FMA & the Other Thirteenth Amendment Check out Balkin here. Here is the text of the "other" Thirteenth Amendment:
    No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.


 
Tillman on Noncontemporaneous Lawmaking Seth Tillman has posted Noncontemporaneous Lawmaking: Can the 108th Senate Enact a Bill Passed by the 107th House? on SSRN. Here is the abstract:
    The text of the Constitution nowhere expressly demands contemporaneous action (i.e., during the life of a single two year session) by the two houses of Congress as a precondition for valid lawmaking. No on-point federal decision mandates contemporaneity - nor do the precedents of the two Houses (i.e., the reported decisions of the Speaker, the Clerk, the Secretary, the parliamentarians, etc.). Is this a power Congress has chosen never to exercise? Or, a power that Congress does not possess? Can we be sure that the federal courts would intervene to block such a practice, particularly if the bill were signed by a Speaker and a Vice-President - albeit, perhaps not in office concurrently? This piece is presented in a comic voice: a memorandum offering confidential legal advice to Speaker Hastert from an embittered politically spiteful Republican House counsel.


 
Gillette on the Modern Law Merchant Clayton P. Gillette (New York University Law School) has posted The Law Merchant in the Modern Age: Institutional Design and International Usages Under the CISG (Chicago Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
    Recent scholarship in commercial law has considered whether ambiguities of contractual language and contractual gaps are best resolved through a "plain meaning" rule or a strategy that incorporates trade custom. The debate is difficult to resolve by asking which strategy minimizes total contracting costs, because different strategies reduce different elements of those costs. In this brief essay, written for a conference on The Empirical and Theoretical Underpinnings of the Law Merchant, I suggest a taxonomy of the conditions under which trade usages would be sufficiently precise, observable, and verifiable as to warrant their incorporation. I apply the conclusions from that analysis to an area that doctrinal law, counterintuitively, implies is appropriate for the application of the incorporation strategy - international sales transactions governed by the UN Convention on Contracts for the International Sale of Goods, or CISG. The complexity of international sales and diversity of transactors suggests that this is a peculiar arena for the incorporation strategy. Nevertheless, I conclude that the conditions for adoption of trade usages under the CISG are surprisingly ripe, and, as currently applied by courts, the incorporation strategy does not generate the substantial costs attributed to it. I suggest that this occurs, in large part, because adjudicators have tended to entertain claims of custom only where the alleged trade usage conditions on variables that are both observable and verifiable.


 
Orbach on the Durapolist Puzzle Barak Y. Orbach (The University of Michigan Law School) has uploaded The Durapolist Puzzle: Monopoly Power in Durable-Goods Market (Yale Journal on Regulation, Vol. 21, No. 1, 2004) to SSRN. Here is the abstract:
    This Article studies the durapolist, the durable-goods monopolist. Durapolists have long argued that, unlike perishable-goods monopolists, they face difficulties in exercising market power despite their monopolistic position. During the past thirty years, economists have extensively studied the individual arguments durapolists deploy regarding their inability to exert market power. While economists have confirmed some of these arguments, a general framework for analyzing durapolists as a distinct group of monopolists has not emerged. This Article offers such a framework. It first presents the problems of durapolists in exercising market power and explains how courts have treated these problems. It then analyzes the strategies durapolists have devised to overcome difficulties in acquiring and maintaining monopoly power and the legal implications of these strategies. This Article's major contributions are (a) expanding the conceptual scope of the durapolist problem, (b) presenting the durapolist problem as an explanation for many common business practices employed by durapolists, and (c) analyzing the legal implications of strategies employed to overcome the durapolist problem.


 
Blumenthal on Law & the Emotions Jeremy A. Blumenthal (Seton Hall University - School of Law) has uploaded Law and the Emotions: The Problems of Affective Forecasting to SSRN. Here is the abstract:
    Legal scholarship on behavioralism and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of the emotions in legal discourse. Discussion turns on the "appropriateness" of various emotions for the substantive law, and on attempts to model the place of the emotions in the law. Implicit in some of these theories, however - and explicit in others - is the assumption that emotions are "predictable," "manageable," and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates individuals' inability to accurately predict future emotional states, both their own and others'. Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well. In this Article I review the psychological data demonstrating inaccuracies in affective forecasting, and spin out their implications in a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia. I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion I include some of the specific drawbacks to some current theories. In addition, I address the data's implications for the very theories of welfare and well-being that underlie much legal policy, as well as some speculations about what the findings might have to say about potential paternalistic policies.


 
Wednesday Workshops
    At University College London's Colloquium on Legal and Social Philsophy, Charles Fried presents Freedom of Speech as Freedom of Mind.
    At NYU's legal history series, Annette Gordon-Reed, Professor of Law, New York Law School presents The Africans and the English.
    At Oxford's Centre for Criminological Research Seminar Series, Nikolas Rose presents Governing Risky Individuals in a Biological Age.
    At George Mason's Workshop in Philsophy, Politics, and Economics, Claire Hill (School of Law Chicago-Kent College of Law) presents Beyond Mistakes: The Next Wave of Behavioral Law and Economics.
    At London's Centre for Philosophical Studies, Serena Olsaretti (Cambridge) presents Can Affirmative Action be Justified?.


Tuesday, February 24, 2004
 
Plain Meaning and Age Discrimination 29 U.S.C. Sec. 623 provides, "It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Today in General Dynamics Land Systems, Inc. v. Cline (opinion here, oral argument here), the United States Supreme Court held that this provision does not prohibit discrimination against younger employees in favor of older employees. Justice Souter's opinion for the Court deals with the statutory language this way:
    In the abstract, the phrase is open to an argument for a broader construction, since reference to "age" carries no express modifier and the word could be read to look two ways. This more expansive possible understanding does not, however, square with the natural reading of the whole provision prohibiting discrimination, and in fact Congress's interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better.
While Justice Thomas in dissent, writes:
    This should have been an easy case. The plain language of 29 U. S. C. §623(a)(1) mandates a particular outcome: that the respondents are able to sue for discrimination against them in favor of older workers. The agency charged with enforcing the statute has adopted a regulation and issued an opinion as an adjudicator, both of which adopt this natural interpretation of the provision. And the only portion of legislative history relevant to the question before us is consistent with this outcome. Despite the fact that these traditional tools of statutory interpretation lead inexorably to the conclusion that respondents can state a claim for discrimination against the relatively young, the Court, apparently disappointed by this result, today adopts a different interpretation. In doing so, the Court, of necessity, creates a new tool of statutory interpretation, and then proceeds to give this newly created .social history . analysis dispositive weight. Because I cannot agree with the Court.s new approach to interpreting antidiscrimination statutes, I respectfully dissent.
Any opinion that needs to rely on "clues" makes me nervous.


 
Limited Times, Eldred v. Ashcroft, and the Future of Copyright Larry Lessig points to a short piece by Douglas Keenan, addressing the question whether the terms provided by the Copyright Term Extension Act (author's life plus 90 or 120 for works for hire) violates the "limited times" requirement of the so-called "intellectual property clause." Here is a taste:
    In the USA, the constitution gives Congress the authority to grant a copyright for a limited time. The purpose of this is clear from the context: economic benefits. An economic benefit can be regarded as a sequence of cash flows. In finance, the duration of a sequence of cash flows is not measured directly in years; rather, duration is calculated via a formula involving interest rates. At present, Congress has granted copyrights to corporations for terms of 95 years. The duration of 95 years seems not significantly different from the duration of perpetuity. Hence, 95-year copyright terms seem effectively not time-limited. Thus, such terms might well violate the constitution.
There was lot's of discussion in the Eldred briefs of the added incentive created by the extension. Keenan's move comes from other other direction: how much less incentive do the CTEA terms offer than would a perpetual term. Frankly, I think this argument will not work--because it has no legal hook. What might work, however, is an argument based on the text of the clause. Here's how that might go:
    It is clear that a limited time is not an infinite one. If this were the only constraint imposed by this phrase, it would be a trifling constraint indeed. Congress might specify terms measured in centuries or millennia without approaching infinity. Indeed, any period or term at all, even one that would exceed the expected life of the Sun would be limited in this sense. This possibility motivates the search for some other constraint. Because there are finite spans of time that are unlimited for the purposes of humans, the phrase limited times must mean something other than a finite term if we are to attribute to the Framers some purpose in using the word “limited.” Consider first the possibility that “limited” means “brief” or “short in duration.” Given that the first Copyright Act specified a term of fourteen years plus a like term of renewal, it might be argued that the CTEA’s term of authors’ lives plus seventy years, being potentially quintuple the original term, would no longer qualify as conceivably “limited.” But without saying more, this interpretation is unsatisfactory. Why would we say that twenty-eight years is brief, but life plus seventy years is not? In the abstract and untethered to any particular context, the distinction seems arbitrary. Clearly, twenty-eight years is a very long time for some purposes. If a child were to ask a parent for a balloon and the parent were to reply, “I’ll get you one in a limited time,” or “you will have it shortly,” but the parent then waited twenty-eight years, the child would, if she remembered, rightly feel deceived or cheated. At the other extreme, twenty-eight years is but a blink of the eye in geological or evolutionary time. If an evolutionary biologist were to say, “The eye evolved in a surprisingly limited time,” we might expect the answer to be one million years or one hundred thousand years or perhaps an astonishingly brief ten thousand years. The lesson of these examples is that a time is limited with respect to a context. What then is the context of the phrase “limited Times” in the Copyright Clause? The times that are to be limited are those of the terms of exclusive rights in writings granted to authors. If society tells an author, “You may have an exclusive right to publish your work for a limited time,” what would the author reasonably expect? More relevantly, what would the Framers and ratifiers of the Constitution have expected? “Limited” in this context must be measured against the facts of human life in general and authorship in particular. There are exceptions, but usually authors are adult humans, who, if they do not meet with misfortune, have a normal full lifespan of more or less seventy to ninety years (up from perhaps fifty to eighty years some decades ago). A productive adult life begins in the late teens and usually ends in the late sixties to late eighties, depending on health. Thus, the phrase “limited Times” must be construed as bounded or restricted (to use the Oxford English Dictionary definition again) in the context of the time that individual human beings spend as authors—that is, limited with respect to a period that only very, very rarely would exceed seventy years. Given this context, the period provided by the Act of 1790 is a limited period. The original fourteen years and the renewal term of fourteen years provided a total of twenty-eight years. In the context of normal human lifetimes and the span of years during which an author might be productive, this is a long, but bounded or restricted period. The term provided by the 1831 Act (an original term of twenty-eight plus a renewal period of fourteen years) is in context, a very long, but still bounded term. The 1909 Act (increasing the renewal period to twenty-eight years for a total of fifty-six years) provided a term that for the majority of authors would be practically unlimited—fifty-six years would exceed the lifespan that would remain to many authors after they created their first work, but for at least some long-lived authors of those rare works with enduring market value, this term would be bounded and definite for practical purposes. Of course, with respect to individual works, a fifty-six year term is almost always the functional equivalent of an infinite term—because works that retain value past a fifty-six year period are exceedingly rare indeed.
For more of this argument, go here.


 
The Rule of Law and the Rule of Judges I posted yesterday on Ford on the Duty to Obey the Constitution. The gist of my comment was that city officials (like all of us) have a duty to obey the law--including the constitution--and that duty exists even before a judge tells us what it is. C.E. Petit has more on Scrivener's Error. Here is a taste:
    To borrow an approach from Slate, let's look at the extreme case. A military officer is even more bound to follow directives than is a "local official." Local officials, after all, aren't subject to court martial for failure to obey an order. Consider an order to raze a village in north-central Iraq. The order itself doesn't say so, but the superior officer—let's say the battalion commander, a lieutenant colonel—indicates to the company commander who will be charged with the task that this means killing civilians because they're almost all al Q'aida members, or at least sympathizers. In turn, the company commander (a captain) parrots this to the platoon leader, a second lieutenant barely out of Annapolis (we'll pretend these are Marines, not Army). The lieutenant blindly follows the order, resulting in the deaths of approximately 125 civilians. Under Ford's theory, the lieutenant did the right thing. Those with long memories may recall something similar in the 1960s. As Lt William Calley and Capt Ernest Medina found out, their defense that they were "only following orders" was improper both on factual grounds—they didn't present much evidence that such orders had actually been given, although later investigation indicates that they most probably were—and legal grounds. The military judge ruled that even if such orders had been given, they were so clearly unlawful that an officer under the pressure of a combat zone was still required to disobey them. This ruling was undisturbed on appeal. Under Ford's theory, though, the lieutenant (and captain) would not be guilty of war crimes, but would be guilty of disobeying an order.


 
Tuesday Workshops
    At Oxford's Jurisprudence Discussion Group, Danny Priel presents Legal Realism and Legal Positivism Reconsidered - Again. Here is a taste:
      Comparing “isms” is never an easy matter. It is particularly difficult when the first “ism” is a position associated with philosophers as early as Thomas Hobbes, had its “classical” period in the mid 19th century, and almost half of its most representative book is dedicated to showing the mistakes of previous writers associated with it, while the most famous proponent of the second “ism” said that it was not a school, only a “movement” whose members were joined “only in their negations, and in their skepticisms.”1 Still, for a long time a widely shared view was that legal positivism and legal realism are conflicting positions; the view was backed by a simple argument: positivism was identified with Langdellian formalism, and if there is one position the legal realists were undisputedly united in its “negation,” it is formalism. By simple substitution it follows that realism is opposed to positivism.2 This problem with this argument is that its first premise, namely that positivism is (or implies) formalism, is false. This has been by now persuasively shown many times, and there is no need to repeat this here again.3 Of course, very little follows from showing that that argument was not sound, not even that positivism and realism are not inconsistent. The novelty in Brian Leiter’s arguments, which he put forward in a series of articles4 was that he argued for a much stronger thesis. His thesis is that not only aren’t positivism realism inconsistent, but rather that the realists presupposed a theory of law along the lines of positivism; and not just any positivism, rather they presupposed the stronger version of positivism, the one known as hard (or exclusive) positivism. No doubt, in one rather loose sense of legal positivism, Leiter is surely right. Positivism is associated with the view that law can have whichever content those with the power to make and change law wish; the classical positivist position that immoral laws are still laws is only a special case of a more general claim. (All this is a bit rough, but the more refined picture is not important now.) The realists’ emphasis on what the law is, on taking the law as understood by the lawyer as a given or as an object of social scientific research seems indeed committed to the same view. Taking law as a social fact, epitomized in Hart’s denunciation of “much metaphysics, which few could now accept” rings similar to the realist Felix Cohen’s attack on “transcendental nonsense.”5 I do not wish to object that in this loose sense the realists can be seen as positivists. Leiter however is not content with this “family resemblance”; rather he offers a much stronger and clearly articulated claim. One aim of this paper is then to examine Letier’s arguments. I will try to show that there are several ambiguities in Leiter’s arguments, which once they are brought to light, damage his argument. I hope however that what I say will go beyond rebuttal of specific points in Leiter’s thesis. I hope that something more general about the relationships between a theory of law and a theory of adjudication, as well as a better understanding of positivism will emerge in a way that will reflect on other debates in analytic jurisprudence, and in particular some of the charges Dworkin leveled against positivism, which have sometimes been dismissed too swiftly by positivists. These responses were, I think, not only unsuccessful, but have not actually engaged Dworkin’s arguments. I hope what I will say will at least hint toward the direction of better answers.
    At Chicago's Olin series, Steven Kaplan, Graduate School of Business, Univesity of Chicago, presents How Do Legal Differences and Learning Affect Financial Contracts? coauthored with Frederic Martel and Per Strömberg.
    At the University of Texas, Michael Hoeflich, Univ. of Kansas, presents Lawyer Poets.
    At Florida State, Lee Breckenridge, Northeastern University Law School, presents Water Rights and Biological Integrity.
    At Oxford's The Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents Disability and Genetic Choice.


 
Korobkin on Heuristics for Law Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted The Problems with Heuristics for Law on SSRN. Here is the abstract:
    A large body of evidence, now familiar to the legal community,demonstrates that individual judgment and choice is often driven by heuristic-based reasoning as opposed to the pure optimization approach presumed by rational choice theory. The evidence of heuristic-based reasoning presents several challenges for consequentialist legal scholars who wish to make normative public policy recommendations. First, the fact that actors subject to the legal system often rely on heuristics suggests that their behavior will not always maximize their subjective expected utility, undermining the traditional assumptions of law-and-economics scholarship that private contracts are necessarily Pareto efficient and that legal taxes and subsidies can cause actors to behave in a way that maximizes social efficiency. Second, the fact that the decision makers who create law also rely on heuristics suggests that law will not necessarily maximize the desired ends of lawmakers, whether those ends are the collective good or the utility of favored groups, and that law that attempts to create incentives for certain behaviors might not be properly calibrated to its goal. Parts I and II of this essay describe these two problems that heuristics cause for law, and Part III considers steps that lawmakers can take to mitigate the problems. This essay was prepared for the June 2004 Dahlem Conference on Heuristics and the Law.


 
Penalver on Regulatory Taxings Eduardo M. Penalver (Fordham University - School of Law) has posted Regulatory Taxings on SSRN. Here is the abstract:
    The tension between an expansive reading of the Takings Clause and the state's virtually unlimited power to tax has been the subject of repeated scholarly comment but has received little systematic exploration. Some scholars, most notably Richard Epstein, have attempted to use the tension between takings law and taxes as an argument against the legitimacy of taxation as it is presently practiced. This approach, however, has failed to gain a significant following. Instead, there is a broad legal consensus that legislatures have virtually unlimited authority to structure and allocate tax burdens. Nevertheless, every attempt to formulate a "Reconciling Theory," that is, a theory that would reconcile the prohibition of takings (understood to include the exercise of eminent domain as well as certain regulations of property) with such a broad tax power, yields a substantial category of Regulatory Taxings, government actions that, though they would likely be viewed as takings under current doctrine, cannot be distinguished from taxes under the particular Reconciling Theory. The persistence of the category of Regulatory Taxings demonstrates that present takings doctrine is far too broad to fully reconcile with the longstanding constitutional norms governing taxation. Given the overwhelming consensus that existing taxation practices are largely constitutional, this observation in turn suggests a need to adopt a narrower understanding of the Takings Clause. At a minimum, any regulation that can easily be translated into a permissible tax should not count as a taking in need of compensation. Moreover, generally applicable regulations and regulations of fungible property should rarely be treated as takings.


 
Klerman & Mahoney on the Value of Judicial Independence Daniel Klerman and Paul G. Mahoney (University of Southern California Law School and University of Virginia School of Law) has posted The Value of Judicial Independence: Evidence from 18th Century England on SSRN. Here is the abstract:
    This paper assesses the impact of judicial independence on equity markets. North and Weingast (1989) argue that judicial independence and other institutional changes inaugurated by the Glorious Revolution of 1688-89 allowed the English government credibly to commit to repay sovereign debt and more generally to protect contractual and property rights. Although they provide some supporting empirical evidence, they do not investigate the effect of judicial independence separately from that of other institutional innovations. This paper is the first to attempt to do so. We look at share price movements at critical points in the passage of the 1701 Act of Settlement and other events which gave judges greater security of tenure and higher salaries. Our results suggest that giving judges tenure during good behavior had a large and statistically significant positive impact on share prices, while salary increases and other improvements to judicial independence had impacts which were consistently positive, but not individually statistically significant.


Monday, February 23, 2004
 
Ford on the Duty to Obey the Constitution Richard Ford has a column on San Francisco's gay marriage policy, the California DOMA, and the rule of law over on Slate. Here is the passage that interests me:
    It's a clever argument but not clever enough. Even if the courts ultimately were to agree with the city on the merits, the issue is for the courts to decide, not local officials. It's simple black-letter law that otherwise valid legislation is presumed to be constitutional until and unless judicially invalidated. Until a court decides otherwise, then, local officials are bound to uphold state law. There's a good reason that courts and not elected officials are in charge of invalidating legislation under constitutional norms. Not only are many local officials legally untrained and thus practically incompetent to make judgments on matters of constitutional law, but all local officials are subject to political pressures and thus likely to reach politically expedient conclusions about their constitutional duties. It's no accident that the constitutional epiphany that allowed gay marriage took place in a city with a large and politically powerful gay community: This particular Damascus road was paved with votes.
I take a hard line on the rule of law. I believe that the virtue of justice requires adherence to the law, except in extraordinary circumstances, even when we disagree with the law as a matter of policy or principle. But Ford's argument is premised on a fundamental misunderstanding of what justice requires. City officials, like judges, are obligated by the law itself. This means that when the responsible city official believes that an ordinance or is unconstitutional, she should not enforce it. Ford takes the position that the rule of law is virtually identical with the rule of judges--a proposition that is unsound as a matter of political and legal theory. The rule of law requires that we adhere to the law--and not only to what judges have already pronounced the law to be.
Of course, there may be special circumstances in which a city official ought to act in a way that she believes is unconstitutional and hence unlawful. One such circumstance is when there is a valid statute that commands her not to exercise independent constitutional judgment. Another circumstance is when a court has actually issued an order to the judge or established a precedent that would bind the courts which could resolve the issue.
Ford argues that officials should not interpret state constitutions, because they lack institutional competence. That is certainly a possibility, but does this argument apply when the official is a mayor acting on the advice of counsel. The reality is that individual trial court judges vary enormously in their skill as interpreters of constitutional norms; some are excellent, others not. So do City Attorneys; some give excellent advice, others not.
This is not to say that I agree with the action taken by the city. I haven't studied the relevant precedents of the California Supreme Court. I have a suspicion that the mayor may have asked whether his action is arguably required by the state constitution, and not whether it really is so required. But that's just a suspicion--unlike so much of the discussion of this issue has been short on discussion of the cases and long on confident assertion.


 
Weekend Update On Saturday, the Download of the Week was a new paper by the extraordinary Jeremy Waldron. The Legal Theory Bookworm could not resist recommending Fiona Cownie's new book on legal academics. On Sunday, the Legal Theory Lexicon entry was on Balancing Tests and the Legal Theory Calendar previewed this weeks workshops, talks, and conferences.


 
A Ninth of the Text On Saturday, I had a short post entitled The Text of the Ninth Amendment. One of the points I made was that as a formalist I believe that when interpreting the Ninth Amendment, we should look to the text first:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
With respect to the federalism interpretation, notice that the text does not read as follows:
    The enumeration in the Constitution, of certain rights, shall not be construed to enlarge the enumerated legislative powers of Congress.
Mike Rappaport has a slick and very very smart reply to my post here. Here is one of his key moves:
    for the Framers’ generation, the relationship between government power and rights of the people is like a border between two countries. By moving the border between Canada and the US northward, you necessarily shrink Canada and enlarge the US. Similarly, by expanding government power, you shrink the retained rights of the people.
Notice, however, that this argument does not establish the primacy of the federalism interpretation over a retained rights interpretation--it argues instead for their equivalence. That is, Rappaport's argument--if we accept it--shows that the Ninth Amendment would have been understood as a retained-rights amendment, even if it had been worded as a federalism amendment. Read his post, which reflects Rappaport's keen intellect and deep grasp of the history. On this point, Kurt Lash adds:
    In terms of your discussion with Mike. I do not think the choices are between a federalism reading and a retained rights reading. After all, the federalism-based right to local self-government may be one of the retained rights of the people. Instead, I think it is more helpful to distinguish federalist from libertarian readings of the Ninth. Both readings involve the retained rights of the people. They just define them differently.
Owen Courreges has more on Southern Appeal here. And here is another comment by Lash--this one relating to the quesion as to what the retained rights consist of. I had observed that at a minimum, they include those rights in the first eight amendments. Kurt observes that there is more:
    I would like to complicate the picture just a bit. The text of the Ninth Amendment literally refers to more than just the enumerated rights in the Bill. At the very least it included the rights listed in Article I, sections 9 and 10. More, since the Ninth controls the construction of "certain rights" "enumerat[ed] in this constitution," there is no textual reason to exclude from its scope "enumerated rights" added later, such as the Fourteenth Amendment. Finally (and much more controversially) it would include enumerated power provisions to the extent that they can be understood as provisions granting "regulatory rights" to the government. The historical use of terms like "powers" and "rights" make this last point a distinct possibility (consider also the possibilities if one includes the 14th Amendment's section 5 as one of the "rights" enumerated by the Fourteenth). None of this contradicts your point about textually based theories, it merely broadens the range of potential application. None of these "enumerated rights" are to be construed in a manner disparaging the "other rights retained by the people."
Lash has two papers on the Ninth Amendment, which you can access here and here. Also, my colleague Laurence Claus has an excellent paper on the Ninth Amendment, which you can access here.) And if you haven't done so already, I highly recommend that you get Randy Barnett's important and lucid book, Restoring the Lost Constitution, which deals extensively with the Ninth Amendment.


 
Monday Workshops
    At UCLA, Eugene Volokh presents Crime Facilitating Speech.
    At the University of Chicago's Political Theory Workshop, Patricia Nordeen, University of Chicago, presents Uncivil Society? The Roots of Nationalism in Adam Ferguson and the Scottish Enlightenment with discussion by Mark Pickering.
    At Cambridge's Forum for Legal and Political Philosophy, Charles Fried (Harvard and one of the most important figures in contemporary legal theory) presents Freedom of Speech as Freedom of Mind.
    At NYU, Bill Eskridge (Yale, visiting NYU) presents Lawrence's Jurisprudence of Tolerance Judicial Review to Lower the Stakes of Identity Politics.
    At the University of Chicago's law and philosophy series Carolyn Frantz, University of Chicago Law School, presents What Do Parents Owe Children?
    At Loyola Marymount, Lawrence M. Solan (Brooklyn Law School) presents Experts on Authorship in the Age of Daubert.
    At Oxford's Centre for Socio-Legal Studies, Neil Hutton presents Sentencing as a Social Practice.
    At Oxford's Moral Philosophy Seminar, Mark Kalderon (University College London) presents Moral Pyrrhonism and Noncognitivism.
    At Oxford's Jowett Society, Wayne Sumner (Toronto) presents Hedonism Revived?
    At Princeton's Program in Law and Public Affairs, Albert H. Yoon (Northwestern University) is speaking.
    At the Aristotelian Society in London, Ingmar Persson (Lund) presents Two Act-Omission Paradoxes.
    At the University of Alabama, Gabriel Chin, University of Arizona School of Law, presents Reconstruction and the Right To Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?


 
Swire on Katz Peter P. Swire (Moritz College of Law of the Ohio State University) has posted Katz is Dead. Long Live Katz (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
    United States v. Katz is the king of Supreme Court surveillance cases, famous for announcing the "reasonable expectation of privacy" test that is designed to protect personal privacy and limit intrusive searches. This essay comments on a forthcoming article by Professor Orin Kerr. Professor Kerr in an excellent article shows how this view of Katz fits badly with how courts actually apply the Fourth Amendment to electronic surveillance and other new technology. In this essay, I show how Professor Kerr actually understates the demise of Katz. Professor Kerr has correctly shown how the traditional property approach has persisted where it helps the government, such as by finding that many kinds of surveillance are not "searches" under the Fourth Amendment. This essay adds the insight that the property regime has actually been abandoned in other respects since 1967, in ways that have dramatically aided government surveillance. The 1967 abolition of the "mere evidence" rule has greatly expanded the government's ability to gain access to the private papers and other information of individuals. Examination of the case law under the "mere evidence" rule and of new developments in telephone technology leads to a second insight. Changing technology means that many telephone calls are likely to be subject to routine recording in the near future. Because the Supreme Court has been so supportive of government access to stored records, Katz may soon be dead on its own facts. If Katz is dead (or nearly so), what should be done? Professor Kerr appears to welcome the demise of Katz. He argues at length that Congress can do a better job than the courts at creating the law for high-tech surveillance. This essay criticizes that view, showing reasons for Fourth Amendment doctrine to continue to play a role in governing electronic surveillance and other high-tech searches. The end of Katz, perhaps even on its own facts, invites us to consider what alternative approaches the courts might use in structuring a good regime for high-tech surveillance by the government. This essay sketches some of the substantive doctrines that courts might workably enforce in defining Fourth Amendment searches. It then explores in some detail the possibility that the courts can work collaboratively with the elected branches to ensure that there are reasonable procedures in place. The new regime would uphold the rule of law, with reasonable procedures specified in advance. This approach would give both the courts and the elected branches their appropriate role for important categories of searches, such as those involving emerging technologies, new types of surveillance, and complex record-keeping systems.


Sunday, February 22, 2004
 
Legal Theory Lexicon: Balancing Tests
    Introduction Balancing tests are ubiquitous in American legal doctrine. From the Due Process Clause to the Freedom of Speech and from the federal joinder rules to personal jurisdiction, U.S. law makes the outcome of legal disputes dependant on the balancing of various interests and factors. Law students quickly become familiar with the idea of a balancing test, and moreover, are likely to quickly develop a cynical attitude about their constraining power. "So it's just subjective?"--is a question often asked in classroom discussion when a balancing test is announced. This post provides a rough and ready introduction to the theoretical issues raised by the notion of a "balancing test." As always, my intended audience consists of law students, especially first years, with an interest in legal theory.
    Case-by-Case versus Systemic Balancing The first distinction to master when thinking about balancing tests is that between case-by-case and systemic balancing. When a court adopts a case=by-case balancing test, the test is applied to each case, one case at a time. For example, in personal jurisdiction law, a case-by-case balancing test is used to determine whether assertions of personal jurisdiction are consistent with the Due Process Clause. But not all balancing is done on a case-by-case basis. For example, Mathews v. Eldridge announced a balancing test for determining whether pre-deprivation hearings are required by Due Process. This balancing test is applied to general categories (types) of deprivations. Once it has been determine that the balancing test does not require a hearing in category (e.g. Social Security disability benefit cases), the result is a categorical rule that can be applied to the category without further balancing.
    There is, of course, an analogy between the difference between case-by-case versus systemic balancing and the difference between act and rule utilitarianism. Act utilitarianism makes the rightness of an action depend on the consequences of that individual action. Rule utilitarianism makes the rightness of an action depend on whether the action conforms to the system of rules that would produce the best consequences. This analogy points to a larger concept--the scope of decision problem. Many legal theories assume that the scope of decision is an individual action or case, whereas others look to individual legal rules and yet others look to types of rules.
    Here is a nifty move, made famous by David Lyons (the legal philosopher who teaches at Boston University). Lyons argued that rule utilitarianism could be shown to be extensionally equivalent to act utilitarianism. His argument was beautifully simple. Take a rule and a particular action that would be required by act utilitarianism but forbidden by the utility maximizing rule. Now imagine an exception to the rule that would allow the utility maximizing action to be treated differently. The new rule-plus-exception produces more utility than the old rule. Hence rule utilitarianism requires the new rule. Lyons argued that we can iterate this move until rule utilitarianism and act utilitarianism require exactly the same results.
    What is Balanced? Yet another question that must be faced by any balancing test is "What is balanced?" Courts seem to think that just about any sort of interest or factor can be balanced. One kind of balancing test is represented by the International Shoe test for personal jurisdiction. This test balances interests--i.e. the interest of the plaintiff in the forum, the interest of the forum in the dispute, and so forth. Another kind of balancing test takes a varity of so-called factors into account: "prejudice to the defendant," "the impact on nonparties," and so forth in the case of tests for mandatory joinder. Properly speaking, such factors cannot really be balanced. Interests belong on the same scale--at least if they are the right kind of interests, but "factors" are usually considerations that bear in complex ways on a decision. The integration of multiple factors into a decision may involve balancing, but it also may involve reasoning that doesn’t actually weigh and compare commensurables.
    The Commensurability Problem This last point about balancing tests leads to a very fundamental idea in legal theory. Some approaches to moral theory make all ultimate values commensurable. In contemporary law and economics, for example, one approach reduces all value to preference-satisfaction, which then can be weighed via a Bergson-Samuelson social utility function. W(x) = F {U1(x), U2(x), . . UN(x)}, where F is some increasing function, U1 is the utility of state of affairs X for individual number 1, and so forth. Although some forms of consequentialism have the property of making all values commensurable, many moral theories do not have this property. Deontological ethics and virtue ethics, for example, generally are interpreted as maintaining that not all values are commensurable and hence as denying that balancing is even possible in some choice situations.
    The commensurability problem also provides a nifty move for legal theorists. If someone proposes a balancing test, ask yourself if the things that it requires to be weighed are such that they really can be measured on the same scale. If not, then the proposed balancing test simply will not be able to do the work assigned to it.
    Balancing Tests and the Rule of Law Yet another issue concerning balancing tests is the fancy version of the law student's intuition that balancing tests are subjective. Justice Scalia, for example, has argued that balancing tests undermine the rule of law because of their subjectivity and elasticity. If we believe that the rule of law values--certainty and predictability of the law--are very great social goods, then we have a general reason to prefer categorical rules to balancing tests. On the other hand, some balancing tests may be actually be more predictable than some rules with respect to a particular problem. For example, a case could be made that the "purposeful availment" component of the International Shoe test for personal jurisdiction is more subjective than the multifactor balancing component of the Shoe test. Some rules are very fuzzy; some balancing tests are quite precise.
    Conclusion Balancing tests are so common in American law, that you might begin to take them for granted, but that would be a mistake. Almost every balancing test raises interesting issues of legal theory. I hope this post has provided you with the tools to begin asking those questions.


 
Legal Theory Calendar
    Monday, February 23, 2004
      At UCLA, Eugene Volokh presents Crime Facilitating Speech.
      At the University of Chicago's Political Theory Workshop, Patricia Nordeen, University of Chicago, presents Uncivil Society? The Roots of Nationalism in Adam Ferguson and the Scottish Enlightenment with discussion by Mark Pickering.
      At Cambridge's Forum for Legal and Political Philosophy, Charles Fried (Harvard and one of the most important figures in contemporary legal theory) presents Freedom of Speech as Freedom of Mind.
      At NYU, Bill Eskridge (Yale, visiting NYU) presents Lawrence's Jurisprudence of Tolerance Judicial Review to Lower the Stakes of Identity Politics.
      At the University of Chicago's law and philosophy series Carolyn Frantz, University of Chicago Law School, presents What Do Parents Owe Children?
      At Loyola Marymount, Lawrence M. Solan (Brooklyn Law School) presents Experts on Authorship in the Age of Daubert.
      At Oxford's Centre for Socio-Legal Studies, Neil Hutton presents Sentencing as a Social Practice.
      At Oxford's Moral Philosophy Seminar, Mark Kalderon (University College London) presents Moral Pyrrhonism and Noncognitivism.
      At Oxford's Jowett Society, Wayne Sumner (Toronto) presents Hedonism Revived?
      At Princeton's Program in Law and Public Affairs, Albert H. Yoon (Northwestern University) is speaking.
      At the Aristotelian Society in London, Ingmar Persson (Lund) presents Two Act-Omission Paradoxes.
      At the University of Alabama, Gabriel Chin, University of Arizona School of Law, presents Reconstruction and the Right To Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?
    Tuesday, February 24
      At Oxford's Jurisprudence Discussion Group, Danny Priel presents Legal Realism and Legal Positivism Reconsidered - Again.
      At Chicago's Olin series, Steven Kaplan, Graduate School of Business, Univesity of Chicago, presents How Do Legal Differences and Learning Affect Financial Contracts? coauthored with Frederic Martel and Per Strömberg.
      At the University of Texas, Michael Hoeflich, Univ. of Kansas, presents Lawyer Poets.
      At Florida State, Lee Breckenridge, Northeastern University Law School, presents Water Rights and Biological Integrity.
      At Oxford's The Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents Disability and Genetic Choice.
    Wednesday, February 25
      At University College London's Colloquium on Legal and Social Philsophy, Charles Fried presents Freedom of Speech as Freedom of Mind.
      At NYU's legal history series, Annette Gordon-Reed, Professor of Law, New York Law School presents The Africans and the English.
      At Oxford's Centre for Criminological Research Seminar Series, Nikolas Rose presents Governing Risky Individuals in a Biological Age.
      At George Mason's Workshop in Philsophy, Politics, and Economics, Claire Hill (School of Law Chicago-Kent College of Law) presents Beyond Mistakes: The Next Wave of Behavioral Law and Economics.
      At London's Centre for Philosophical Studies, Serena Olsaretti (Cambridge) presents Can Affirmative Action be Justified?.
    Thursday, February 26
      At the University of Pennsylvania's law and philosophy series, there is a very special treat. Harry Frankfurt is giving a two part lecture. Part one is entitled Taking Ourselves Seriously and part two is Getting It Right.
      At UCLA's legal history series, Dan Ernst, Georgetown, presents The Recruitment of New Deal Lawyers: State, Party and Profession.
      At UCLA's tax policy series, John Matsusaka, USC Business School, presents Fiscal Policy & the Initiative Process.
      At Boston University Law School either Bob Bone or Rusty Park is speaking. ???
      At George Mason, Todd Zwycki (FTC) presents An Economic Analysis of the Consumer Bankruptcy Crisis.
      At Oxford's Public International Law Discussion Group, Anthony Aust presents Iraq: the Reckoning.
      At Australian National University's RSSS, Jeanne Peijnenburg (University of Groningen) presents Regret and Retrocausality.
      At Princeton's Public Law Colloquium, Helena Silverstein, Lafayette College, presents Law Bypassed: Constitutional Rights and State Mandated Parental Consent for Abortion.
      At the University of Hertfordshire Centre for Normativity and Narrative, Brendan Larvor (Hertfordshire)presents Particularism in Ethics and the Exact Sciences.
      At Royal Holloway College, University of London, Professor Richard Sorabji, Wolfson College, Oxford delivers the Dabis Memorial Lecture, entitled The Self in Ancient Thought.
    Friday, February 27


Saturday, February 21, 2004
 
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Legal Academics: Culture and Identities by Fiona Cownie. Here is a short description:
    This detailed study of the lived experience of legal academics explores not only the culture of legal academia and the professional identities of law teachers, but also addresses some of the most pressing issues currently facing the discipline of law. Given the diverse nature of contemporary legal scholarship, where does the future lie? With traditional doctrinalism, socio-legal studies or critical scholarship? What does academic law have to offer its students, the legal profession and the wider society? How do legal academics 'embody' themselves as law teachers, and how does this affect the nature of the law they teach and study? In the context of the RAE, the QAA and all the other pressures facing universities, legal academics discuss the realities of contemporary legal academia in the UK.
Here is the Table of Contents (pdf).


 
Download of the Week This week, the Download of the Week is Settlement, Return, and the Supersession Thesis by Jeremy Waldron (Columbia). Waldron is one of the brightest lights of contemporary theory. Everything I've ever read by Waldron has been rewarding, and this paper is particularly interesting. Here is a taste:
    In some recent writings, I have explored the proposition that certain things which were unjust when they occurred may be overtaken by events in a way that means their injustice has been superseded. I call this the Supersession Thesis. In formulating this thesis, I have in mind historic injustices of the sort discussed in relation to indigenous peoples’ rights in New Zealand, Australia and North America. The idea is that even if wrongful acts (for example, in the course of land purchase, expropriation, and settlement) lead to an unjust situation, S1, in (say) 1860 in which some indigenous people, P, stand deprived of resources to which they are at that time morally (and perhaps legally) entitled, the persistence of that deprivation for a long period of time, in the course of which circumstances change drastically, may result in an altogether different situation, S2, which is no longer unjust – relative to contemporary needs, claims, and deserts – and in which no one, including the descendants of P, are deprived of resources to which they are legally or morally entitled. (Or, if in S2 the descendants of P are deprived of resources to which they are entitled, the injustice of that deprivation is intelligible and remediable without any reference at all to the injustice that led to S1.)
Download it while its hot!


 
The Text of the Ninth Amendment Over at The Right Coast, Mike Rappaport has a truly excellent post on the Ninth Amendment. Here is an excerpt:
    Under [the traditional federalism interpretation], the Ninth Amendment was intended to address the possibility that the inclusion of a Bill of Rights would lead to an unjustified widening of the federal government?s enumerated powers. In Federalist 84, Alexander Hamilton argued that a bill of rights generally, and a provision protecting Freedom of the Press specifically, would be dangerous, because it might lead to a mistaken broadening of Congress?s enumerated powers. Hamilton writes:
      I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
    When introducing the Ninth Amendment to the House, Madison explained that it was intended to guard against this problem.
Rappaport is an important and learned constitutional scholar, and I always learn from my conversations with him. (Mike's office is next door to mine, and we discussed the Ninth Amendment yesterday with our colleague Laurance Claus, who has an excellent paper on the Ninth Amendment, which you can access here.) I've also been discussing the Ninth with Randy Barnett, a true expert on the Ninth. Randy's book, Restoring the Lost Constitution, deals extensively with the Ninth Amendment. And just last week, I attended a workshop on two papers by my former colleague Kurt Lash--which you can access here and here.
As you know, my own approach to constitutional interpretation is Neoformalist and that means that we should look to the text first:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
With respect to the federalism interpretation, notice that the text does not read as follows:
    The enumeration in the Constitution, of certain rights, shall not be construed to enlarge the enumerated legislative powers of Congress.
The Ninth Amendment must be interpreted so that the construction which is prohibited is one that would (1) deny or disparage rights retained by the people, (2) would deny or disparage rights that are not identical with (i.e. are "other" than) the rights enumerated in the Constitution. This textual point does not necessarily mean that the Ninth Amendment is not a federalism provision. Nor does it necessarily imply that the Ninth does not answer to Hamilton's objection as expressed in Federalist 84. But it does mean that considerable argumentative work must be done to support this interpretation.
The key move by Hamilton in Federalist 84 is made in the form of two questions:
    For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
The idea is that the enumeration of rights might lead to an inference that the enumerated powers must extend far enough so that the rights would be necessary to constrain the power--call this the powers-must-reach-the-rights construction. If this construction were accepted, it would have two consequences. Consequence number one would be a latitudinarian interpretation of the enumerated powers--an expansion of federal legislative power. Consequence number two would be the contraction of those unenumerated rights that would have been outside the sphere of federal power but for the latitudinarian construction of the powers.
So the theory of the Hamiltonian federalist interpretation is that the Ninth Amendment aims to negate the powers-must-reach-the-rights construction in order to negate consequence number one, and therefore, the Ninth Amendment rules out constructions that imply consequence number two. If consequence number two is negated, then the powers-must-reach-the-rights construction is indirectly forbidden and hence consequence number one will not occur. As a textualist, I am already becoming just a bit uneasy.
From the textualist perspective, there is nothing wrong with a slightly different point. If the effect of forbidding constructions that would disparage unenumerated rights retained by the people is to prevent the expansion of federal power by a latitudinarian construction, then that is the effect of the Ninth Amendment. But from a textualist perspective, the question must always be, "Which constructions of enumeration would deny or disparage other rights retained by the people?" All and only those constructions are forbidden by the Ninth. Of course, identifiying the forbidden constructions is a complex enterprise. We have a pretty good idea what the "enumeration in the Constitution, of certain rights" refers to: it refers at the very least to the first eight amendments (or those of the eight that confer rights if some do not). It is more difficult, however, to say what the "other rights retained by the people" might be. What is meant by rights? Are they individual rights or group rights or both? Are they natural rights or rights created by postive law? What does it mean to say they are retained? And what does it mean to say they are retained by the people? Moreover, we must also provide an account of what it means to "deny or disparage" a retained right.
In answering these questions, however, a textualist cannot assume as an initial premise the proposition that the answers to the questions must be all and only those answers which negate the the powers-must-reach-the-rights construction. Why not? Because the the powers-must-reach-the-rights construction is not what is forbidden by the text. What is forbidden by the text is a different construction.
What is the forbidden construction? We all know the answer to that question. The forbiddent construction says, "The first eight amendments enumerate certain rights. No other rights are enumerated. Because no other rights are enumerated, it follows that the constitution denies or disparages other rights which might have been retained by the people. If the people had wished to retain these other rights, they would have enumerated them." We know with absolute certainty that this is the construction which the text of the Ninth Amendment forbids, because this is the construction that is expressly negated by the text.
Of course, this textualist point does not provide us a construction of the Ninth Amendment. A construction of the Ninth Amendment requires more: it requires answers to the questions about the meaning of "deny or disparage," "rights," "retained rights," "retention by the people," and so forth. The textualist point does tell us how we must start our inquiry if we are to be faithful to the ideal of a written constitution that binds us to the text.
There is a wonderful flowering of both scholarly and blogospheric debate about the Ninth Amendment. After you taste some of the blogging on the Ninth, I strongly recommend that you take a look at some serious scholarship. As you might expect, with a topic as deep, historical, and theoretical as the meaning of the Ninth Amendment, much of the blogospheric discussion includes factual errors, ignorance of the history, and theoretically naive argumentation. Here are some places you can go for more:


 
Blogging the IP & Comm Law Scholars Roundtable Robert Heverly is blogging the roundtable at Michigan State over at Displacement of Concepts! Good stuff, surf on over.


Friday, February 20, 2004
 
Friday Workshops Here is today's roundup:
    At the University of Virginia, there is a conference to day on Brown v. Board. Click here or scroll down for details.
    At Michigan State-DCL College of Law, the first ip and comm law and policy scholars roundtable begins today. Click here for details.
    At SUNY Buffalo, Helju Bennett, UB, presents Naming the Ephemeral: Considering "the Rights to Move" Managed by the Russian Governments Past and Present with comments by David Engel, UB, & Errol Meidinger, UB.
    At UCLA, Scott Cummings (UCLA) presents The Politics of Pro Bono.
    At Texas, Michael Abramowicz (George Washington) is presenting Copyright Redundancy.. My thanks to Michael for emailing the title!


 
Katz on Sexual Harassment Martin Katz (University of Denver - College of Law) posts Re-Considering Attraction in Sexual Harassment (Indiana Law Journal, Vol. 79, No. 1, 2003). Here is the abstract:
    This Article rejects the modern feminist criticism of sexual harassment law and defends the current judicial paradigm. The modern feminist paradigm argues that sexual harassment results from gender-based power dynamics; the current judicial paradigm suggests that sexual harassment may be the product of sexual attraction. Early feminists relied on the attraction-based paradigm to solve the practical problem of demonstrating causation - i.e., that sexual harassment occurred "because of" sex, as required by anti-discrimination laws. However, in the wake of judicial acceptance of this approach, a "second wave" of scholarship has assailed its premises and results. Indeed, these attacks have been so numerous, so intense, and so persuasive that the attraction-based paradigm has fallen from favor and is now viewed by most academics as completely discredited. This Article seeks to re-habilitate a theory of causation based on sexual attraction, which I call "attraction theory." This Article will, for the first time, provide a comprehensive analytical look at this theory, which provides an efficient, streamlined model of proof for many sexual harassment plaintiffs. In so doing, this Article narrows some of the gaps that second wave feminists argue exist in attraction theory (including a gap that exists for bisexual harassers), and urges the courts to expand their use of presumptions regarding harassers' sexual orientation. This Article also addresses the normative criticisms of attraction theory, including charges that the theory relies on archaic notions of sexual harassment as being about attraction rather than power, and that attraction theory fails to provide a compelling conceptual justification for proscribing sexual harassment, concluding that none of these concerns justify scrapping attraction theory. Finally, this Article questions the efficacy of some of the power-based theories of causation proposed by second wave feminists, arguing that reliance on these theories, to the exclusion of attraction theory, will likely result in many victims being denied a remedy.


 
Choi & Pritchard on Behavioral Economics and the SEC Stephen J. Choi and Adam C. Pritchard (University of California, Berkeley and University of Michigan Law School) have uploaded Behavioral Economics and the SEC to SSRN. Here is the abstract:
    Investors face myriad investment alternatives and seemingly limitless information concerning those alternatives. Not surprisingly, many commentators contend that investors frequently fall short of the ideal investor posited by the rational actor model. Investors are plagued with a variety of behavioral biases (such as, among others, the hindsight bias, the availability bias, loss aversion, and overconfidence). Even securities market institutions and intermediaries may suffer from biases, led astray by groupthink and overconfidence. The question remains whether regulators should focus on such biases in formulating policy. An omnipotent regulatory decisionmaker would certainly improve on flawed investor decisionmaking. The alternative we face, however, is a behaviorally-flawed regulator, the Securities and Exchange Commission (SEC). Several behavioral biases may plague SEC regulators including overconfidence, the confirmation bias, framing effects, and groupthink. While structural solutions are possible to reduce biases within the agency, we argue that such solutions are only partially effective in correcting these biases. Instead of attempting to determine when the behavioral biases of regulators outweigh those within the market, we take a different tactic. Because behaviorally flawed (and possibly self-interested) regulators themselves will decide whether market-based biases outweigh regulatory biases, we propose a framework for assessing such regulatory intervention. Our framework varies along two dimensions. The more monopolistic the regulator (such as the SEC), the greater is the presumption against intervention to correct for biases in the market. Monopolistic regulatory agencies provide a fertile environment for behavioral biases to flourish. Second, the more regulations supplant market decisionmaking, the greater is the presumption against such regulations. Market supplanting regulations are particularly prone to entrenchment, making reversal difficult once such regulations have become part of the status quo.


 
Bressman on Legitimacy in the Administrative State Lisa Schultz Bressman (Vanderbilt University School of Law) has posted Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State (New York University Law Review, May 2003) on SSRN. Here is the abstract:
    From the birth of the administrative state, we have struggled to describe our regulatory government as the legitimate child of a constitutional democracy. We have sought to reconcile the administrative state with a constitutional structure that reserves important policy decisions for elected officials and not for appointed bureaucrats. Lately, we have become so fixated on the concern for political accountability that we have overlooked an important obstacle to agency legitimacy: the concern for arbitrary administrative decisionmaking. Perhaps more accurately, we have relegated this concern to "ordinary" administrative law - such as the Administrative Procedure Act (APA) - rather than "constitutional" administrative law - such as the nondelegation doctrine. This dichotomous thinking colors the prevailing model of the adminisitrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation - the President. In this Article, I argue that the "presidential control" model cannot legitimate agencies. It rests on a mistaken assumption about the appropriate role of accountability - an assumption that tracks closely the preoccupation with majoritarianism as a first premise of legitimate government, pioneered by Alexander Bickel and now subject to debate among constitutional theorists. The presidential control model misleads us into thinking that accountability is all we need to assure ourselves that agency action is constitutionally valid. It is time for us to recognize that preventing arbitariness remains at the core of administrative legitimacy. One we do, we finally can begin to resolve some of the conventional puzzles of both "constitutional" and "ordinary" administrative law, as well as sketch the outlines of furture developments in this area.


 
Conference Today: Brown v. Board at the University of Virginia
    Impact of Brown v. Board of Education Jack Greenberg, one of the NAACP lawyers who successfully argued Brown v. Board of Education, the landmark 1954 Supreme Court case that ended racial segregation in America's public schools, will give the keynote address at a University of Virginia School of Law symposium February 20-21 that will examine the ruling's impact from the vantage point of its 50th anniversary. The case had a profound effect on American society and gave impetus to the nascent Civil Rights movement. Sponsored by the Virginia Law Review and the Center for the Study of Race and Law, the symposium will feature distinguished national scholars on three panels that will focus on the case's impact on American society and law. Greenberg, now a professor at Columbia University will speak at 4:15 p.m., February 20, in Caplin Pavilion. Immediately following his address, the first panel will address Brown's effect on school integration. The second panel, meeting Saturday at 10:30 a.m., will focus on Brown's impact on the Civil Rights movement. The final panel, beginning at 1:15 p.m. on Saturday, will discuss Brown's implications for the interpretation of the Constitution. For more information or to register, contact lawrev@virginia.edu Brown Symposium Schedule All events held in Caplin Pavilion except where noted. FRIDAY, FEBRUARY 20 4:15 p.m. WELCOME KEYNOTE ADDRESS by Jack Greenberg, Professor of Law at Columbia University, NAACP Legal Defense and Educational Fund, 1949-1984. 5:00 p.m. BROWN AND SCHOOL INTEGRATION Kevin D. Brown, Professor of Law and Afro-American Studies at the University of Indiana Gary Orfield, Professor of Education and Social Policy at the Harvard Graduate School of Education and Director of the Harvard Project on School Desegregation, and Codirector of the Harvard Civil Rights Project James E. Ryan, William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law at the University of Virginia Amy Stuart Wells, Professor of Sociology and Education at Columbia University's Teachers College SATURDAY, FEBRUARY 21 10:30 a.m. BROWN AND THE CIVIL RIGHTS MOVEMENT Michael J. Klarman, James Monroe Distinguished Professor of Law, Albert C. Tate Research Professor, and Professor of History at the University of Virginia Kara M. Turner, Assistant Dean, College of Liberal Arts at Morgan State University Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law at Georgetown University 12:00 p.m. LUNCH in Scott Commons 1:15 p.m. BROWN AND CONSTITUTIONAL THEORY Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale University John C. Harrison, David Lurton Massee, Jr., Professor of Law Horace W. Goldsmith Research Professor Akhil R. Amar, Southmayd Professor of Law at Yale University


Thursday, February 19, 2004
 
Thursday Workshops Here is the roundup:
    At Stanford's law and economics series, Richard Epstein (University of Chicago Law School) presents Liberty versus Property? Cracks in the Foundation of Copyright Law. Here is a taste:
      The common classical view of liberty and property treats them as part of a coherent whole. The attack on property in the general literature often rests on the grounds that any system of property represents an unacceptable abridgment of personal liberty: property, said Proudhom, is theft. Similar arguments have been raised in connection with intellectual property, often by libertarians who accept the common heritage of liberty and property with tangible assets. This paper argues that the tension identified between liberty and property applies in both realms and can only be resolved by a unified technique that asks whether the creation of property rights creates Pareto improvements over a world in which all claims of liberty are accepted relative to those of property. That approach yields a place for both sorts of regimes and explains why IP rights are often less potent that rights in tangible land and chattels.
    At UCLA's legal theory series, Jeremy Waldron (Columbia) presents Settlement, Return, and the Supersession Thesis. Here is a taste:
      In some recent writings, I have explored the proposition that certain things which were unjust when they occurred may be overtaken by events in a way that means their injustice has been superseded. I call this the Supersession Thesis. In formulating this thesis, I have in mind historic injustices of the sort discussed in relation to indigenous peoples’ rights in New Zealand, Australia and North America. The idea is that even if wrongful acts (for example, in the course of land purchase, expropriation, and settlement) lead to an unjust situation, S1, in (say) 1860 in which some indigenous people, P, stand deprived of resources to which they are at that time morally (and perhaps legally) entitled, the persistence of that deprivation for a long period of time, in the course of which circumstances change drastically, may result in an altogether different situation, S2, which is no longer unjust – relative to contemporary needs, claims, and deserts – and in which no one, including the descendants of P, are deprived of resources to which they are legally or morally entitled. (Or, if in S2 the descendants of P are deprived of resources to which they are entitled, the injustice of that deprivation is intelligible and remediable without any reference at all to the injustice that led to S1.)
    At Yale's Legal Theory Workshop, Glenda Gilmore (Yale, History) presents "An Ethiop Among the Aryans:" Anti-Fascism, Local Politics, and Legal Strategies for Desegregation in the 1930s.
    At the University of Texas, Fred Schauer (Harvard, Kennedy School of Government) presents The Limited Domain of the Law.
    At Michigan's law and economics series, Doron Teichman (Humphrey Fellow in Law & Economics, Michigan) presents Sanctioning Sex Offenders Efficiently: An Economic Perspective on Megan's Laws.
    At UCLA's tax policy series, Reuven Avi-Yonah, Michigan Law School, Corporations, Society & the State: A Defense of the Corporate Tax.
    At the University of San Diego, Martha Fineman (Emory) presents excerpts from her book The Autonomy Myth: A Theory of Dependency.
    At George Mason, Ross Davies (GMU School of Law) presents Strike Season.
    At Vanderbilt, Alan Schwartz (Yale) is speaking. Does anyone have the title of his paper?


 
Coglianese on E-Rulemaking Cary Coglianese (Harvard University - John F. Kennedy School of Government) has posted E-Rulemaking: Information Technology and the Regulatory Process on SSRN. Here is the abstract:
    In order to channel interest in e-rulemaking toward effective and meaningful innovations in regulatory practice, the Kennedy School of Government's Regulatory Policy Program convened two major workshops, bringing together academic experts from computer sciences, law, and public management along with key public officials involved in managing federal regulation. This paper summarizes the discussions that took place at these workshops and develops an agenda for future research on information technology and the rulemaking process. It highlights the institutional challenges associated with using information technology in the federal regulatory process and suggests that in some cases existing rulemaking practices may need to be reconfigured in order to take full advantage of technological developments. Ultimately, the effective deployment of information technology to assist with government rulemaking will depend on integrating knowledge from across the social sciences, law, and information sciences.


 
Conference Announcement: Punishment, Theory and Practice
    Colloque international interdisciplinaire Le Châtiment : Histoire, théories et pratiques Punishment: History, Theory and Practice Bilingual symposium Organisé par le Centre de recherche en éthique de l'Université de Montréal (CREUM) et le Centre international de criminologie comparée de l'Université de Montréal (CICC). 26/27 mars 2004 : Palais de justice de Montréal The question of punishment is one that has continually provoked reflection, discussion and justification. But how can one distinguish the punishment from the crime if punishment implies vengeance? What criteria allow us to justify punishment in modern democratic societies? Contemporary philosophical theories of justice are often structured around attempts to resolve problems such as those of distributive justice, the ideal form of democracy or the role of contractualism. But they tend to neglect the question of punishment, its moral limits and the conditions of its legitimate application. And yet these problems are essential to striking a balance between political institutions and the moral ideals of democratic societies. Authors from a number of disciplines have called into question the legitimacy of legal punishment, citing how it contributes to what some have called "societies of control". Accordingly, some criminologists, jurists and sociologists in North America and in Europe have called for deeper reflection in view of penal reform and a rethinking of democratic ideals and security requirements. This sort of reflection has been carried out in historical, criminological, legal and philosophical research; this conference has been planned in precisely this multidisciplinary spirit. The aim of the conference is to provide a forum for talented authors working on the problem of punishment from a number of disciplines and from around the world. In addition to sharing knowledge about the state of contemporary research on the question, we shall also consider the role it has to play in society today and in the future. Speakers:
      Jean-Paul Brodeur Bertrand Guillarme Matt Matravers Claire Finkelstein Pascal Bastien Michael Wasser Denis Salas Alvaro Pirès
    Respondents:
      Christian Nadeau Marion Vacheret Elizabeth Elbourne Paul Le Bas Michael Milde Christian Lazzeri Andrew Lister Luc Bégin
    For information:
      http://www.creum.umontreal.ca/ http://www.cicc.umontreal.ca/ r.hindi@umontreal.ca


 
Conference Announcement: Comparative Avenues in Constitutional Scholarship
    Texas Law Review Conference, Feb. 27-28: Comparative Avenues in Constitutional Scholarship Conference will explore the emergence of foreign constitutional courts and their impact on American constitutionalism. WHEN: February 27-28, 2004 WHERE: Eidman Courtroom, Connally Center for the Administration of Justice, The University of Texas at Austin School of Law WHO: The event is free and is open to the University community and to the general public. AUSTIN, Texas—Today the Texas Law Review released its symposium schedule for "Comparative Avenues in Constitutional Law." The symposium, which will be held at The University of Texas at Austin School of Law on Feb. 27-28, 2004, will explore the emergence and impact of constitutional courts around the globe and review what new light comparative constitutional scholarship sheds on enduring problems in American constitutionalism. Prominent constitutional law scholars including UT Law's Willy Forbath, Larry Sager, and Sanford Levinson, as well as Stanford’s John Ferejohn, Columbia Law School’s Sam Issacharoff, Harvard Law School’s Frank Michelman, and Georgetown Law Center's Mark Tushnet will address topics such as the role of courts and constituional design in addressing ethnic, racial, and religious strife and the extent to which domestic courts should look abroad to interpret our own Constitution. The event is free and open to the University community and to the general public. Schedule: Friday, February 27 9 a.m. Welcome (Dean Bill Powers, UT School of Law) 9:15 a.m. Introductory Remarks (Willy Forbath, UT School of Law; Larry Sager, UT School of Law) 9:30 to 11:00 a.m. Panel 1: Constitutional Structures and Strategies (Victor Ferreres Comella, Universitat Pompeu Fabra, Barcelona, Spain; John Ferejohn, Stanford University) 11:15 a.m. to 12:45 p.m. Panel 2: The Role of Courts and Constitutional Design in Addressing Ethnic, Racial, and Religious Strife (Sam Issacharoff, Columbia Law School; Ran Hirschl, University of Toronto) 2:00 to 4:30 p.m. Panel 3: Interpreting and Enforcing Rights: Judicial Supremacy and Its Alternatives (Janet Hiebert, Queen’s University; Mark Tushnet, Georgetown University Law Center; Kim Lane Scheppele, University of Pennsylvania Law School; Willy Forbath, UT School of Law) Saturday, February 28 10:00 a.m. to 12:30 p.m. Panel 4: Borrowing (Frank Michelman, Harvard Law School; Gary Jacobsohn, Williams College; Sanford Levinson, UT School of Law; Larry Sager, UT School of Law) 2:00 p.m. to 3:30 p.m. Panel 5: Transnational Law and the Domestic Constitution (T. Alexander Aleinikoff, Georgetown University Law Center)


Wednesday, February 18, 2004
 
Lash on the Lost History of the Ninth Amendment Kurt Lash (Loyola Marymount) has uncovered some very interesting new historical evidence about the meaning of the Ninth Amendment. Lash suggests a new and plausible interpretation of the meaning of the Ninth. Here are the links:Here is the abstract for Part I:
    This article presents previously unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison’s initial draft of the Ninth Amendment expressly adopted the language suggested by the state conventions and he insisted the final draft expressed the same rule of construction desired by the states. In an episode previously unnoticed by scholars, the altered language of the final draft of the Ninth Amendment prompted Virginia Governor Edmund Randolph to bring to a halt his state’s efforts to ratify the Bill of Rights due to his concern that the Ninth no longer reflected the demands of the state conventions. Anti-Federalists used Randolph’s concerns to delay Virginia’s, and thus the Country’s, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origins and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions, and that the Ninth itself guarded against a “latitude of interpretation” to the injury of the states. That speech, given in opposition to the chartering of national bank, was but one of many occasions in Madison’s long career in which he would object to “latitudinarian” constructions of the Constitution--constructions that he believed were forbidden by the rule provided in the Constitution itself, the Ninth Amendment.
And Part II:
    It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation’s history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost Jurisprudence takes a comprehensive look at the Ninth Amendment jurisprudence which flourished from the early nineteenth to the mid-twentieth century. Long assumed never to have received significant attention from the Supreme Court, in fact the first discussion and application of the Ninth Amendment was by none other than Justice Joseph Story himself. In a passage unnoticed since the nineteenth century, Justice Story interpreted and applied the Ninth Amendment precisely the way James Madison and the state ratifying conventions intended; as a rule of construction preserving the retained right of local self-government. Ignored by the framers of the Fourteenth Amendment, the Ninth Amendment and its attendant rule of construction were deployed by courts throughout the nineteenth century to limit the interpretation of federal powers and rights. Ubiquitously paired with the Tenth Amendment, the Ninth suffered the same fate as the Tenth at the time of the New Deal, when both were rendered mere “truisms” in the face of expansive constructions of federal power. By 1965, the Ninth was assumed to exist in a doctrinal and historical vacuum, an assumption that no one has questioned until now.
Download them while they are hot!


 
Jacob Levy on Gay Marriage in San Francisco Jacob Levy has a thoughtful post on the Conspiracy on the rule of law issue. This is a very subtle question and deserves a more thorough and thoughtful analysis than I can offer here, but I do have a few observations:
  • My starting point is the presumption that the mayor ought to follow the law as he sincerely understands the law to be. This attitude is not the same as, "Do what you believe as right, as long as you can make a good faith argument that this would be lawful."
  • City officials are not state officials, and therefore are not bound by the provision of the State Constitution that forbids state officials from making unilateral constitutional interpretations. Cities are not administrative departments of the State of California--they are independent political entities that are subject to state law in much the same way that corporations are subject to state law.
  • Initiatives adopted by statute are superior to ordinary statutes, but they are not provisions of the California Constitution. An initiative can be unconstitutional. California's mini-DOMA is a statute and not a constitutional provision. Hence, if it is inconsistent with the State Constitution, it should not be enforced. In my view, the Mayor properly may and ought to refuse to enforce unconstitutional provisions.
  • Is Gay marriage required by California's constitution? I haven't a clue. You would need to actually read the California Constitution, read the California caselaw, and do the work required for a proper legal analysis. I haven't done that work; I suspect many who offer an opinion on the subject haven't done it either.
So I have no bottom line opinion on this interesting and important question.
Update: Levy responds to re the third point above:
    the basic rule is that municipal governments-- while they may not be 'agencies' of the state government-- are entirely creatures of the several states. They can be made and unmade at will by the state governments, which even in-state-chartered private corportaions ordinarily can't be. They are not independent political entities in any juridical sense, even when a given city actually predates the state that it's in. They don't have the 'dignity' that Scalia and Thomas insist states have in the constitutional order; they don't have the capacity to stand against the state legislature that states have to stand against Congress. They often have a great deal of effective political power, but they have neither the rights of state-chartered private entities like corporations and universities, nor the powers of states in a federal system.
Much of what Levy says is correct, but he draws the wrong inferences from the facts:
    First, cities are not "sovereigns." This means, for example, that they do not possess the constitutional state sovereign immunity associated with the 11th Amendment to the United States Constitution.
    Second, muncipal corporations are the "creatures of the states," because they organized under state law--as are private corporations. (Both public and private corporations share common legal origins.)
    Third, it is because of these two points that muncipalities are not departments of the state and muncipal officials are not state officials. If muncipalities were state departments and not state creations, then their status would be very different. They would, for example, share in constitutional sovereign immunity. Muncipalities are odd creatures. Their legal status is, in a sense, a holdover from a distant legal era.
Further update: A reader reminds me that San Francisco is both a county and a city & that under California law, the status of counties is different from that of cities. I simply don't know whether the Mayor is precluded from unilateral constitutional interpretation as a county official.


 
Paulson on the Marbury Myth The Calendar (scroll down) notes Michael Paulsen's workshop paper, The Irrepressible Myth of Marbury. Here is an excerpt from the beginning of this very interesting paper:
    Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review.” Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As befits the name of the court from which the doctrine emanates, the Supreme Court’s power of judicial review — the power, in Chief Justice John Marshall’s famous words in Marbury, “to say what the law is” — is supreme. The Congress, the President, the states — indeed, “We the People” who “ordain[ed] and establish[ed]” the Constitution — are all bound by the Supreme Court’s pronouncements. Thus, the decisions of the Supreme Court become, in effect, part of the Constitution itself. Even the Supreme Court is bound by its own precedents, at least most of the time. Occasionally the Court needs to make landmark decisions that revise prior understandings, in order to keep the Constitution up to date with the times. When it does, that revised understanding becomes part of the supreme law of the land. Other than through the adoption of a constitutional amend- ment, however, the Supreme Court is the final authority on constitutional change. Judicial review (the myth continues) thus serves as the ultimate check on the powers of the other branches of government, and is one of the unique, crowning features of our constitutional democracy. The final authority of the Supreme Court to interpret the Constitution has withstood the test of time. It has survived periodic efforts by the political branches, advanced during times of crisis (the Civil War and the Great Depression) or out of short-term political opposition to initially unpopular or controversial rulings (like Brown v. Board of Education and Roe v. Wade), to undermine this essential feature of our constitutional order. Through it all — Dred Scott and the Civil War, the New Deal Court-packing plan, resistance to Brown, the Nixon Tapes case, the Vietnam War, the quest to overrule Roe v. Wade — the authority of the Supreme Court as the final interpreter of the Constitution has stood firm. Indeed, the Court’s authority over constitutional interpretation by now must be regarded, rightly, as one of the pillars of our constitutional order, on par with the Constitution itself. So the myth goes. But nearly every feature of the myth is wrong. For openers, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified. Such a power and duty was contemplated by the Framers of the Constitution, publicly defended in Alexander Hamilton’s brilliant Federalist No. 78 (as well as other ratification debates), and well-recognized in the courts of many states for years prior to Marbury. Moreover, and also contrary to the mythology that has come to surround Marbury, the power of judicial review was never understood by proponents and defenders of the Constitution as a power of judicial supremacy over the other branches, much less one of judicial exclusivity in constitutional interpretation. Nothing in the text of the Constitution supports a claim of judicial supremacy. The courts possess “[t]he judicial Power of the United States” and that power extends to “Cases, in Law and Equity, arising under this Constitution,”0 but nothing in the logic or language of such a statement of constitutionally authorized judicial jurisdiction implies judicial supremacy over the other branches of government. Jurisdiction to decide cases does not entail special guardianship over the Constitution. (If anyone could lay claim to the title of Special Trustee or Lord Protector of the Constitution, it would be the President, for whom the Constitution prescribes a unique oath that he will, “to the best of my Ability, preserve, protect, and defend the Constitution of the United States.”).
Highly recommended!


 
Ninth Amendment Debate Check out this post on Southern Appeal & follow the links. Here is a taste:
    the Ninth Amendment, in and of itself, can be used to prohibit the States from infringing on the unenumerated rights falling with in the ambit of the amendment's protection. Here's why (and one could apply the following argument to the enumerated rights contained in the first eight amendments as well): The federal constitution cannot be interpreted in a vacuum. It does not just outline the powers delegated by the States to the federal government (although that is certainly a primary purpose of the document), but an entirely different governmental blueprint for the United States--one of dual sovereignty between the federal government and the States. What's even more interesting is that there is a third sovereign involved in the process--"the people." It is true, of course, that the people's sovereignty is generally expressed through the establishment of government, and that to the extent the people "retain" certain aspects of the "sovereignty pie" it is hard to quantify such residual sovereignty outside the rule of law context. In other words, natural law rights only have practical value to the extent government is willing to recognize and honor them.
Very interesting! It just so happens that I am attending a workshop today on this very topic. Kurt Lash (Loyola Marymount) is presenting two very interesting papers with lots of very powerful & NEW historical evidence. I'll post links to Kurt's papers as soon as they go up on SSRN.


 
Wednesday Workshops Here is today's roundup:
    At Northwestern's constitutional theory colloquium, Michael Paulsen, University of Minnesota Law School, presents The Irrepressible Myth of Marbury.
    At UCLA, James Penner (London School of Economics) presents The Individualism of Property Rights.
    At Boston University, Alon Klement (Radziner School of Law, Herzlia, Israel) and Zvika Neeman (B.U. Economics Department) present Against Compromise: A Mechanism Design Approach.
    At Villanova Law, Michael Carrier (Rutgers University School of Law-Camden) presents Cabining Intellectual Property through the Property Paradigm.


 
Chorvat, Smith & McCabe on Law & Neuroeconomics Terrence R. Chorvat , Vernon Smith and Kevin McCabe (George Mason University School of Law , George Mason University - Interdisciplinary Center for Economic Science (ICES) and George Mason University - Department of Economics) have posted Law & Neuroeconomics on SSRN. Here is the abstract:
    As legal scholarship has come to rely more on economic analysis, the foundational questions of economics have become important questions for legal analysis as well. One of the key foundational elements of modern economics is the assumption of the rational utility maximizing individual. While this assumption has often been questioned, until recently, it was not possible to actually examine the brain mechanisms that individuals use to process the economic problems they face. As a result of the increasing abilities to explore the brain as individuals engage in economic activity, this article calls for a new approach to the study of law which incorporates the findings from the emerging area of neuroeconomics. We call this approach law and neuroeconomics. We argue that this research can help us understand what is occurring in the brains of the individuals and knowledge gained thereby can greatly aid both in understanding the process of creation and development of law as well as its effects on human behavior. The article discusses this research and begins the analysis of applying these findings the study of law.


 
Solan on Pernicious Ambiguity Lawrence M Solan (Brooklyn Law School) has posted Pernicious Ambiguity in Contracts and Statutes(Chicago-Kent Law Review, 2004) on SSRN. Here is the abstract:
    This Article explores "pernicious ambiguity," an interpretive problem that is not adequately acknowledged by the legal system. Pernicious ambiguity occurs when the various actors involved in a dispute all believe a text to be clear, but assign different meanings to it. Depending upon how the legal system handles this situation, a case with pernicious ambiguity can easily become a crap shoot. If the judge does not take heed of the competing interpretations as reflecting a lack of clarity, and if that judge happens to understand the document in a way helpful to a particular party, that party wins. Because the document is not seen as ambiguous, the document is declared clear. In reality, however, the document is even less clear than are ambiguous documents. The competing interpretations reflect a complete communicative breakdown. If language worked so poorly generally, it would not be possible to have a language-driven rule of law at all.
    The problem, perhaps ironically, is that the concept of ambiguity is itself perniciously ambiguous. People do not always use the term in the same way, and the differences often appear to go unnoticed. While all agree that ambiguity occurs when language is reasonably susceptible to different interpretations, people seem to differ with respect to whether those interpretations have to be available to a single person, or whether ambiguity occurs when different speakers of the language do not understand a particular passage the same way. Often, courts even ignore disagreement among judges as irrelevant to whether a document is clear on its face. This Article will show how these different notions of ambiguity emerge, and offer some explanations based on advances in linguistics, cognitive psychology and the philosophy of language. Examples are taken from cases concerning the interpretation of statutes, contracts and insurance policies.


 
Conference Announcement: Northern Association for Ancient Philosophy
    Northern Association for Ancient Philosophy 6-7 April 2004 The 2004 meeting of the Association, which is open to all who are interested in ancient philosophy and its reception, will be held on 6 and 7 April in Newcastle. The programme will feature the following speakers: Sarah Broadie (St Andrews): "Why were there not Platonic Forms of artefacts?" Maria Fierro (Durham): "Plato's theory of desire in the Symposium and the Republic" Sarah Francis (Newcastle): "Aristotle on the role of nature in human achievement" Thomas Johansen (Edinburgh): "Aristotle on the difference between human and animal perception" John Moles (Newcastle): "Antisthenes, Dio and Vergil on the education of the strong" In addition, there will be an opportunity for postgraduate students to give a brief (5-10 minutes) presentation on their work in progress. If you are interested in this opportunity, please contact me at your earliest convenience (but no later than 22th February); or if you know of postgraduates who who might be interested, please bring this to their attention. The meeting will start in the afternoon of Tuesday 6th and finish at lunch time on Wednesday 7th April. The cost of participating in this conference will be £52, which will cover one night B&B, dinner, lunch, reception, refreshments, and conference fee. For those not requiring accommodation, there will be a charge of £29. For postgraduates, a reduction of 50% will apply. If you are interested in participating, please write to: Professor Philip van der Eijk University of Newcastle upon Tyne Classics School of Historical Studies Newcastle upon Tyne NE1 7RU Please note that bookings and payment need to be received by 29 February at the latest. There will be a surcharge for late bookings. Cheques should be made payable to the "University of Newcastle upon Tyne". For further information contact Philip van der Eijk Participation and Booking Proceedings will start on Tuesday 6th in the afternoon and finish at lunch time on Wednesday 7th April; they will take place in the University of Newcastle, School of Historical Studies, Classics section. Overnight accommodation (B&B) is available in Castle Leazes Hall of Residence, which is situated within walking distance from the conference venue. There will be a reception on Tuesday afternoon in the University's Shefton Museum of Greek Art. Dinner, lunch and refreshments will be arranged as part of the conference package.


 
Call for Papers: Feminist Philosophy in the Analytic Tradition
    The Department of Philosophy at The University of Western Ontario and the Society for Analytical Feminism present the conference FEMINIST PHILOSOPHY IN THE ANALYTIC TRADITION, June 4-6, 2004 Please submit your paper (3000 words or less, prepared for anonymous review) or detailed abstract (500 words) by e-mail to Professor Samantha Brennan, sbrennan@uwo.ca. Deadline March 15, 2004. We welcome papers, from faculty and graduate students, that apply analytic concepts and methods to feminist issues as well as papers that apply feminist concepts and insights to issues that traditionally have been of interest to analytic philosophers.


Tuesday, February 17, 2004
 
Balkin on Public Universities & Free Speech Read Jack Balkin's post Save Freedom of Speech, Get Rid of Public Universities? Here is a taste:
    For me, freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression, produce an educated citizenry and give them the tools and the practical opportunity to participate in the growth and development of culture. These infrastructural elements include, among others free public education, public libraries, common carrier rules in telephony and government sponsored scientific research. Put in economic terms, the infrastructure of free expression is a public good that markets will underinvest in. Put in sociological terms, the infrastructure of free expression is a precondition to a vital public sphere and the vigorous exchange of ideas. You will not be surprised, therefore that I believe that public universities (and indeed public education generally) are central (although not sufficient) ingredients of producing a culture of free expression. Put in economic terms, once again, a healthy and well functioning system of freedom of expression requires a vast array of public goods to supplement, undergird, and enrich civil society, private institutions and the work of markets.


 
Do Not Call Decision The Tenth Circuit has upheld the "Do Not Call" regulations. Here is the decision. And here is the AP story. And here is Howard Bashman's post.


 
Libertarian Ideal Theory Courtesy of Tyler Cowen, read this by Will Wilkinson


 
Hobbes Online I just discovered a nifty site (www.thomas-hobbes.com) with links to the works of Thomas Hobbes online, including Leviathan. Sites like this are certainly improving both the quality of online information and the ease of research! BTW, there is a terrific entry by Sharon Lloyd on Hobbes's moral and political philosophy in the wonderful Stanford Internet Encyclopedia of Philosophy.


 
Submission Dates for Speciality Journals I've been posting information on board transition and spring submission dates for student edited law reviews, with updates being added almost every day. (You can find the latest information here.) I'm starting this post to cover specialized journals. The first report comes from the editor-in-chief of the Law & Psychology Review at the University of Alabama, who reports that they plan on choosing next's year's managing board around the end of March. If you would like to add your journal to this post, email me at lsolum@sandiego.edu.


 
Tuesday Workshops Here is the roundup:
    At Oxford's Jurisprudence Discussion Group, Dwight Newman presents Rights to Exit and Rights to Eject. Here is a taste:
      Political theorists have often supposed that a right of exit held by individual members can excuse group conduct that would otherwise be considered unreasonably oppressive of individual members. As Chandran Kukathas puts it, ‘If an individual continues to live in a community and according to ways that (in the judgment of the wider society) treat her unjustly, even though she is free to leave, then our concern about the injustice diminishes.’ Kukathas seems prepared to go so far as to excuse the potentially unjust treatment on the grounds that the right of exit is available. Joseph Raz, still arguing that groups should and may be encouraged to change repressive practices, nonetheless claims that ‘the opportunity to exit from a group is a vital protection for those members of it who are repressed by its culture.’ These stronger or weaker claims have deep liberal roots, finding expression in writers from John Rawls back at least to John Locke.
    At the University of Texas, Les Green (Texas & York) presents Strategy and Ultimate Legal Rules. Here is an exerpt from the beginning of the paper:
      Custom requires that one tip for good service. That is no mere habit: it is rule, used as a standard of guidance and appraisal by diners and servers alike. And it is a fairly important rule: refusing to tip is not only rude, it is wrong, for it exhibits a lack of consideration for those who serve and it free-rides on those whose gratuities sustain the service economy in its present form. Yet there is no legal obligation to tip. There is, on the other hand, a legal obligation to pay the bill, even if the food is mediocre and the service poor. Why then is the tipping rule a mere custom but the paying rule is law? One might say that the paying rule is law because it will ultimately be enforced by people like judges, bailiffs, and the police, whereas the tipping rule won’t. That points us in the right direction, but it is inexact. What is relevant is not whether enforcement is likely, but whether it is authorized: some laws are rarely enforced; some predictable deployments of force are unlawful. Validity, not predictability, is the specific mode of existence of a law. So what authorizes enforcement of the paying rule? The law of contract does—a complex amalgam of judicial decisions and legislative enactments. But then why are those things law? They are law because they have been made in ways and by people authorized to make law. The enactments, for example, have been created by the exercise of powers granted by other enactments, including a Constitution that gives a legislature the power to regulate business transactions. But why is that Constitution law? Because it was created and amended in a way authorized by an earlier constitution. Yes; but why...? The lawyer’s old question—Quo warranto?—may be answered repeatedly, but not indefinitely. At some point the validity of law rests on something not itself legally authorized. The most convincing account of these foundations is due to H.L.A. Hart. In The Concept of Law, he argued that the ultimate criteria of legal validity are constituted by the customary practices of officials, insofar as their practices amount to a social rule. Of special importance among these practices is a rule of recognition, which specifies what features a rule must have before it is to be used in the ways that legal rules are. The rule of recognition no mere juristic hypothesis as Hans Kelsen thought the ‘basic norm’ to be; its existence is a matter of empirical fact. But neither is it a brute fact in the way John Austin conceived of the habit of obedience to superiors; the rule of recognition is a social rule and has the normative force that such rules have. It is because our rule of recognition certifies certain activities of legislatures, courts and others as sources of law, while denying that status to general social customs, that the payment rule is legally binding and the tipping rule is not. It is worth noticing, though, that the non-binding status of the tipping rule is not, as one might think, a function of its customary nature. It is a function of the fact that this particular custom is not, in our legal system, one that officials are bound to recognize and apply in accordance with their customs. At bottom, law itself is nothing more than a social construction of social customs.


 
McLaughlin on Mongolian IT Law Andrew McLaughlin (Harvard University - Berkman Center for Internet & Society) has posted Analysis and Critique of Mongolia's Draft Law on Information Technology. Don't be misled by the title--McLaughlin will have something important to say! Here is the abstract:
    Mongolia's Ministry of Infrastructure has proposed a Draft Law on Information Technology that is now being considered by Mongolia's State Great Khural, the country's parliament. The core conclusion of this analysis and critique is that the Draft Law as it now stands would do significant harm to Mongolia's vibrant and promising information and communication technology (ICT) sector. For the reasons detailed in this analysis, the Draft Law should be substantially revised and rewritten. To fulfill its responsibilities as the guardian of the people of Mongolia, the Great Khural must give careful consideration to each of the many policy choices that would be codified in the provisions of the Draft Law. An alarmingly high portion of the policy choices in the Draft Law will cause harm to Mongolia's national Internet and e-commerce sectors and to its future as a competitive player in the global information and communication technology markets. Many provisions are confused and confusing, apparently reflecting a lack of technical understanding. At home, the Draft Law would crush e-commerce with unnecessary regulatory burdens, block effective deployment of new technologies and infrastructures, raise the costs of Mongolia's ICT enterprises, restrict the range and reduce the quality of communications services, and increase the monthly bills for Mongolian users. If the Draft Law is approved and implemented as it is currently written, Mongolian citizens will be saddled with fewer choices, older technology, slower connectivity, higher prices, irrational limits on technology, and more bureaucracy. Perhaps worst of all, the Draft Law's burdensome regulations are so vague and expansive that they will undoubtedly open new vistas for governmental abuse and corruption. For Mongolia, the net result would be a costly tragedy of short-sightedness and a squandering of potential: with its high levels of education, literacy, and technical skills, the country is well-situated to be a highly competitive player in the global market for ICT services. Mongolia deserves much better than the broken legal framework of the Draft Law on Information Technology. If the country is to foster entrepreneurship, local enterprise, and low-cost, high-quality ICTs for all Mongolians, the Draft Law must be thoroughly reconsidered and rewritten.
Recommended.


 
Rubin on the Efficiency of Common Law Paul H. Rubin (Emory University - Department of Economics) has posted Why Was the Common Law Efficient? on SSRN. Here is the abstract:
    A basic question for law and economics is the efficiency of law. Hayek, (1960 and 1973) although writing before the law and economics movement and writing from another perspective, had argued that common or judge-made law was better than statute law; we return to Hayek's arguments below. Posner (1973; 2003) has of course argued often and forcefully that the common law is efficient. His arguments are based on examination of particular legal doctrines. I call this the "micro" argument for legal efficiency. The evolutionary models were aimed at explaining this micro efficiency. There is more recent literature that uses empirical methods to compare various legal systems. This literature generally finds that common law is more efficient than other forms of law. I call this the "macro" argument for efficiency. It is ultimately a Hayekian argument, based on the idea that in common law systems, governments have less power than in other systems. I first discuss micro efficiency, and them macro.


 
Kobayashi and Ribstein on Class Action Lawyering as Lawmaking Bruce H. Kobayashi and Larry E. Ribstein (George Mason University School of Law and University of Illinois College of Law) have uploaded Class Action Lawyers as Lawmakers to SSRN. Here is the abstract:
    Private lawyers are significant participants in legislative and judicial lawmaking. However, since law is a public good, lawyers face a significant free-rider problem in investing time and other resources in law-creation other than to the extent necessary to win the case for their client. This Article focuses on the lawmaking incentive problem inherent in class actions, and specifically on class action complaints. Because a class action lawyer prepares a complaint without knowing whether a court ultimately will select her as counsel for the class, the lawyer may have less incentive to put effort into the complaint than if she had been hired prior to drafting the complaint. This Article discusses ways such lawyers can be given adequate incentives to maximize the law-creation value of their complaints. It shows that direct protection, as through intellectual property rights, is not legally available, primarily because of due process concerns for public access to the law. We suggest that protection is best provided by the institutions for choosing the lead plaintiffs and lead counsel in class actions.


 
Call for Papers: Ethical, Legal and Social Aspects of Human Genetic Databases
    International ELSAGEN conference: "Ethical, Legal and Social Aspects of Human Genetic Databases" held jointly with the XVIII European Conference on Philosophy of Medicine and Health Care: "Genetics and Health Care" August 25-28, 2004 Reykjavík, Iceland http://www.elsagen.net/conference/ CALL FOR PAPERS The conference is organised by the Centre for Ethics at the University of Iceland, the E.U. bioethics project ELSAGEN and the European Society for Philosophy of Medicine and Healthcare (ESPMH). The local organization is headed by Prof. Vilhjálmur Árnason, Centre for Ethics at the University of Iceland. Papers are invited addressing ethical, legal and social issues related to human genetic databases and biobanks, including the following topics: Privacy of medical and genetic data Consent in population genetics and biobanks Genetic discrimination Genomics, governance and democracy Biobanks, population genetics and social justice The public discourse on genetic databases, biobanks and human genomics Concepts and methods in bioethical approaches to population genetics The effects of human genetics on ethical frameworks Social and historical contexts of genetic databases Legal frameworks and problems concerning genetic databases and biobanks Public perception of privacy and trust in relation to genetic databases Population genetics, databases and public policy Ethics committees and related institutions Commercialisation and benefit-sharing Genetic databases and human diversity Databases for research Databases and health service delivery Deadline for submissions is 29 February 2004. Papers must be submitted in English and must not exceed 2500 words including all notes and references. Please include a brief abstract not exceeding 200 words. Papers should be submitted in RTF or Word formats and sent as e-mail attachments to conference@elsagen.net. Papers must not have been submitted or accepted for publication elsewhere. Submitted papers will be refereed and, if accepted, published in the conference proceedings. Authors will not receive proofs and no revisions will be allowed after papers have been submitted. For further information contact Gardar Arnason.


 
Call for Papers: Health and Human Rights
    CAMBRIDGE QUARTERLY of HEALTHCARE ETHICS - HEALTH AND HUMAN RIGHTS - Publisher: Cambridge University Press, US Submissions are invited for a regular series on "Health and Human Rights". The 'Cambridge Quarterly of Healthcare Ethics' is designed to serve as an international forum for the wide range of serious and urgent issues in biology, medicine and healthcare faced by physicians, nurses, social workers, clergy, lawyers, educators, researchers and community representatives. Submissions for the "Health and Human Rights" series will be peer-reviewed and normally published within six months of acceptance. Papers should be accessible to a profession-wide audience from a variety of disciplines. Key messages should be conveyed succinctly, and without unnecessary jargon. Although there is no word limit, shorter contributions (ca. 4,000 words) are especially welcome. Instructions for Contributors: http://assets.cambridge.org/CQH/cqh_ifc.pdf IMPORTANT NOTE: Submissions to the "Health and Human Rights" series should be sent electronically to the Section Editor, Doris Schroeder at dschroeder@uclan.ac.uk (NOT in four copies to the journal editor!!). Latest deadline for submissions to be included in 2004: 15 May 2004. Looking forward to your submissions and discussions of suitable topics, Doris Schroeder ------------------------------ Dr. Doris Schroeder CQ "Health and Human Rights" Centre for Professional Ethics University of Central Lancashire Preston, PR1 2HE, England Tel. ++44 (0) 1772 892550 Fax. ++44 (0) 1772 892942 dschroeder@uclan.ac.uk http://www.uclan.ac.uk/facs/health/ethics/staff/doris.htm


Monday, February 16, 2004
 
Weekend Update Saturday was Rosalind Hursthouse day, her extraordinary paper What Does the Aristotelian Phronimos Know? was the Download of the Week and her book, On Virtue Ethics was recommended by the Legal Theory Bookworm. On Sunday, the Legal Theory Lexicon entry was on Procedural Justice and the Legal Theory Calendar previewed this weeks workshops, talks, and conferences.


 
Event Announcement: The Layers Principle at Stanford's Center for Internet and Society Today at 12:30 p.m. at Stanford's Center for Internet and Society (event link here):
    Lawrence Solum February 16, 2004 The Layers Principle: Internet Architecture & the Law (Dowloadable version here) Monday February 16, 2004 12:30 – 1:30 p.m. Room 80 (Moot Courtroom) Free and Open to all! Lunch Served The architecture of the Internet is layered, and this has consequences for regulators. This talk presents an argument that policy makers should craft their regulations so as to respect the integrity of the TCP/IP layers; moreover, regulators should seek to solve problems at the layer at which they arise. Failure to respect the layers principle damages the transparency of the internet and is inherently underinclusive and overbroad.
If you are are a reader of legal theory blog, be sure to introduce yourself! See you there!


 
Monday Workshops Here is the roundup of talks and workshops for today:
    At Columbia's law and economics series, Robert H. Sitkoff (Northwestern University School of Law, Visiting The University of Michigan Law School) presents An Agency Costs Theory of Trust Law.
    At Oxford's Centre for Socio-Legal Studies, Marc Hertogh presents A `European` Conception of Legal Consciousness: Rediscovering Eugen Ehrlich. I would be most grateful for a report, abstract, or copy of the paper--if available.
    At Loyola Marymount, Andrew Guzman, University of California at Berkeley, presents The Design of International Agreements.
    At Florida State, Dorothy Roberts, Northwestern Law School presents the Annual Mason Ladd Lectur, Measuring the Social and Moral Cost of Mass Incarceration in African American Communities.


 
Even Reminder: First Annual IP and Comm Law and Policy Scholars Roundtable This Friday at Michican State-DCL College of Law, the First Annual IP and Comm Law and Policy Scholars Roundtable begins. Follow this link for details. Participants include:
    Prof. M. Scott Boone Appalachian School of Law Prof. Adam Candeub Michigan State University-DCL College of Law Prof. Xinming Cao Zhongnan University of Law and Economics (China) Prof. Michael A. Carrier Rutgers Law School—Camden Prof. Christopher A. Cotropia Tulane Law School Prof. Alexandra George Queen Mary Intellectual Property Research Institute, University of London Prof. Shubha Ghosh University at Buffalo Law School, SUNY Prof. Llewellyn J. Gibbons The University of Toledo College of Law Prof. Mistrale Goudreau University of Ottawa Faculty of Law (Civil Law Section) Prof. Richard Gruner Whittier Law School Prof. Debora Halbert Department of History and Political Science, Otterbein College Prof. Robert A. Heverly The Norwich Law School, University of East Anglia (U.K.) Prof. Laura A. Heymann The George Washington University Law School Prof. Matt Jackson Department of Communications, Penn State University Prof. Jay P. Kesan University of Illinois College of Law Prof. Michael Landau Georgia State University College of Law Prof. Lyrissa Lidsky University of Florida Levin College of Law Prof. Jacqueline D. Lipton Case Western Reserve University School of Law Prof. Michael J. Madison University of Pittsburgh School of Law Prof. Mark McKenna St. Louis University School of Law Prof. Adam Mossoff Michigan State University-DCL College of Law Prof. Lynda J. Oswald University of Michigan Business School Prof. Susan Scafidi SMU Dedman School of Law Prof. Lars S. Smith Louis D. Brandeis School of Law, University of Louisville Prof. Hillel Sommer Radzyner Law School, The Interdisciplinary Center (Israel) Prof. Katherine J. Strandburg DePaul University College of Law Prof. Deborah Tussey Oklahoma City University School of Law Prof. Margaret Ann Wilkinson University of Western Ontario Faculty of Law Prof. Peter K. Yu Michigan State University-DCL College of Law


 
Grant Announcement: Issues in Bioethics
    Through its Interdisciplinary Program in Bioethics, The Greenwall Foundation provides funding for physicians, lawyers, philosophers, economists, theologians and other professionals to address micro and macro issues in bioethics, providing guidance for those engaged in decision making at the bedside as well as those responsible for shaping institutional and public policy. The Foundation is especially interested in supporting pilot projects and the work of junior investigators, and it is prepared to address issues regarded by some as sensitive or potentially controversial. The Foundation funds two affiliated programs administered separately. (1) The Greenwall Foundation Faculty Scholars Program The Greenwall Faculty Scholars Program in Bioethics is a career development award to enable outstanding junior faculty members to carry out original research that will help resolve important policy and clinical dilemmas at the intersection of ethics and the life sciences. This research will also put Faculty Scholars in a position to help set public policy and standards of clinical practice. Greenwall Faculty Scholars will receive 50% salary support up to NIH salary cap guidelines and benefits for 3 years, as well as funds to attend an annual meeting of Scholars with the Advisory Board. Faculty Scholars will be expected to spend at least 50% time on their project. Please visit the program Web site for further details Web site http://medicine.ucsf.edu/greenwall http://www.greenwall.org/exguide.html Program Director Bernard Lo, MD University of California, San Francisco Contact Program in Medical Ethics, University of California, San Francisco 415 476 6241 Phone greenwall@medicine.ucsf.edu


 
Call for Papers: The Political Philosophy of Needs
    Hamilton - The Political Philosophy of Needs A Special Issue of The South African Journal of Philosophy Submissions are invited for a special issue of the South African Journal = of Philosophy, to be published as in the 2005 volume (vol. 24) of the jou= rnal. Papers should engage with some aspect of Lawrence Hamilton's recent book = 'The Political Philosophy of Needs' (Cambridge 2003). In 'The Political Philosophy of Needs' Hamilton argues that "Modern moral= , legal, economic and political thought is characterised by an unwarrante= d glorification of the values of justice and welfare at the expense of po= litical participation, democratic sovereignty, and the satisfaction of hu= man needs." He seeks to remedy this by making the notion of human needs c= entral to both politics and political theory. Hamilton develops a positiv= e conception of human needs: the evaluation of needs must be located with= in a more general analysis of institutions but can in turn help to justif= y forms of coercive authority that are directed toward the transformation= of political and social institutions and practices. His argument is ani= mated throughout by discussions of topics such as autonomy, recognition, = rights, civil society, liberalism, and democracy. The book ends with an = application of the thesis to the context of South Africa, in particular l= and reform and the constitution of 1996 The volume will include a précis of the book, and a response to the acc= epted papers by Hamilton. Final submission deadline: December 15, 2004 (earlier submissions are wel= come) Submissions should be original previously unpublished work, submitted in = a form suitable for blind review. Submissions should include an abstract = for indexing purposes. Papers of between 6000 and 8000 words are preferred, but there is no stri= ct maximum length. Papers should be submitted electronically, as an attachment, in RTF or MS= Word format. The South African Journal of Philosophy is a peer-reviewed journal edited= by Deane-Peter Baker, Simon Beck, and David Spurrett (University of KwaZ= ulu-Natal). The journal is listed in a number of indexes, including the I= SI journals list and the Philosophers' Index. Enquiries about this issue,= and submissions, should be sent to David Spurrett: spurrett@ukzn.ac.za


 
Call for Papers: Nietzsche and Ethics
    Nietzsche and Ethics 10 to 12 September 2004 Brighton, United Kingdom Contact name: Simon Gillham Contact e-mail: S.Gillham@sussex.ac.uk Conference to be held at University of Sussex. Papers on any aspect of Nietzsche' ethical thought or relation to moral philosophy. 30 mins reading time. Organized by: Friedrich Nietzsche Society Deadline for abstracts/proposals: 1 March 2004


 
Call for Papers: Equality
    UK Association for Legal and Social Philosophy Annual Conference 2004 Monday 5 - Wednesday 7 July University of Wales College, Newport (Caerleon Campus) EQUALITY ... and democracy ... and difference ... and freedom ... and the law ... and recognition ... and gender ... and citizenship ... and class ... and punishment ... and autonomy ... and community ... and meritocracy ... of what? Why 'equality', as a value, a claim or an aim? How best should we understand the term, its worth and its potential? How should it be applied in contemporary social, legal and other institutional practice? What does it presuppose, whether as an ideal or a concrete goal? In a world increasingly presented as being characterised by difference and plurality, does equality retain its normative force? This is the latest in a series of conferences exploring areas of intersection between debates in political, legal, ethical and social theory on issues of pressing contemporary concern. A number of subsidised places are available for postgraduate students and those without institutional support. Keynote speaker: Prof Anne Phillips (London School of Economics) Proposals for papers (abstract of 300-400 words) to be submitted by 30 April 2004 Booking by 28 May 2004 For further details or a booking form, or to submit a proposal, please contact: Dr Gideon Calder Centre for Applied Social and Philosophical Studies University of Wales College, Newport PO Box 180, Newport NP20 5XR, UK Email: gideon.calder@newport.ac.uk


Sunday, February 15, 2004
 
Legal Theory Calendar Due to a very busy professional and personal schedule, I've focused on legal theory & law school events in compiling this week's calendar. Here is this week's roundup:
    Monday, February 16
      At Columbia's law and economics series, Robert H. Sitkoff (Northwestern University School of Law, Visiting The University of Michigan Law School) presents An Agency Costs Theory of Trust Law.
      At Oxford's Centre for Socio-Legal Studies, Marc Hertogh presents A `European` Conception of Legal Consciousness: Rediscovering Eugen Ehrlich. I would be most grateful for a report, abstract, or copy of the paper--if available.
      At Loyola Marymount, Andrew Guzman, University of California at Berkeley, presents The Design of International Agreements.
      At Florida State, Dorothy Roberts, Northwestern Law School presents the Annual Mason Ladd Lectur, Measuring the Social and Moral Cost of Mass Incarceration in African American Communities.
    Tuesday, February 17 Wednesday, February 18
      At Northwestern's constitutional theory colloquium, Michael Paulsen, University of Minnesota Law School, presents The Irrepressible Myth of Marbury.
      At UCLA, James Penner (London School of Economics) presents The Individualism of Property Rights.
      At Boston University, Alon Klement (Radziner School of Law, Herzlia, Israel) and Zvika Neeman (B.U. Economics Department) present Against Compromise: A Mechanism Design Approach.
      At Villanova Law, Michael Carrier (Rutgers University School of Law-Camden) presents Cabining Intellectual Property through the Property Paradigm.
    Thursday, February 19 Friday, February 20
      At Michigan State-DCL College of Law, the first ip and comm law and policy scholars roundtable begins today. Click here for details.
      At SUNY Buffalo, Helju Bennett, UB, presents Naming the Ephemeral: Considering "the Rights to Move" Managed by the Russian Governments Past and Present with comments by David Engel, UB, & Errol Meidinger, UB.
      At UCLA, Scott Cummings (UCLA) presents The Politics of Pro Bono.
      At Texas, Michael Abramowicz (George Washington) is presenting Copyright Redundancy.. My thanks to Michael for emailing the title!


 
Legal Theory Lexicon: Procedural Justice
    Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.
    Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.
    Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,
      two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.
    Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.
    In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:
      Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.
    Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy. The final notion is "pure procedural justice." Rawls writes:
      [P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.
    Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.
    Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:
      The Accuracy Model We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.
      But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy.
      The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:
        [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
      Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.
      Consider for example, Richard Posner?s economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs.
      The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures.
      On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:
        At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.
      In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.
    Conclusion Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.
    Online Resource Bibliography
    • Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
    • Mathews v. Eldrige, 424 U.S. 319 (1976).
    • Jerry L. Mashaw, Due Process In The Administrative State (1985).
    • Richard Posner, Economic Analysis Of Law (1992).
    • John Rawls, A Theory Of Justice (1971)
A complete collection of Legal Theory Lexicon posts can be found here.


Saturday, February 14, 2004
 
Legal Theory Bookworm Speaking of Rosalind Hursthouse (scroll down), the Legal Theory Bookworm recommends her magnificent book On Virtue Ethics. Hursthouse's book presents a fully developed, sophisticated version of virtue ethics. This is indispensible reading for anyone for anyone with a serious interest in contemporary moral theory. Here is a short description:
    Virtue ethics is perhaps the most important development within late 20th-century moral philosophy. Rosalind Hursthouse, who has made notable contributions to this development, now presents a full exposition and defence of her neo-Aristotelian version of virtue ethics. She shows how virtue ethics can provide guidance for action, illuminate moral dilemmas, and bring out the moral significance of the emotions. Deliberately avoiding a combative stance, she finds less disagreement between Kantian and neo-Aristotelian approaches than is usual, and she offers an account from a virtue ethics perspective of acting "from a sense of duty". Hursthouse considers the question of which character traits are virtues, and explores how answers to this question can be justified by appeal to facts about human nature. Written in a clear style which makes it accessible to non-specialists, the book should appeal to anyone with an interest in moral philosophy.
For those who are interested in aretaic moral theory, I also recommend these anthologies:


 
Download of the Week This week, the Download of the Week is Rosalind Hursthouse's extraordinary paper What Does the Aristotelian Phronimos Know?. Hursthouse is surely in the very top rank of moral philosophers working in the aretaic tradition. This paper deals with some of the thornies and most difficult issues in virtue ethics and makes real progress. If you want to see the state of the art in aretaic moral theory, this is it. Here is a taste:
    What does the Aristotelian phronimos know?
    The question above is a way of asking “What is moral knowledge?” For the Aristotelian phronimos – the practically wise man - has phronesis, which is a form of knowledge, and it is this that enables him (characteristically) to make correct decisions about what he should do. Hence our answer to the question in the title – given that Aristotle says very little about it explicitly – will inevitably be shaped by our own favoured picture of normative ethical theory.What the phronimos is excellent at, because of his phronesis, is practical reasoning. And what normative ethical theory aspires to do is enable those agents who apply it to reach correct decisions about what they should do, to provide a model of excellent practical reasoning.
    So if you are a particularist and an Aristotelian, you ascribe particularism to Aristotle, as McDowell and Nussbaum do. And if you are not, as Irwin is not, you see this as a mistake and argue against it.
    But what is particularism? Too new, as a technical term, to have made it into the Cambridge Dictionary of Philosophy, it is already old enough to have become unclear. Some people associate the doctrine with Dancy, others with McDowell and Nussbaum in relation to their writings on Aristotle. Some, perhaps, think that Dancy, McDowell and Nussbaum stand or fall together, and others that McDowell’s particularism can be ascribed to Aristotle only if a Wittgensteinian view of language can also be ascribed to him. For the purposes of this paper, I shall put Dancy to one side and begin with the particularism of the other two, aiming, eventually, to identify a basic insight of McDowell’s which is neither prominent in Nussbaum nor dependent upon McDowell’s Wittgensteinism. .
    McDowell and Nussbaum begin with an interest in what the Aristotelian phronimos knows, with what he possesses that enables him, unlike the rest of us, to be excellent at knowing what to do. And they are both concerned to deny a certain generalist picture of his knowledge; one according to which the phronimos has knowledge of a code by following which he is able to live and act well.
Download it while its hot!


Friday, February 13, 2004
 
Bell on Copyright as Theft I recently posted a link to Tom Bell's Authors' Welfare: Copyright as a Statutory Mechanism for Redistributing Rights and asked, "Why not copyright as theft, Tom?" Tom responds via email:
    But--oh!--you *are* a naughty fellow for suggesting a more radical conclusion than even *I* called for! But, OK, I'll take your bait. Why not copyright as theft? Well, I suppose for the same reasons, good or bad and convincing or not, that redistributions to the poor do not generally get classified as such. Some people, granted, call taxation "theft." My argument might, I suppose, convince them to call copyright the same. But that would follow only by dint of the analogy, not by any particular aspersions I cast on copyright. By the same token, my paper might encourage people who esteem welfare to regard copyright in a new and kinder light. You may note, by the way, that insofar as my argument encourages convergence between views on welfare and copyright, it cuts across the grain of convention. Left-wingers like welfare but dislike copyright, traditionally, whereas right-wingers have polar opposite views. I aim to shake up those orientations a bit.


 
Friday Workshops Here is the roundup:
    At the University of San Diego, Stacey Dogan (Northeastern, visiting Boston College) presents Trademarks and Consumer Search Costs on the Internet. Here is a taste:
      In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable “confusion” and by broadening the classes of people who can face legal responsibility for that confusion. And they have based their decisions not on the normative goals of trademark law, but on property-based instincts and tenuous presumptions about consumer expectations and practices on the Internet. This paper contends that this expansionist trend in Internet trademark cases threatens to undermine a central goal of the Lanham Act – to promote fair and robust competition through reducing consumer search costs.
    At the University of Texas, Nina Pillard (Georgetown) presents The Constitution in Executive Hands.
    At Oxford's Jowett Society, Donald Regan (Michigan) delivers Why Am I My Brother's Keeper.
    At the Royal Institute of Philosophy in London, Michael Wheeler presents Under Darwin's Cosh: Neo-Aristotelian Thinking in Environmental Ethics.
    At the University of Arizona's philosophy series Michelle Mason (Philosophy, University of Minnesota) presents Living Well and Faring Well
    At ASU today, a symposium entitled We’ve Only Just Begun: The Impact of Remand Orders on American Jurisprudence.. Participants include Dan Rodriguez (USD), Erwin Chemerinsky (USC), Shaun Martin (USD), John Sims (McGeorge), Michael Berch (ASU), and others.
    At the University of Alabama, John Keown, Georgetown's Kennedy School of Ethics, presents Abortion, Law, History and Ethics.


 
Rosenberg & Kozel on Mandatory Summary Judgment David Rosenberg and Randy Kozel (Harvard Law School) have posted Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment on SSRN. Here is the abstract:
    The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation out-comes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current procedural rules are inadequate to foreclose nuisance-value strategies. Class action is commonly thought to exacerbate the nuisance-value settlement problem to the systematic disadvantage of defendants. This concern has contributed to the growing support among courts and commentators for subjecting class actions to precertification merits review (PCMR), generally understood as conditioning class certification on prior screening of class claims for some threshold level of merit. This article proposes "mandatory summary judgment" (MSJ) as a solution to the problem of nuisance-value settlement in class actions and in civil litigation generally. Essentially, MSJ denies judicial enforceability to any settlement agreement entered into before the nuisance-value claim or defense has been submitted for merits review on a motion for summary judgment or other standard dispositive motion. Assessing the potential costs of the MSJ solution, we conclude that neither the opportunity for evading MSJ strictures nor the possibility of adding expenses to the settlement of non-nuisance-value litigation outweighs the benefits of MSJ. MSJ will be most cost-effective in the class action context, given the already existing general requirements of judicial review and approval of class action settlements, but MSJ should also prove beneficial in preempting nuisance-value strategies outside of class actions in the standard separate action context. With the MSJ solution set out, the article moves finally to offering a more exhaustive analysis of the theoretical soundness and practical efficacy of MSJ in the class action context, where its marginal benefits are arguable the greatest. First, the article challenges the commonly held belief that class action certification exacerbates the nuisance-value settlement problem, attempting to displace the conventional understanding of complex litigation with a new conceptual framework based on the recharacterization of the class action as part of a continuum of litigation processes rather than an isolated litigation mechanism. Second, the article provides a comparative analysis of MSJ and PCMR as solutions to the nuisance-value problems that do exist in the class action context, concluding that MSJ presents the superior and more cost-effective option.


 
Vermeule on Submajority Rules Adrian Vermeule (University of Chicago Law School) has posted Submajority Rules (in Legislatures and Elsewhere) on SSRN. Here is the abstract:
    Legal and political theory have paid a great deal of attention to supermajority rules, which require a fraction of votes greater than 1/2+1 to reach a decision, and thus empower a minority to block change. In this paper I consider the opposite deviation from simple majority rule: submajority rules, under which a voting minority is granted the affirmative power to change the status quo. Among the examples I will consider are:
      - The Journal Clause, which allows 1/5 of the legislators present in either House to force a roll-call vote; - The discharge rule in the House, which (at various points, although not today) has permitted a specified minority of legislators to force bills out of committee for consideration on the floor; - Senate Rule XXII, under which a cloture petition is valid when signed by sixteen Senators; - The "Seven Member Rule," under which a minority of designated committees in the House and Senate can require the executive branch to divulge information; - House Rule XI, which entitles committee minorities to call witnesses at hearings; - The famous "Rule of Four" that allows four Justices to grant a writ of certiorari and thereby put a case on the Supreme Court's agenda; - Rules governing direct democracy that permit a defined minority of a state's electorate to place a question on the ballot, or to force a recall election; - Rules governing international organizations, which frequently allow a defined minority to call an emergency session or to force a roll-call vote.
    Submajority rules are rarely discussed, either because they are assumed not to exist, or because they are assumed to lack any institutional virtues, or because submajoritarian decisions are assumed to be chronically unstable in light of the risk that subsequent majorities will reverse the submajority's decision. I will dispute all three assumptions. Submajority rules have important procedural and deliberative virtues: in a range of situations they enable a minority to force public accountability upon a majority, to the benefit of the institution as a whole. The reversibility problem can be, and is, dampened by other institutional rules and norms that protect submajoritarian decisions, or by the simpler expedient of adopting submajority rules only for decisions that are inherently irreversible or costly to reverse, such as decisions that release information into the public domain.


 
Kant Today is the 200th anniversary of the death of Immanuel Kant.


 
Law Songs . . . translated from the Russian. Get them on the Volokh Conspiracy! Where else?


 
Conference Announcement: Moral Testimony
    Royal Institute of Philosophy at Birmingham University Moral Testimony A one-day conference on telling and being told what's right 20 March 2004 We very often make use of other people's greater knowledge when it comes to non-moral matters: we ask a surveyor whether a house is structurally safe, we ask a neighbour whether a rhododendron will grow on this soil, we consult an encyclopedia on the size of Estonia. Not only do we ask, we also rely on the expertise of others. But can one rely on others' expertise when it comes to moral issues? Can I rely on someone else's word, for example, when it comes to the question whether it is morally right to carry out animal experiments? Many would say that it's wrong to let other people do our moral deliberations for us. I can't judge animal experiments to be wrong just because someone tells me they are wrong. Rather, I need to know why they are wrong. By contrast, it's perfectly normal to judge a house to be structurally unsound because a surveyor told me. I don't need to know why. Others may say that moral expertise is just like geological expertise: we can (in certain circumstances) let the moral experts work out what it's right to do and need not think it through for ourselves. This one-day event features four philosophers who have thought about these issues. It picks up where the recent series on "2nd Hand Knowledge" left off. However, no background knowledge is required. As before, everyone is welcome and the event is free. However, if you plan to attend, please let the organizer know in order to enable better planning. Date: Saturday 20 March 2004 Venue: Lecture Room 2, first floor, Arts Building, University of Birmingham. The lectures are free and open to the public. Programme:
      11.00 Dr David Owens, Sheffield University Telling Someone What to Do 12.30 Dr Elizabeth Fricker, Oxford University What May We Properly Trust Others About? 13.00 lunch break 14.30 Prof Rob Hopkins, Sheffield University Wanted: Moral Informants-No Expertise Necessary 16.00 Dr Richard Holton, Edinburgh University How Deep Can Moral Testimony Go? 17.30 Coffee/tea 18.00 Panel discussion with the above and Neil Manson (Cambridge)
    Organizer: Max K lbel, Philosophy Department, University of Birmingham, Birmingham B15 2TT, email: m.kolbel@bham.ac.uk web: www.philosophy.bham.ac.uk


 
Greenberger on Detention Without Probable Cause Michael Greenberger (University of Maryland - School of Law) has posted Indefinite Material Witness Detention Without Probable Cause: Thinking Outside the Fourth Amendment (Michael Greenberger, AT WAR WITH CIVIL RIGHTS AND LIBERTIES, Thomas E. Baker, John F. Stack, Jr., eds., Rowman & Littlefield, Forthcoming) on SSRN. Here is the abstract:
    A constitutional issue recently addressed by the United States Court of Appeals for the Second Circuit in United States v. Awadallah, 349 F.3d 42 (2003), has not received the widespread attention of high-profile litigation concerning the Justice Department's other controversial counter-terrorism policies. It is equally important. The issue arises out of Attorney General Ashcroft's announcement shortly after the terrorist attacks of September 11, 2001 that the "aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks." Since that time, the Department of Justice has used the federal material witness statute (18 U.S.C. § 3144) to arrest numerous individuals and detain them indefinitely in the general prison population for the ostensible purpose of securing future grand jury testimony. While held pursuant to the statute, they are not charged with any crime; nor, upon their detention, is there any probable cause that they have committed a crime. This Article contains a historical survey of the federal material witness statute, as well as relevant Federal Rules of Criminal Procedure, legislative history, and case law. In particular, this Article highlights a sophisticated federal district court analysis of this issue, the logic of which attempted to accommodate the interests of all the parties involved in terrorism investigations. The judge in that case suggested a process in which the Government could obtain the grand jury testimony of a material witness, while minimizing the intrusion on the material witness' liberty interests by affording them their freedom via bail or a deposition. The Second Circuit declined to follow this approach in practice by sustaining the Fourth Amendment validity of the Department of Justice's indefinite detentions of grand jury material witnesses without bail or a deposition. As presently drafted, and as construed by the Second Circuit, the federal material witness statute is ambiguous and subject to conflicting interpretation. At the same time, the statute also raises serious constitutional questions. This Article suggests a legislative remedy which accommodates the Government's need to secure important grand jury testimony, while avoiding what amounts to unjustifiable, coercive, and indefinite material witness detentions pending grand jury investigations.


 
Call for Papers: Metaethics Workshop
    This is a call for abstracts for the first annual Metaethics Workshop, to be held at the University of Wisconsin, Madison, on October 16th and 17th, 2004. Peter Railton (Michigan) and Michael Smith (ANU & Princeton) will be keynote speakers. Abstracts (of 1-3 double-spaced pages) of papers in any area of metaethics are due by JUNE 1. A program committee will evaluate submissions and make decisions by early July. Information on submitting an abstract, plus much other relevant information about the workshop, can be obtained either by opening the attachment to this email, or by clicking on the link posted on the UW-Philosophy website: http://philosophy.wisc.edu/. All questions about the workshop may be directed to Russ Shafer-Landau. Please see the contact information below. Russ Shafer-Landau Dept. of Philosophy University of Wisconsin 5185 Helen C. White Hall 600 N. Park St. Madison, WI 53706 608.263.3727 (office) 608.265.3701 (fax) 608.233.9424 (home) shaferlandau@wisc.edu


Thursday, February 12, 2004
 
Conference Announcement: The Theory of the Criminal Law's "Special Part"
    Conference on the Theory of the Criminal Law's "Special Part" Sponsored by the Pugh Institute for Justice and the Louisiana State University Law Center March 5-6, 2004 Baton Rouge, Louisiana Friday, March 5 9:00 a.m. Introductory Remarks by Chancellor John Costonis (LSU Law Center) and Judge James Dennis (U.S. Fifth Circuit Court of Appeals) 9:15-10:15 a.m. Jeremy Horder (University of Oxford) -- "Categorising Wrongs: Beyond 'Basic' and 'Specific' Intent" Commentator: Ken Simons (Boston University) 10:30-11:30 a.m. Markus Dubber (SUNY Buffalo) -- "The Possession Paradigm" Commentator: Kevin McMunigal (Case Western Reserve) 12:00-1:00 p.m Douglas Husak (Rutgers University) -- "Malum Prohibitum and Retributivism" Commentator: Penelope Pether (American University) 2:30-3:30 p.m. Antony Duff (University of Stirling, Scotland) -- "Criminalizing Endangerment" Commentator: Marcelo Ferrante (Universidad Torcuato Di Tella, Argentina) 4:00-5:00 p.m. Andrew Simester (University of Nottingham, England) and Bob Sullivan (University of Durham, England) -- "Theft, Deception and Related Property Offences" Commentator: John Baker (Louisiana State University) Saturday, March 6 9:00-10:00 a.m. Stephen Shute (University of Birmingham, England) -- "Murder: The Worst Crime?" Commentator: Leo Zaibert (University of Wisconsin, Parkside) 10:15-11:15 a.m. Claire Finkelstein (University of Pennsylvania) --"Merger and Felony Murder" Commentator: Kimberly Ferzan (Rutgers University, Camden) 11:45 a.m.-12:45 p.m Kyron Huigens (Cardozo Law School) -- "Is Strict Liability Rape Defensible?" Commentator: Tony Dillof (Wayne State University) 2:15-3:15 p.m Stuart Green (Louisiana State University) -- "What's Wrong With Bribery?" Commentator: Vera Bergelson (Rutgers University, Newark) 3:45-4:45 p.m. Victor Tadros (University of Edinburgh) The Distinctiveness of Domestic Violence: A Freedom-Based Account Commentator: Phil Bates (King's College, London) For further information, contact Stuart Green (sgreen@lsu.edu) or Antony Duff (r.a.duff@stir.ac.uk).


 
Thursday Workshops Here is today's roundup:
    At the University of San Diego's Law, Economics, and Politics series, Fred Schauer (Harvard's Kennedy School of Government) presents The Tyranny of Choice and the Rulification of Standards.
    At U.C. Berekely's Department of Philosophy Colloquia, Rosalind Hursthouse (University of Auckland) presents What Does the Aristotelian Phronimos Know?. I heard Rosalind give an earlier version of this extraordinary paper at the University of Canterbury in New Zealand. Very highly recommended.
    At the University of Michigan's Law and Economics series, Steven Walt (Virginia) presents Liquidated Damages After Behavioral Law and Economics.
    At UCLA's tax series, Ed McCaffery (USC Law School) presents Heuristics & Biases in Thinking About Tax.
    At UCLA's Legal Theory Workshop, Barry Friedman (NYU) presents The Importance of Being Positive: The Nature and Function of Judicial Review.
    At George Mason, Susan Haack (University of Miami Department of Philosophy) presents Trial and Error: The Supreme Court's Philosophy of Science.
    At Harvard's philosophy series, Steve Darwall (Michigan) is speaking. Title anyone?
    At Yale's philosophy series, Matthew Smith presents TWO CONCEPTIONS ON NORM GUIDANCE.
    At the University of Hertfordshire Centre for Normativity and Narrative, Jane Singleton (Hertfordshire) presents Neither Generalism nor Particularism: Ethical Correctness is located in General Ethical Theories.
    At King's College, London, Gerd van Reil (Catholic University of Leuven) presents Plato's Gods.


 
Heminway on Enron Joan MacLeod Heminway (The University of Tennessee College of Law) has posted Enron's Tangled Web: Complex Relationships; Unanswered Questions (University of Cincinnati Law Review, Vol. 71, p. 1167, 2003) on SSRN. Here is the abstract:
    This essay originally was presented orally at the University of Cincinnati College of Law's Sixteenth Annual Corporate Law Symposium. The essay describes corporate agency and agency-related relationships as implicated in the "Enron affair" and explores ways in which the Sarbanes-Oxley Act of 2002 fails or attempts to address the alleged malfunctions in these relationships. The essay concludes that the reforms enacted in Sarbanes-Oxley provide little assistance in resolving agency and agency-related problems associated with Enron's public misstatements and omissions. Ultimately, the essay exhorts scholars and practicing lawyers to work together to resolve these problems through (among other things) additional research into cognitive and behavioral science and direct client assistance both in the decision making process and in the search for and selection of corporate directors and officers.


 
Bell on Copyright as Redistribution of Wealth Tom W. Bell (Chapman University School of Law) has uploaded Authors' Welfare: Copyright as a Statutory Mechanism for Redistributing Rights (Brooklyn Law Review, Vol. 69, p. 229, 2003) on SSRN. Here is the abstract:
    Copyright exhibits means and ends remarkably similar to those of social welfare programs. Yet discussions about copyright do not tend to echo discussions about welfare. This paper examines that interesting contrast. It begins by comparing social welfare policy to copyright policy, uncovering several material parallels. Both welfare and copyright primarily aim to correct the market's failure to sufficiently support a particular class of beneficiaries. Both encourage rights-based claims to the entitlements that they create, too. The welfare system and the copyright system each uses statutory mechanisms to redistribute rights - rights to wealth in the first instance, rights to chattels and persons in the second - from the general public to particular beneficiary classes - the poor and authors, respectively. Each also includes special exceptions designed to avoid inefficient or inequitable redistributions. The charitable gift deduction and other tax code provisions limit the welfare system's scope, whereas copyright law offers fair use and other defenses to infringement claims. Perhaps those and other similarities between welfare and copyright mean little. After considering various critiques, however, the paper concludes that we can learn important lessons from understanding copyright as a statutory mechanism for redistributing rights. Most notably, understanding copyright as a form of authors' welfare suggests the need for, and potential shape of, reforms to end copyright as we know it.
Why not copyright as theft, Tom?


 
Call for Papers: Roman Virtues and Vices
    CALL FOR PAPERS Roman Virtues and Vices Organizers: Karla Pollmann, St Andrews; Eric Casey, Sweet Briar College; William Harris, Columbia University; Brad Inwood, University of Toronto; Robert A. Kaster, Princeton; David Konstan, Brown University; Irmgard Männlein-Robert, Würzburg; Matt Roller, Johns Hopkins; David Wray, University of Chicago. The cultural centrality and conceptual rigor of ancient “virtue language” provides a rich ground for exploring notions, representations and transformations of ancient virtues and vices. In the last decade or so, “virtue ethics” has become an increasingly prevalent avenue of investigation in modern ethical reflections, focusing on aretaic concepts of excellence and (in fewer cases) their opposites, and on the moral character and motives of actions. This new departure within ethical philosophy, which is influenced by Aristotle but has so far hardly taken any Latin texts into account, will provide the questions to be considered in the panels of the proposed colloquium and may also be challenged by papers. The colloquium focuses on Roman culture, from the beginnings of Latin literature through Late Antiquity, including early Christianity. It aims at contextualizing the academic conversation about virtue ethics in a new way by paying more attention to ancient social contextsfor example, through examining and questioning the specific “Romanness” of given ethical values, as well as their relation to Greek culture. Interdisciplinary approaches are encouraged, especially those involving philosophy, history with its subdisciplines, as well as linguistic and literary investigations. Junior scholars are welcome. For the APA meeting in 2005 we solicit papers on the following topic: Roman Virtues, Vices & the Literary Imagination At the 2005 meeting, the panel will explore literary concepts of selfhood. We invite authors to employ various forms of literary criticism and to consider the interaction between the written representation and the manipulation of a value as they address the following questions: how do the demands of working within traditional literary genres constrain (or enable) the representation of current ethical concerns? how can we tell what impact those demands are having? what roles do the concerns of virtue ethics play in Roman literary culture of the early empire, with its largely 'rhetorical' character? For the APA meeting in 2005, abstracts (no more than 800 words) are due by February 3, 2004. Submit abstracts, by email (preferred) or as hard copy with disk, to Irmgard Männlein-Robert (irmgard.maennlein@mail.uni-wuerzburg.de), Wuerzburg University, Institut für Klassische Philologie, Residenzplatz 2, 97070 Wuerzburg, Germany. Abstracts will be judged anonymously by two referees.


 
Conference Announcement: Environmental Virtues
    Society for Applied Philosophy Workshop February 6th, 6pm to 8pm. Environmental Virtues Chair: Phil Cole, Middlesex University Speaker 1: James Connelly, Southampton Institute Speaker 2: Eccy de Jonge, Open University Room 349, Senate House, University of London, Malet Street, London WC1. Nearest tube, Russell Square. All welcome. Further details from Phillip Cole on p.cole@mdx.ac.uk. Dr Phillip Cole Reader in Applied Philosophy Middlesex University White Hart Lane London N17 8HR 020 411 6243 p.cole@mdx.ac.uk


 
Conference Announcement: Values and Virtues
    Values and Virtues: Aristotelianism in Contemporary Ethics Provisional Conference Timetable Friday 30 April 2004 1100 on: Arrivals, registrations 12-1320 Plenary session 1: Theodore Scaltsas (University of Edinburgh) Chair: Timothy Chappell 1330-1450 (a) Talbot Brewer (University of Virginia) Virtues we can share: friendship and Aristotelian moral theory (b) Soran Reader (University of Durham) Aristotle on necessities and needs 1515- 1645 (a) Christopher Coope (University of Leeds) Anscombe to Hursthouse (b) James Williams and Rachel Jones (University of Dundee) 'Values and Virtues in Nietzsche and post-Nietzschean thought' Chair: Sandrine Berges 1700-1830 Keynote address: Christine Swanton (University of Auckland) Can Nietzsche be both an Existentialist and a VIrtue Ethicist? 1900 Conference dinner at Discovery Point Saturday 1 May 2004 0900-1020 (a) Glen Koehn (Wilfred Laurier University) Human Goodness and the Golden Mean Chair: Lloyd Fields (b) Timothy Chappell (University of Dundee) Ethics as first philosophy: the unity of the moral and intellectual virtues 1040-1200 Plenary session 2: John Skorupski (University of St Andrews) Virtue as part of well-being 1300-1420 Plenary session 3: Antony Duff (University of Stirling) 'The Virtues and Vices of "Virtue Jurisprudence" 1430-1550 (a) Karen Stohr (Georgetown University) Practical wisdom in Sense and Sensibility (b) Michael Brady (University of Stirling) 1600-1720 Plenary session 4: Paul Russell (University of British Columbia) Hume on virtues and capacities Chair: Michael Wheeler Sunday 2 May 2004 0900-1020 (a) Nafsika Athanassoulis (University of Leeds) Virtue Ethics Under Attack: Doris, Harman and the personality psychologists Chair: Dory Scaltsas (b) Hallvard Fossheim (University of Oslo) Aristotle on learning to be good: habituation by mimesis Chair: Stephen Halliwell 1040-1200 Plenary session 5: Sarah Broadie (University of St Andrews) 1300-1420 (a) Sandrine Berges (University of Bilkent, Turkey) The Hardboiled Detective as Moralist: Ethics in Crime Fiction Chair: Karen Stohr (b) Christian Miller (Notre Dame) Volitional Impossibility 1430-1550 Plenary session 6: Adam Morton (University of Oklahoma) Moral Incompetence Chair: Linda Zagzebski 1600-1720 (a) Jeff Seidman (LSE) Two sides of 'silencing' (b) Johan Braennmark (University of Lund, Sweden) Like the bloom on youth: how pleasure completes our lives 1750-1900 Plenary session 7: Linda Zagzebski (University of Oklahoma) Exemplars of virtue and the good life Chair: John Skorupski 1900 Conference ends To register for the conference, simply send a cheque for £70 (before March 1) to Dr Timothy Chappell at the University of Dundee, Nethergate, Dundee, Scotland DD1 4HN, stating whether you are a vegetarian or have any other special requirements. Courtesy of the Analysis Trust, graduate students are eligible for a subsidised registration rate, and should enquire about this to Dr Chappell. Further details at http://www.dundee.ac.uk/philosophy/ (follow the links to 'EVENTS' and 'CONFERENCES ORGANISED BY THE DEPARTMENT') Senior Lecturer in Philosophy, University of Dundee Head of Department Honorary Treasurer, The Mind Association Honorary Secretary, The Scots Philosophical Club Reviews Editor, The Philosophical Quarterly


Wednesday, February 11, 2004
 
Wednesday Workshops Here are today's talks:
    At University College's famous Colloquium in Legal and Social Philosophy, London, Jo Wolff (University College London) presents Dealing with Disadvantage. I always profit from Wolff's work. Here is an excerpt:
      This paper concerns two related questions: first, how can we define disadvantage in a way which accepts the irreducible diversity of disadvantage while allowing the possibility of making overall judgements of relative disadvantage? Following this, we want to ask how a broadly egalitarian society can best attempt to rectify disadvantage, so understood. The framework of this paper draws together work from philosophy and political science, and attempts to bridge the gap between theory and practice. In Section II of the paper, drawing on the work of Sen, we develop a pluralist understanding of disadvantage. However, further reflection shows that the concept of risk is central to the understanding of disadvantage, and, further, that different dimensions of disadvantage can often be linked together through the idea of risk: disadvantage in one dimension often exposes an individual to risks in another dimension. We therefore offer a way to marry Sen’s theory with our findings about risk and disadvantage. Armed with this understanding we look, in Section III, at the question of how to find out who the least advantaged are. Is this necessary? We explore the appealing suggestion that if disadvantage is plural we can leave policy making to what has been called ‘local justice’ (here we prefer the term ‘sectoral justice’) with many agencies each dealing with a different dimension of disadvantage. We reject this as insufficient, though an important component in any final view, and so we propose a way of determining which group or groups in society are most disadvantaged. Finally, in Section IV, we apply our findings to public policy. Relying on the connection between disadvantage and risk we set out an account of how government can act to provide an appropriate division of labour between central government and sectoral justice. An extremely welcome side-effect of this analysis is that it becomes clear that a commitment to helping the disadvantaged also requires the ending of entrenched privilege, the bugbear of the theory of social equality.
    At Yale's philosophy series, Zena Hitz presents THE RULE OF LAW IN PLATO'S STATESMAN.
That's it for today!


 
Esty and Geradin on Regional Trade Agreements & Environmental Protection Daniel C. Esty and Damien Geradin (Yale Law School and University of Liege) have posted Market Access, Competitiveness, and Harmonization: Environmental Protection in Regional Trade Agreements (Harvard Environmental Law Review, Vol. 21, pp. 265-336, 1997) on SSRN. Here is the abstract:
    This paper seeks to examine the relationship between trade liberalization and environmental protection with an eye toward alleviating conflicts between these important policy goals and making them more mutually reinforcing, especially in the context of regional trade agreements. Part I spells out and categorizes the various concerns that the parallel pursuit of trade liberalization and environmental protection has raised. Part II suggests a taxonomy of the responses that can be used to address the concerns outlined in Part I. The nature and characteristics of these tools and strategies vary considerably, consistent with the diverse set of trade/environment tensions to which they respond. Such tools range from a laissez-faire approach to differences in environmental standards among jurisdictions in a free trade regime to total harmonization of environmental regulations. Part III applies the theoretical framework outlined in Parts I and II to two regional trade agreements, the European Community (the EC) and the North American Free Trade Agreement (the NAFTA). It examines the extent to which the trade and environment concerns discussed in Part I have arisen in these two agreements, as well as the degree to which the responses discussed in Part II have been used to address these concerns. Part IV discusses the extent to which the experience of regional trade systems could be used to deal with trade and environment issues arising in the context of the World Trade Organization (the WTO). Finally, Part V offers some general conclusions.


 
Ku on States and International Law Julian Ku (Hofstra University School of Law) has posted The State of New York Does Exist: How the States Control Compliance with International Law (North Carolina Law Review, Vol. 82, p. 457, 2004) on SSRN. Here is the abstract:
    Although most courts and commentators presume that the states disappear when it comes to foreign relations, states actually play a crucial role in fulfilling U.S. obligations under international law. In many circumstances, state governments are the only institutions responsible for carrying out treaty and customary international law obligations on behalf of the United States. Not only have states always played this role, but state control over the implementation of such obligations is likely to become even more important in the future because the implementation of many private international law and international human rights treaties is controlled by the states. This role for states in controlling compliance with international law calls into question the widely held view that exclusive federal control over foreign relations is required or desirable. This Article suggests state-controlled implementation could actually bolster the development of international law.


 
Call for Papers: Nietzsche and Ethics
    NIETZSCHE AND ETHICS 14th Annual Conference of the Friedrich Nietzsche Society University of Sussex, Brighton, UK 10th-12th September 2004 CALL FOR PAPERS One writer has called Nietzsche's On the Genealogy of Morality 'the most important piece of moral philosophy since Kant.' Certainly, the critique of morality advanced in the Genealogy and other works continues to exert a profound influence today - not least in calling into question the very possibility of moral philosophy itself. The aim of this conference is to trace some of the lines of force of this influence. We are interested not only in exploring Nietzsche's own thinking about ethics and morality throughout the entirety of his works, but also in bringing his work into dialogue with other thinkers, both ancient and modern, and with contemporary concerns and debates. Confirmed Plenary Speakers Maudemarie Clark (Colgate University) Rosalyn Diprose (University of New South Wales) Volker Gerhardt (Humboldt-Universit t zu Berlin) Brian Leiter (University of Texas at Austin) Henry Staten (University of Washington) Suggested themes: a.. Nietzsche's critique of morality b.. Nietzsche and virtue c.. Genealogy and ethics d.. Immoralism e.. Value and revaluation f.. The body in Nietzsche's ethical thought a.. Ascetic ideals b.. Nietzsche and the ethical tradition: Aristotle, Kant, Mill, Levinas, etc. c.. Good and evil in Nietzsche's thought d.. Nietzsche and feminism e.. Solitude and community in Nietzsche's ethics f.. Self-overcoming and the bermensch g.. Nietzsche's moral perfectionism Proposals together with an abstract of no more than 500 words should be sent by 1st March 2004 by email to: S.Gillham@sussex.ac.uk Copy to F.Hyde-Thompson@sussex.ac.uk Or by mail to: FNS CONFERENCE, Felicity Hyde-Thompson, Arts B259, University of Sussex, Falmer, Brighton, BN1 9QW, UK. Further details about the conference will be available shortly on the FNS website www.fns.org.uk


 
The Halftime Show Well, I thought I could avoid posting on it, but there is, of course, a serious issue addressed by "Keep the FCC out of the Halftime Show by Anthony Gregory.


Tuesday, February 10, 2004
 
Sandvig on Architecture and Regulation of the Internet I've just read Christian Sandvig (University of Illinois, Urbana-Champaign) Shaping Infrastructure and Innovation on the The End-to-End Network that Isn't. Here is a taste:
    It is seductively easy to conceptualize technical, social, and legal mechanisms of control as different sorts of levers one can pull to steer the Internet (Clark et al. 2002). Writing in the end-to-end debate has pointed out the prevalence of technical control, and it has also called for more social (and even legal) control as a better 'balance.' In fact, what seems like 'technical' control is nothing new. The technical, social, and legal always interpenetrate, and there is no way to guarantee technical control in the present Internet without some assertion of control, by an owner or by a government.
    The process of network design should continue to include considerations of transparency, participation, and flexibility, but these should be explicit goals, and not pursued under the rubric of technical correctness or the end-to-end argument. Furthermore, the legitimate public policy role for governments lies not in protecting the Internet against those who would 'break' it. This is merely a grant of authority to whomever is designated to interpret the Internet’s fundamental nature and to write its history. Reflecting on the Internet’s boon to innovation provides a logical rationale for regulating transparency and participation. This is not a new role for government, even with respect to the Internet.
Very provocative!


 
Tuesday Workshops Here is the roundup of workshops and talks from hither and yon:
    At Oxford's Jurisprudence Discussion Group, Dimitrios Kyritsis presents Fussy People and the Limits of Authority.
    At the University of Chicago's law and economics series, Michael Heller (Columbia University Law School) presents The Art of Land Assembly coauthored with Rick Hills.
    At the London School of Economics, Centre for Philosophy of the Natural and Social Sciences, Marcello Pera (Pisa) presents Multiculturalism and the 'Open Society': A Popperian Approach.
    At the University of Texas, Joni Hersch (Harvard) presents Jury Demands and Trials.
    Update: At George Mason, Fred McChesney presents What’d I Say?: Coase, Demsetz and the Unending Externality Debate.


 
Bernstein on the Freedom of Speech and Anti-Discrimination Laws David Benstein (George Mason University School of Law) has posted Defending the First Amendment from Antidiscrimination Laws on SSRN. Here is the abstract:
    Of late, leading legal scholars have argued that the First Amendment should not stand in the way of restrictions on freedom of expression intended to alleviate discrimination. A powerful, normative defense of the First Amendment from the competing claims of the antidiscrimination agenda is therefore greatly needed. This Essay, based on several chapters of You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato Institute 2003), seeks to provide the outlines of such a defense. Part I of this Essay argues that an unregulated marketplace of ideas is preferable to government restrictions on freedom of expression, not because the marketplace of ideas is efficient and always leads to benign results, but because the alternative of government regulation is far worse. Part II of this Essay defends the ability of judges to enforce a relatively neutral conception of freedom of expression from Stanley Fish and others who argue that "there is no such thing as free speech." Fish and his allies ignore cultural and social incentives and restraints that prevent judges from simply voting in favor of their preferred political outcomes. Part III of this Essay critiques scholars who argue that courts should tolerate partial restrictions on freedom of expression until certain egalitarian goals are met. Such views rely on a naive conception of politics that bears little relation to how political markets actually work. Part IV of this Essay argues that if the courts were to allow the First Amendment to be subordinated to antidiscrimination concerns, authoritarianism would inexorably follow - a conclusion supported by experience with speech restrictions on college campuses and, recently, in Canada. This Essay concludes by pointing out that those legal scholars who are most eager to restrict the First Amendment are ironically among those most in need of its protections.


 
Call for Papers: Evil, Law and the States
    1st Global Conference Evil, Law and the State Wednesday 14th to Saturday 17th July 2004 Mansfield College, Oxford, United Kingdom CALL FOR PAPERS (Please cross-post where appropriate) This inter-disciplinary and multi-disciplinary conference seeks to explore issues surrounding evil and law, with a focus on state power and violence. Perspectives are sought from those engaged in any field that touches on the study of law and legal culture: anthropology, criminology, cultural studies, government/politics, history, legal studies, literature, philosophy, psychology, religion/theology, and sociology, as well as those working in civil rights, human rights, prison services, politics and government (including NGOs), psychiatry, health care, and other areas. Papers, reports, work-in-progress and workshops are invited on issues related to any of the following themes:
      * when and why is law evil or a source of evil? * state violence and coercion * justifications for punishment, including capital punishment * whether and under what circumstances the adversary or inquisitorial models of legal process generate, tolerate, or allow evil outcomes * issues of distributive justice in law, including distributing the costs of legal error * the intersection of law with issues of choice, responsibility, and diminished responsibility * state responsibility for terrorism, war, intervention, ethnic cleansing, and other problems of international law and international relations
    Papers will be considered on any related theme. 300 word abstracts should be submitted to both the Organising Chairs; abstracts may be in Word, WordPerfect, PDF or RTF formats, and must arrive no later than Friday 19th March 2004. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 28th May 2004. Papers should be submitted to; Professor John Parry Associate Professor of Law, University of Pittsburgh School of Law, Pittsburgh, USA Email: Parry@law.pitt.edu Dr Rob Fisher Inter-Disciplinary.Net Oxfordshire, United Kingdom Email: rf@inter-disciplinary.net The conference will likely consist of roughly 30-35 people grouped primarily in consecutive panels so that each person may hear and respond to each paper. Non-presenters are welcome to attend and participate as well. 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


 
Feldman on Biometric Technology Implementation Robin Cooper Feldman (University of California Hastings College of Law) has posted Considerations on the Emerging Implementation of Biometric Technology (Hastings Communications and Entertainment Law Journal, Forthcoming). Here is the abstract:
    Biometrics is the science of identifying people based on their physiological and behavioral characteristics. Although biometric science could revolutionize the process of identification, it also raises concerns that should be considered as we enter into more widespread use of the technologies. Concerns about biometrics are particularly important in light of the federal government's project to implement biometric technologies at all points of entry by the end of 2004. Much of the discussion surrounding implementation of biometric technology involves developing rules to ensure reliability of the systems and create appropriate restrictions on the use of the data. This article argues, however, that regardless of how much we invest in establishing standards for reliability of the technology and protections of the data from fraud or improper use, no system will be foolproof. Biometric determinations will be subject to mistakes, fraud, and abuse through human and technological error, both intentional and inadvertent. As a result, we should take this opportunity to develop methods for individuals to review and challenge biometric determinations. In particular, the article suggests a doctrinal framework for challenges to biometric determinations made by administrative agencies.


 
Conference Announcement: Politics and Emotions
    Politics & Emotions International Conference 16-18 April 2004 University of the West of England, Bristol, UK The Centre for Critical Theory (CCT), the Centre for Psycho-Social Studies (CPSS) and the School of Politics at UWE announce a major conference on Politics and Emotions. This international interdisciplinary conference will explore both the emotions involved in politics and the politics of the emotions themselves The plenary speakers include Elisabeth Young-Bruehl, author of two award-winning biographies, Hannah Arendt: For Love of the World (1982) and Anna Freud: A Biography (1988), is a psychoanalyst in private practice in New York City. She has authored many other works including the acclaimed The Anatomy of Prejudices (1996). Jack Barbalet is a leading researcher and theorist of the social and political significance of emotions. He has published extensively on this theme, including the pathbreaking Emotions, Social Theory and Social Structure: A Macrosociological Approach (1998). He is currently Professor of Sociology at the University of Leicester, where he is Head of Department. James M. Jasper is an independent scholar living in New York City. He has taught at Berkeley, Columbia, Princeton, and New York University. His works on politics and emotions include The Art of Moral Protest (1997) and the co-edited volume, Passionate Politics (2001) Susan James is Professor of Philosophy at Birkbeck College, University of London. Her areas of research are early modern philosophy, political philosophy and feminist philosophy. Her recent publications include Passion and Action: The Emotions in Seventeenth-Century Philosophy (1999). Oneof her current projects is an exploration of the place of the emotions in political philosophy. Call for Papers Here are just some of the themes on which contributions would be welcome: Reason and passion Affect and social and political mobilization The emotions and democratic deliberation The politics of fear and insecurity The dynamics of political violence Structures of feeling/abiding affects Embodied and disembodied politics Intra- and inter-group dynamics and the struggle for recognition Care, empathy and oppression The therapeutic state and its discontents If you would like to propose a paper, send your name and affiliation, paper title and 250 word abstract to Centre for Critical Theory, Faculty of Humanities, Languages and Social Sciences, University of the West of England, Frenchay, Bristol, BS16 1QY, UK or by email to cct@uwe.ac.uk Practical Details The conference fee is £145 (£70 for postgraduates and the unemployed). If you want to come for a day, the day rate is £50. This includes coffee, lunch, tea and the conference dinner. Registration forms are available by post from CCT, from its website or from Julia Long, Centre for Psycho-Social Studies, Faculty of Humanities, Languages and Social Sciences, The University of the West of England, Coldharbour Lane, Frenchay, Bristol, BS16 1QY. Accommodation is not provided. Details of a range of options is available on the website or on request Further Information For further details, see the CCT website at www.uwe.ac.uk/research/centres/cct/ or contact Julia Long, Research Administrator for CPSS (julia.long@uwe.ac.uk) For questions about paper proposals, contact the co-organizers: Paul Hoggett (paul.hoggett@uwe.ac.uk) or Simon Thompson (simon.thompson@uwe.ac.uk)


 
Felsenfeld on the Bank for International Settlements Carl Felsenfeld (Fordham University - School of Law) has posted The Role of the Bank for International Settlements in Shaping the World Financial System on SSRN. Here is the abstract:
    The Bank for International Settlements (BIS)was set up in Basle, Switzerland in 1923 to handle remaining financial issues from World War II largely having to do with German reparation payments. It was the first of the semi-public international banks. Over the years its functions have changed and, largely since the late 1970s, it has served as the situs for the world's central banks and financial regulators to pool their thinking and deal with international financial issues. A group of committees composed largely of representatives of central bankers now meet at BIS and have been issuing memoranda and drafts of regulations on a number of subjects affecting international banking. Among these are the regulation of capital, the management of international conglomerates and problems resulting from electronic banking. Problems in world banking have sensitived observers to the absence of coordinated regulation and to the need for some form of unified control. That there is a need for one international bank regulator is increasingly acknowledged. BIS in Basle comes closer than any other organization to fulfilling this function. The International Monetary Fund comes close but is too politicized and has been too involved in attempting to meet a continuing series of crises to do any long range thinking. Only BIS has attracted the intellectual resources to analyze and resolve international problems in a thoughtful and deliberate manner. And only the BIS output is being adopted in the world's banking centers. BIS has been proposed as a world senior financial regulator. The article acknowledges the rationale for such a decision but argues that now is not the time for such an attempt. Banking is, of course, conducted locally even though its reach is international To anoint any body as a senior regulator with the power to impose its rules would require a massive set of compromises among national regulations in order to achieve one central set of rules. It would also essentially involve an abdication of measures of sovereignty by the constituent states. An effort of this kind would risk destroying the whole concept. Rather than start such a bold stroke at such an inopportune time, the article argues that the international banking world would fare far better assisting BIS to proceed down the track it is already on. As it continues to mature and as its edicts are increasingly accepted throughout the world it will continue to approach its rightful place as the world's bank regulator.


Monday, February 09, 2004
 
Conference Announcement: Remand Orders
    “We’ve Only Just Begun: The Impact of Remand Orders on American Jurisprudence.” Arizona State Law Journal Symposium Friday, February 13, 2004
      9:00 Check In 9:10 Welcome Mark Candioto, Arizona State Law Journal Editor in Chief. 9:15 Introductions and Opening Remarks- Professor George Schatzki, ASU College of Law. 9:20 Introduction to Impact of Remand Orders Professor Michael Berch, Arizona State University 9: 45 “Don’t Think Twice, It’s All Right”: Remands, Federal Sentencing Guidelines & The Protect Act- A Radical “Departure”? Jon Sands, United States Public Defender 10:30 5 minute break 10:35 “Compliance without Remands: The Experience under the European Convention on Human Rights.” John Sims, Professor of Law, University of the Pacific, McGeorge School of Law 11:15 “Gaming the GVR” Professor Shaun Martin, University of San Diego 12:00 Lunch 12:30 “The Need to Clarify the Meaning of U.S. Supreme Court Remands: The Lesson of Punitive Dames Cases.” Professor Erwin Chemerinsky, University of Southern California Ned Miltenberg, Center for Constitutional Litigation 1:15 “Of Gift Horses and Great Expectations: Remand without Vacatur in Administrative Law” Dean Daniel Rodriguez, University of San Diego 2:00-3:00 Final Panel Discussion The final panel discussion will feature Justice Rebecca White Berch, Arizona Supreme Court in addition to the presenters.
    This is quite a lineup!


 
When Resources Aren't Priced or How I Spent Monday Morning Like most universities, the University of San Diego provides free email service for students and faculty. I'm sure that many users think that this is a blessing, but from my perspective it is a terrible curse. I'm a heavy email user. As you might guess, I send and receive many large text files. Students send me their papers. Colleagues at USD and elsewhere send draft articles. I coordinate a variety of conferences and symposia. I do a fair amount of peer reviewing. And I'm on the road quite a bit, not to mention commuting from San Diego to Los Angeles. For me, email is a great boon. I organize email in multitudinous folders, and save email with attachments for current projects. It's not uncommon for me to receive 2 to 5 megabytes of new email (consisting mostly of attachments) in a single day.
But email at the University of San Diego is free. This could lead to a problem. Users might never delete any old email. So what is the alternative to price-based rationing? The answer, of course, is a quota. (More pejoratively, we might call this "command and control"!) I'm allowed 20 megabytes of email storage. This means that I need to spend several minutes every day deleting old email to make room for the new. And it also means that I can't store email on the server. And that means that I occasionally waste time, because I don't have a file where I need it when I need it.
So what did I do? I emailed the help desk requesting that my email quota be expanded to 100 megabytes. Last year, hard disk storage cost about $1 per gigabyte. So I requested that I be allocated 100 megabytes worth of storage--10 cents worth of storage. Of course, the help desk could not simply grant my request. It was passed on to a very nice guy who is the email administrator. He emailed me some questions about my request which I answered. He asked for permission to poke through my email to see if I was making wise decisions about what I was keeping and what I was deleting. We went back and forth several times. Finally, he determined that the best solution was for he and I to work through all of my email so that I could get my usage well below 20 megabytes. At that point, I began to get just a little bit irritated. My time is worth something. I suggested that we speak on the phone. Even after a detailed explanation of my situation, the administrator could not offer 100 megabytes, but he was willing to give me an additional twenty megabytes (two cents worth of storage). He then suggested that we could have further conversations and negotiate additional storage as I needed it. I offered to pay for additional storage out of my own pocket, but of course that was not an option!
If email storage were priced, I could get the storage capacity that I need to do my job. I would happily pay for this out of my own pocket if necessary--although I imagine that I could use my research account for this purpose. Because email storage is free, I cannot get storage I need.
Email storage capacity is what economists call a "private good." Consumption of email storage is rivalrous--if I use a megabyte, you can't use that same megabyte. Email storage is excludable: the email administrator can prevent me from using more than my quota--as I learn every few days when my email starts bouncing. When a private good is made free, the piper must be paid.
Update: I priced RAID storage. Based on a very limited sample, it appears that RAID is available at about one cent per megabyte assuming 12x redundancy--considerably more expensive than ordinary hard disk storage. A reader points out that tape backup storage is also required, adding additional cost. I'm sure someone out there knows the true cost of 100 megabytes of storage. Email me if you do!


 
Weekend Wrap Up On Saturday, the Download of the Week was a paper by Matt Adler on risk assessment and the Legal Theory Bookworm recommended Michael Dorf's Constitutional Law Stories. On Sunday the Legal Theory Lexicon entry was on "Intention" and the Legal Theory Calendar previewed the weeks talks, workshops, and conferences.


 
Monday Workshops Here is the roundup of workshops and talks for today:
    At the University of Chicago's Political Theory Workshop, Jason Frank, Northwestern University, presents Spaces of Insurgent Citizenship: Theorizing the Democratic-Republican Societies with discussion by Deva Woodly.
    At George Mason's Workshop in Philosophy, Politics and Economics, Adam Chacksfield (Department of Political Science, Western Illinois University) presents Ethical Frames for Drug Policy and the Salience of Competing Bodies of Knowledge.
    At New York University, Andy Schotter (Economics NYU) presents Decision Making With Naïve Advice.
    At Princeton's Law and Public Affairs series, Mark Tushnet (Georgetown University Law Center) presents Social Welfare Rights and the Forms of Judicial Review. Tushnet is always good!
    At the University of Texas, Kip Viscusi (Harvard) presents Punitive Damages: How Judges and Juries Perform.
    At Loyola Marymount University, Brietta Clark (Loyola Marymount) presents Does Title VII's Ban on Gender Discrimination Require Employers to Provide Prescription Contraception, Infertility Benefits, and Other Treatment Related to Reproductive Health?
    At Oxford's Moral Philosophy Seminar, Keith Hyams (Linacre College, Oxford) presents Justice and Consent: When is a Deal a Fair Deal?.
    At the University of Arizona's philosophy series, Imogen Dickie (Philosophy, Oxford University) presents Looking for Things to Talk About. Refreshing honesty in the title!


 
Fagan on Maturity Heuristics Jeffrey Fagan (Columbia Law School) has posted Atkins, Adolescence and the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment (New Mexico Law Review, Vol. 33, No. 2, pp. 207-54, 2003) on SSRN. Here is the abstract:
    In Atkins v. Virginia, the U.S. Supreme Court held that mentally retarded people lacked a range of developmental capacities that were necessary to establish the higher threshold of culpability for the execution of murderers in the Court's death penalty jurisprudence. The Court emphasized that the impairments of mental retardation lead to a . . . special risk of wrongful execution. The Court had previously concluded that the limitations in developmental capacities that characterize mentally retarded defendants also characterize a significant proportion of adolescent offenders. These parallels invite an extension of the Atkins Court's reasoning to juveniles by highlighting the diminished capacity for culpability common to offenders of both groups. This Article addresses the logic and substance of an extension of Atkins to juveniles. Extending Atkins to juveniles requires analyses showing that: (a) many of the developmental characteristics that establish the diminished culpability of the mentally retarded also characterize adolescents, (b) the age-specific competencies for adolescents that define maturity and in turn culpability can be identified and then reliably measured, and (c) the age at which adolescents attain these competencies and when their developmental trajectory begins - that is, the age at which adolescent development measurably departs, both substantively and permanently, from the stable and flat developmental trajectories of the mentally retarded. The Article discusses recent evidence on the developmental capacities of adolescents showing that that many of the same deficits in cognitive and neuropsychological developmental that define retardation also are common markers of adolescence, and elements of immaturity long recognized in death penalty jurisprudence: diminished capacities to (a) understand and process information, (b) learn from experience and mistakes, engage in logical reasoning, (c) foresee the consequences of their actions, (d) control impulses, (e) understand the reactions of others, and (f) resist peer influence. Accordingly, the Article begins by decomposing the diagnostic category of retardation into specific dimensions of underdevelopment. Next, the Article analyzes the correspondence of these dimensions of underdevelopment among the retarded to legal standards about immaturity and culpability of adolescents. If children are in fact less formed developmentally than adults, they lack full capacity and therefore are less culpable than adults. Empirical research shows that a significant number of juveniles have a pattern of developmental and cognitive incapacities that places them well below the threshold of culpability that also exempts the mentally retarded under Atkins. In addition, adolescents will vary in the age when they realize these threshold developmental competencies that constitute maturity and in turn culpability, complicating attribution of full culpability to adolescents at the higher threshold set in death penalty jurisprudence. Recent evidence also suggests that brain development in areas controlling the developmental components of maturity may be incomplete at age 18 or beyond. The Article concludes because defendants with diminished competence and culpability, like the mentally retarded, are immature at age 18 and beyond, that there is sufficient evidence in social science to create a categorical exemption from capital punishment for adolescents who commit murders before the age of 18. The alternative - creating exempted categories such as the immature - invites disputes about how to reliably establish membership. Such classifications will be unreliable and inevitably suffer from the subjective risks of misdiagnosis, testing error, instrument unreliability, or other limits of behavioral science. To ignore the logic of Atkins elevates the risk of an erroneous attribution of cognitive and volitional maturity to a seemingly competent adolescent whose developmental reality may be exactly the opposite, raising the terrible risk of a death sentence where it is not deserved.


 
Call for Papers: Philosophy Against Empire
    Call for Papers "Philosophy against Empire" 6th Biennial Conference Radical Philosophy Association Howard University, Washington, D.C. (USA) November 4-7, 2004 The RPA Conference Program Committee invites submissions of talks, papers, workshops, roundtables discussions, posters and other kinds of conference contributions, for its sixth biennial conference, to be held at Howard University in Washington, DC In the spirit of collaboration, and in the recognition that radical philosophy is often done outside traditional philosophical settings, we invite submissions not only from philosophers inside and outside the academy, but also from those who engage in theoretical work in other academic disciplines - such as ethnic studies, women's studies, social sciences and literary studies - and from those engaged in theoretical work unconnected to the academy. Also, undergraduate students should consider organizing their own sessions or workshops. We especially welcome contributions from those often excluded from or marginalized in philosophy, including people of color, gays and lesbians, persons with disabilities, poor and working class persons. We also hope for submissions from other nations with social movements against the present global order, and from graduate students, who represent the future of radical philosophy. Conference Theme We live at a time when the imperial designs of the United States have become starkly visible and frighteningly attainable, and it is an empire like none before it. Economically, the United States consumes far more of the world's resources than any other nation, even as its own sales to foreign markets cannot cover this consumption. Thanks to its hegemonic position in the world market, the United States continues to serve as the main engine of growthin the world economy, and the dollar continues to serve as the major reserve currency. Politically and militarily, there have been few periods in world history in which the balance of military power has been so one-sided. The United States claims the moral right to engage in so-called "pre-emptive" wars whenever it wants against whomever it wishes. It either dictates policies to international institutions such as the IMF, UN and the World Bank or ignores them when they do not agree. It walks away with impunity from intellectual agreements it opposes, such as the Kyoto treaty on global warming, or the establishment of an international criminal court. Culturally, corporations from the United States have profoundly affected the way people in other regions of the world eat (McDonald's, KFC), drink (Coke), dress (jeans, Nike), entertain themselves (Hollywood), interpret world events (CNN), and view their own identities. Racially, the United States, like all empires of European descent, has organized the world according to an unfair racial contract that benefits a small minority while impoverishing the vast majority, both globally and within its own borders. Radical philosophers will not formulate moral justifications for the American Empire, as the hegemonic positions in social and political philosophy do, implicitly if not explicitly. Nor will we console ourselves with the belief that U.S. hegemony is the least bad alternative in the amoral realm of power politics. Radical philosophers are philosophers against empire. You do not have to be a long time dues-paying member of the RPA to be part of this struggle. Nor do you have to be a professor or presently enrolled as a student. The RPA welcomes papers and presentations that critique the reality of the American Empire. They may look at racism, class exploitation, male dominance, heterosexism, able-ism and other forms of domination. They may examine the ecological impact of the present global order, speaking for the living creatures and future generations who cannot speak. They may be devoted to constructing feasible and normatively attractive alternatives to empire. Or they may discuss the special pedagogical challenges that arise from attempting to teach philosophy in the present historical context. We have much to learn from each other regarding these and many other topics. Guidelines for Submissions In keeping with the spirit of radical thinking embodied by the RPA, we encourage submissions that employ formats and media that challenge the standard conference presentation. For instance, we urge presenters to use formats that allow for greater interaction between participants and audience (e.g. presenting an outline, rather than reading a paper), and that emphasize collective inquiry (e.g. organizing a workshop). To encourage discussion, papers should be limited to 3000 words. Please note that participants will be selected for at most one presentation (talk, workshop, poster session, etc.) during the conference; submissions should be presented with this in mind. (This limit does not include chairing sessions.) Please submit all and only the following information: Name Address Affiliation, or independent scholar, activist, educator, etc. Title of proposal Nature of proposal (talk, workshop, other) Abstract of 250-500 words only If you would be willing to serve as a session chair, please indicate this on your submission form. Session chairs are responsible for timing presentations, and ensuring that each presenter gets her or his fair share of the available time. Please do NOT submit complete papers. Deadline All submissions must be postmarked by January 31, 2004. Please send paper, workshop, poster, and other proposals to: RPA Program Committee c/o Tony Smith Department of Philosophy 402 Catt Hall Iowa State University Ames, Iowa 50011 USA email: tonys@iastate.edu


 
Halfteck on Class Action Law Enforcement and Inventives to Invest Guy A. Halfteck (Harvard University - John M. Olin Center for Law, Economics, and Business) has uploaded The Effects of Incentives to Invest and the Level of Investment in Class Action Law Enforcement on the Magnitude of Liability for Harm to SSRN. Here is the abstract:
    Class action law enforcement comprises a sequential, multi-stage investment opportunity under conditions of multi-dimensional uncertainty. This general proposition suggests that the myriad aspects of plaintiffs' attorneys' performance in the course of class action law enforcement can be treated and analyzed as sequential options to invest and sequential investment decisions. Thus, the extent to which private agents employ the class action mechanism to enforce the law is contingent upon their incentives to invest and the investment decisions they ultimately make throughout the multi-stage investment sequence. Against this backdrop, this Article examines the compound correlation between (i) the magnitude of private incentives to invest, (ii) the corresponding, aggregate level of investment, (iii) the magnitude of ex ante expected liability for systematic, mass-inflicted risk of harm and, consequently, (iv) the deterrence effects of class action law enforcement. Notwithstanding the observation that the specific properties of this correlation are highly law firm- and context-specific, the analysis generates unambiguous insights into the general properties of this correlation. These insights are germane to making qualitative statements on the existence of discrete, privately-optimal level of investment in class action law enforcement; the existence of discrete social optima; and the efficacy of possible regulatory intervention to bridge the private-social incentive divergence.


 
Strasser on the Treaty Power & Sovereign Immunity Mark Strasser (Capital University Law School) has posted Domestic Relations, Missouri v. Holland, and the New Federalism (William and Mary Bill of Rights Journal, Vol. 12, pp. 179-220, 2003) on SSRN. Here is the abstract:
    Citing Missouri v. Holland and other cases for support, commentators suggest that the treaty power is subject to very few constitutional constraints and that the Court's recent expansion of the 11th Amendment might be circumvented through the use of this power. This article suggests that Missouri v. Holland and the other cases cited to establish the virtually plenary nature of the treaty power might be read much more narrowly than commentators imply and that the Court's current 11th Amendment jurisprudence is likely to inform any interpretation of the breadth of that power. The article concludes that the Court is unlikely to interpret the treaty power in a way which undermines core areas of state sovereignty, regrettable international consequences notwithstanding.


 
Conference Announcement: Kant's Practical Philosophy Reconsidered
    One-day Conference KANT'S PRACTICAL PHILOSOPHY RECONSIDERED Tuesday March 23rd, 2004 University of Kent at Canterbury Invited Speakers: Robert B. Louden (Southern Maine) "Following Impurity" Response: Alan Thomas (Kent) A. W. Moore (Oxford) "Maxims and Thick Concepts" Response: Simon Kirchin (Kent) Philip Stratton-Lake (Reading) "Deontic Reasons" Response: Edward Harcourt (Kent) This one-day conference brings together three prominent Kant scholars to discuss themes in his work and to share recently published or forthcoming work. Cost: 20 pounds, including buffet lunch 10 pounds, inc. lunch, for postgraduates (Please note that we have a limited number of subsidized postgrad places, distributed on a first come, first served basis.) Sponsors: The conference organisers are grateful to the following for their financial support: The Mind Association; The Analysis Trust; and The Kent Institute for Advanced Studies in the Humanities For more details contact: Simon Kirchin: s.t.kirchin@kent.ac.uk Alan Thomas: a.p.thomas@kent.ac.uk


Sunday, February 08, 2004
 
Volokh on Tevrizian Eugene Volokh has posted a version of his op/ed on Judge Tevrizian's opinion striking down section 401(l) of the "PROTECT Act"--the federal statute that requires the Justice Department to report to Congress about cases in which judges depart downwards from the sentencing guidelines. Here is the version in the L.A. Times.


 
Legal Theory Calendar
    Monday, February 9
      At the University of Chicago's Political Theory Workshop, Jason Frank, Northwestern University, presents Spaces of Insurgent Citizenship: Theorizing the Democratic-Republican Societies with discussion by Deva Woodly.
      At George Mason's Workshop in Philosophy, Politics and Economics, Adam Chacksfield (Department of Political Science, Western Illinois University) presents Ethical Frames for Drug Policy and the Salience of Competing Bodies of Knowledge.
      At New York University, Andy Schotter (Economics NYU) presents Decision Making With Naïve Advice.
      At Princeton's Law and Public Affairs series, Mark Tushnet (Georgetown University Law Center) presents Social Welfare Rights and the Forms of Judicial Review. Tushnet is always good!
      At the University of Texas, Kip Viscusi (Harvard) presents Punitive Damages: How Judges and Juries Perform.
      At Loyola Marymount University, Brietta Clark (Loyola Marymount) presents Does Title VII's Ban on Gender Discrimination Require Employers to Provide Prescription Contraception, Infertility Benefits, and Other Treatment Related to Reproductive Health?
      At Oxford's Moral Philosophy Seminar, Keith Hyams (Linacre College, Oxford) presents Justice and Consent: When is a Deal a Fair Deal?.
      At the University of Arizona's philosophy series, Imogen Dickie (Philosophy, Oxford University) presents Looking for Things to Talk About. Refreshing honesty in the title!
    Tuesday, February 10
      At Oxford's Jurisprudence Discussion Group, Dimitrios Kyritsis presents Fussy People and the Limits of Authority.
      At the University of Chicago's law and economics series, Michael Heller (Columbia University Law School) presents The Art of Land Assembly coauthored with Rick Hills.
      At the London School of Economics, Centre for Philosophy of the Natural and Social Sciences, Marcello Pera (Pisa) presents Multiculturalism and the 'Open Society': A Popperian Approach.
      At the University of Texas, Joni Hersch (Harvard) presents Jury Demands and Trials.
      Update: At George Mason, Fred McChesney presents What’d I Say?: Coase, Demsetz and the Unending Externality Debate.
    Wednesday, February 11
      At University College's famous Colloquium in Legal and Social Philosophy, London, Jo Wolff (University College London) presents Dealing with Disadvantage.
      At Yale's philosophy series, Zena Hitz presents THE RULE OF LAW IN PLATO'S STATESMAN.
    Thursday, February 12
      At U.C. Berekely's Department of Philosophy Colloquia, Rosalind Hursthouse (University of Auckland) presents What Does the Aristotelian Phronimos Know?. I heard Rosalind give an earlier version of this extraordinary paper at the University of Canterbury in New Zealand. Very highly recommended.
      At the University of Michigan's Law and Economics series, Steven Walt (Virginia) presents Liquidated Damages After Behavioral Law and Economics.
      At UCLA's tax series, Ed McCaffery (USC Law School) presents Heuristics & Biases in Thinking About Tax.
      At UCLA's Legal Theory Workshop, Barry Friedman (NYU) presents The Importance of Being Positive: The Nature and Function of Judicial Review.
      At the University of San Diego's Law, Economics, and Politics series, Fred Schauer (Harvard's Kennedy School of Government) presents The Tyranny of Choice and the Rulification of Standards.
      At Boston University, Dan Rodriguez (University of San Diego) is presenting.
      At George Mason, Susan Haack (University of Miami Department of Philosophy) presents Trial and Error: The Supreme Court's Philosophy of Science.
      At Harvard's philosophy series, Steve Darwall (Michigan) is speaking. Title anyone?
      At Yale's philosophy series, Matthew Smith presents TWO CONCEPTIONS ON NORM GUIDANCE.
      At the University of Hertfordshire Centre for Normativity and Narrative, Jane Singleton (Hertfordshire) presents Neither Generalism nor Particularism: Ethical Correctness is located in General Ethical Theories.
      At King's College, London, Gerd van Reil (Catholic University of Leuven) presents Plato's Gods.
    Friday, February 13
      At the University of Texas, Nina Pillard (Georgetown) presents The Constitution in Executive Hands.
      At Oxford's Jowett Society, Donald Regan (Michigan) Why Am I My Brother's Keeper.
      At the Royal Institute of Philosophy in London, Michael Wheeler presents Under Darwin's Cosh: Neo-Aristotelian Thinking in Environmental Ethics.
      At the University of Arizona's philosophy series Michelle Mason (Philosophy, University of Minnesota) presents Living Well and Faring Well
      Update: At ASU today, a symposium entitled “We’ve Only Just Begun: The Impact of Remand Orders on American Jurisprudence.”. Participants include Dan Rodriguez (USD), Erwin Chemerinsky (USC), Shaun Martin (USD), John Sims (McGeorge), Michael Berch (ASU), and others.
      At the University of Alabama, John Keown, Georgetown's Kennedy School of Ethics, presents Abortion, Law, History and Ethics.


 
Legal Theory Lexicon: Intention
    Introduction Was it intentional? Did he intend to kill? What was the framer's original intent? "Intention" is an important concept for legal theory. On the one hand, "intention" figures prominently in theories of criminal law and tort law. On the other hand, constitutional theory is interested in the idea of "the original intentions of the framers." This post provides a very rough and ready introduction to the idea of intentional for law students (especially first year law students) with an interest in legal theory.
    A Note on Terminology Legal theory is most concerned with "intentions" of the ordinary sort: "The defendant intended to kill" or "The Framers intended 'commerce' to exclude 'agriculture' in the commerce clause." involve the ordinary legal use of "intention." There are, however, two related philosophical concepts that might be confused with this sense of intention. Philosophers use the word "intentionality" to refer to the ability of mental states to represent things, properties and states of affairs: in this special sense, all mental states are intentional. And philosophers also have a more technical concept of "intensionality"--spelled with an "s" rather than a "t"--that is used to refer to an important logical feature of words and sentences. A sentence is an intensional context if its truth value is sensitive to the substitution of referentially equivalent descriptions: don't worry, the jargon will be explained!. Ordinary intentions exhibit intentionality, intention sentences are intensional--hence the potential for confusion.
    Actions Are Intended Under a Description Jane hears a knock on the door and sees someone in the uniform of a package delivery company with a package. She invites the person in. She does not know that the person she has invited into her home is "the Westside rapist"--a serial rapist who disguises himself. If we ask her, did you intend to let "him" in, her answer will depend on the description we give. Did you intend to let the man in the delivery uniform in? Her answer will be "Yes." Did you intend to let the Westside rapist in? Her answer will be "No." The lesson of this example is that actions are intentional under a description. The very same individual was both "the man in the delivery uniform" and "the Westside rapist," but Jane's intentions were not the same with respect to the two different descriptions.
    Transparent and Opaque Contexts Actions are intentional under a description. Because of that fact, philosophers say that intention is a referentially opaque context. Boy, that is mouthful. What does that mean? Let's take a context that does not involve intentionality. The sentence "The Westside rapist entered Jane's house" does not involve an attribution of an intention. And we can substitute a different description for "Westside rapist" without affecting the truth value of the statement. Assuming that the Westside rapist did enter Jane's house and that his name was Norman Heathcliff, then all of the following statements would be true:
      The Westside rapist entered Jane's house.--True. Norman Heathcliff entered Jane's house.--True. The man in the delivery uniform entered Jane's house.--True. The man on he porch entered Jane's house.--True.
    We can substitute any description that refers to "Norman Heathcliff" and the truth value of the sentence is unaffected. A sentence that has this property is called "referentially transparent" or "an extensional context."
    Now, let's go back to intention. Suppose that Jane lets the man into her house, but does not know that he is the Westside rapist or that he is named "Norman Heathcliff." Truth value now will vary depending on how the man is described :
      Jane intended to let the man in the delivery uniform into her house.--True. Jane intended to let the Westside rapist into her house.--False. Jane intended to let Norman Heathcliff into her house.--False. Jane intended to let the man on the porch into her house.--True.
    But the four descriptions all refer to the same man. Because you cannot substitute referentially equivalent descriptions into expressions of intentions, we say that such expressions are "referentially opaque" or that they are "intensional" contexts. (Notice that intensional was spelled with an "s".)
    The distinction between opaque and transparent contexts is fundamental to the philosophy of language, and this distinction figures prominently in philosophical writing about "intention." This may all sound a bit abstract, but this distinction is worth mastering. If you don't know it, you will not be able to follow any really sophisticated discussion about intention.
    What difference does the distinction between referentially transparent and opaque contexts make to the law? That's a big question, but here is one example. Some theories of constitutional or statutory interpretation assert that questions about the applicability of a legal rule can be settled by reference to the intentions of the authors of the statute. One line of attack on this view focuses on the question whether a collective body (e.g. a legislature or constitutional convention) has intentions in the same sense as does an individual. Putting that objection to the side, the distinction between opaque and transparent contexts can be used to build a different sort of objection. Suppose that we have only one legislator, Rex, and that Rex enacts a legal rule. Now a judge, Solomon, must apply the rule in a case where the meaning of the rule is either vague or ambiguous. Can Solomon simply apply the rule as Rex would intend? In some cases, the answer to this question may be "yes," but not in all. Why not? Because Rex may have intended the rule to apply to the case under some descriptions of the case, but not under others. Boy, that's abstract. Can you make your point more concrete?
    Consider this example. The same Congress that enacted the 14th Amendment's equal protection clause also segregated the schools of the District of Columbia. Suppose that this Congress had the following two intentions: (1) Congress intended that the equal protection clause should prohibit discrimination on the basis of race, and (2) Congress intended that the equal protection clause should not prohibit segregation of the public schools. Now suppose that we believe a third thing: segregation of the public schools is discrimination on the basis of race. Given this situation, the "intentions of Congress" cannot directly settle a particular case, e.g. Brown v. Board of Education. Under one description, Congress would intend that the case should be decided for Brown; under another description, Congress would intend that the case should be decided for the Board. Both descriptions are true of the case.
    Of course, I haven't developed this objection or the possible responses in a deep or thorough way. There is lots more to say. But the point is this. Legal rules are the product of intentional actions. Like all actions, lawmaking is intentional under a description. This means that statements about legislative intentions are referentially opaque. But when we apply a legal rule to a fact situation, we can describe the facts in many different ways. (A vast number of descriptions can refer to any particular legal dispute.) If intentions are to be used to as the basis for interpreting legal rules, it cannot be on the basis of a theory that says only, "Decide the case as the intentions of the lawmaker require." More will be required to make such a theory work.
    Intention and Foreseeable Consequences Does "intending an action" make a difference to either moral or legal responsibility? The distinction between intentional and unintentional action certainly seems to be important to both tort law and criminal law. Tort law differentiates between intentional torts and torts based on negligence or strict liability. Criminal law involves what is called mens rea or the "mental state" that is an element of the crime. In ordinary morality, we differentiate between intentional infliction of harm as more culpable than mere negligence.
    Most law students encounter the problem of foreseeable but unintended consequences in both criminal law and torts. Consider the following examples:
      --Example One: Ben has a gun. He aims at Alice and shoots, hoping to kill her. Her death was what he was trying to accomplish.
      --Example Two: Carlos plants a bomb under the bridge. He wants to destroy the bridge, but he also knows that when he triggers the bomb Dawn is on the bridge right over the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some miracle Dawn would live.
      --Example Three: Edgar is holding Francis and Gertrude captive. When Edgar's demands aren't met, he executes Francis. Edgar regrets that he had to do this, but he believes this is the only way that he will be able to intimidate Francis and Gertrude's employer into paying a ransom for Francis.
      --Example Four: Harry shoots in the air on New Year's Eve. The bullet goes up and comes down, killing Ingrid. Harry did not intend to kill anyone, but he did recognize that there was a small risk that his bullet might strike and injure or kill.
    In all four cases, we can say that one person killed another: Ben killed Alice, Carlos killed Dawn, Edgar killed Francis, and Harry killed Ingrid. But each case differs with respect to intentionality:
      In example one, Ben intended to kill Alice and her death was his end.
      In example two, Carlos intended to blow up the bridge and Dawn's death was a foreseen and very likely consequence of this intentional act, but Carlos did not directly intend to kill Dawn.
      In example three, Edgar intended to kill Francis, but her death was a means to a further end--payment of the ransom.
      In example four, Harry did not intend to kill Ingrid, but his intentional act foreseeably resulted in her death.
    Are these cases alike or different? Morally or legally? Of course, those are big questions, but we can make a little progress on them. Cases one, two, and three are usually considered to be indistinguishable so far as culpability is concerned: in all three cases, the actor intends the death of the victim. Case four is usually considered to be distinguishable from cases one, two, and three: case four involves negligence which may be culpable but is not as blameworthy as intentional killing. Case two--where the Dawn's death is foreseen as highly likely but is not desired--is sometimes said to involve "oblique intention." Even though the death in case two was not directly intended, it is nonetheless the natural and foreseeable consequence of the intended action (blowing up the bridge while someone is on it).
    Trolley Problems In all four cases described above, the action that results in death is clearly wrongful. But that is not so clear in the famous "Trolley Problem." Here is a statement of the problem:
      A trolley is running out of control down a track. In its path are 5 people who have been tied to the track by a mad philosopher. Fortunately, you can flip a switch which will lead the trolley down a different track. Unfortunately, there is a single person tied to that track. Should you flip the switch with the result that one will die instead of five?
    Most philosophers agree that it is morally permissible to flip the switch. The philosopher John Mikhail has done a series of experiments that confirm that most ordinary people agree. If you pull the switch, you act intentionally and you cause the death of the one person. Now consider a second problem, "Organ Harvesting":
      You are a surgeon performing elective surgery on a healthy person. Five other patients are on the verge of death, but could be saved if you killed your healthy patient and harvested her organs. Should you kill your patient?
    Almost everyone (except perhaps some hard-core act utilitarians) agrees that killing the patient is morally impermissible. Both cases involve causing the death of one to save five. But in the "Trolley Problem," you do not directly intend the death; in the Trolley problem, you may hope that through some miracle the one person escapes death. In "Organ Harvesting," on the other hand, the surgeon must intend the patient's death. The organs can only be harvested if the patient is killed. Perhaps it is the intention to kill that makes the difference to our moral intuitions.
    Our discussion of the Trolley Problem has been very brief and superficial. For more, you can follow this link. For our purposes, the point of the trolley problem is to suggest that intention is potentially important to questions of culpability.
    Conclusion Every legal theorist needs a basic mastery of "intention." But this is a very deep topic. If you are drawn to the theory of criminal law or the theory of torts or to constitutional theory or statutory interpretation, you will want to know more about "intent." Hopefully, this entry will get you started.
For a collection of all the Legal Theory Lexicon entires, surf here.


Saturday, February 07, 2004
 
Copybehavior, Copynorms, Copyrights in the UK Over at Displacement of Concepts, Robert A. Heverly has a marvelous post entitled To Copy or Not to Copy. Here is a taste:
    So what's different in UK law as compared to US law? A provision (constitutional or otherwise) allowing general private use. The limited private use rights in UK law are explicitly defined. Fair use as it is understood in the US doesn't exist in the UK; the exception here is called "fair dealing," and it's just much more limited than fair use is. It's been that way; Section 6 of the Copyright Act 1956 (unfortunately not available on the Web), included fair dealing exceptions only for private study, review and criticism, reporting, and a few other esoteric things (like reading a short excerpt from a book in public). The Copyright, Designs, and Patents Act 1988 carries those provisions forward. There's nothing essentially new in it. And what was in the 1956 Act was carried forward from Acts prior to that (actually, finding repealed versions of law here in the UK is a royal pain in the neck, pardon the pun).
Highly recommended.


 
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Constitutional Law Stories, edited by Michael Dorf. Here's the blurb:
    "Constitutional Law Stories" is the latest release from the Foundation Press Law Stories series, which "brings landmark cases to life." Edited by Columbia University law school professor Michael C. Dorf, "Constitutional Law Stories" was written to offer the reader a deeper understanding of constitutional law. The 15 pivotal cases featured in "Constitutional Law Stories" are fascinating and rich in drama – yet they also provide real lessons pertaining to the interpretation of the Constitution. "Constitutional Law Stories" includes well-known cases such as Roe v. Wade, which upheld a woman’s right to choose; Clinton v. Jones, which denied President Clinton temporary immunity from civil litigation, and set the stage for his eventual impeachment; and Korematsu v. United States, which questioned the legality of military orders excluding Japanese-Americans from the West Coast of the United States during World War II. The essays in "Constitutional Law Stories" are written by today’s leading constitutional law scholars, including Daniel Farber, University of California, Berkeley; Samuel Issacharoff, Columbia University; and Mark Tushnet, Georgetown University, among others. In each case, the editor offers in-depth analysis of leading federal constitutional law cases, by providing behind-the-scenes stories, outlining the historical context of each case, and defining the role these cases play in framing fundamental questions about American law and government.
This book is marvelous fun. Highly recommended, especially for students who are taking ConLaw now!


 
Download of the Week This week the Download of the Week is Against 'Individual Risk': A Sympathetic Critique of Risk Assessment by Matthew D. Adler (University of Pennsylvania Law School). Adler's work continues to advance the ball on a set of issues that is absolutely crucial in both theory and practice of administrative law. Here's how I think about it. "Cost-benefit analysis" and its methodological cousins are here to stay. Given that fact, it is crucially important that this methodology be made as supple as possible. In recent work, Adler has focused on the idea for risk--that's the topic of this paper. Here is the abstract:
    "Individual risk" currently plays a major role in risk assessment and in the regulatory practices of the health and safety agencies that employ risk assessment, such as EPA, FDA, OSHA, NRC, CPSC, and others. Risk assessors use the term "population risk" to mean the total deaths caused by some hazard. By contrast, "individual risk" is the incremental risk of death that the hazard imposes on some particular person. Regulatory decision procedures keyed to "individual risk" are widespread. This is true both for the regulation of toxic chemicals (the heartland of risk assessment), and for other health hazards, such as radiation and pathogens; and regulatory agencies are now beginning to employ "individual risk" criteria for evaluating safety threats, such as occupational injuries. Sometimes, agencies look to the risk imposed on the "maximally exposed" individual; in other contexts, the regulatory focus is on the average individual's risk, or perhaps the risk of a person incurring an above-average but nonmaximal exposure. Sometimes, agencies seek to regulate hazards so as to reduce the "individual risk" level (to the maximally exposed, high-end, or average individual) below 1 in 1 million. Sometimes, instead, a risk level of 1-in-100,000 or 1-in-10,000 or even 1-in-1000 is seen as de minimis. In short, the construct of "individual risk" plays a variety of decisional roles, but the construct itself is quite pervasive. This Article launches a systematic critique of agency decisionmaking keyed to "individual risk." Part I unpacks the construct, and shows how it invokes a frequentist rather than Bayesian conception of probability. Part II surveys agency practice, describing the wide range of regulatory contexts where "individual risk" levels are wholly or partly determinative of agency choice: these include most of the EPA's major programs for regulating toxins (air pollutants under the Clean Air Act, water pollutants under the Clean Water Act and Safe Drinking Water Act, toxic waste dumps under the Superfund statute, hazardous wastes under RCRA, and pesticides under FIFRA) as well as the FDA's regulation of food safety, OSHA regulation of workplace health and safety risks, NRC licensing of nuclear reactors, and the CPSC's regulation of risky consumer products. In the remainder of the Article, I demonstrate that frequentist "individual risk" is a problematic basis for regulatory choice, across a range of moral views. Part III focuses on welfare consequentialism: the moral view underlying welfare economics and cost-benefit analysis. I argue that the sort of risk relevant to welfare consequentialism is Bayesian, not frequentist. Part IV explores the subtle, but crucial difference between frequentist and Bayesian risk. Part V moves beyond cost-benefit analysis and examines nonwelfarist moral views: specifically, safety-focused, deontological, contractualist, and democratic views. Here too, I suggest, regulatory reliance on frequentist "individual risk" should be seen as problematic. Part VI argues that current practices (as described at length in Part II) are doubly misguided: not only do they focus on frequentist rather than Bayesian risk, but they are also insensitive to population size. In short, the Article provides a wide ranging, critical analysis of contemporary risk assessment and risk regulation. The perspective offered here is that of the sympathetic critic. Risk assessment itself - the enterprise of quantifying health and safety threats - represents a great leap forward for public rationality, and should not be abandoned. Rather, the current conception of risk assessment needs to be reworked. Risk needs to be seen in Bayesian rather than frequentist terms. And regulatory choice procedures must be focused, centrally, on the total numbers of the persons exposed to toxins, radiation, pathogens, or other health or safety hazards - not merely the risk that some particular person (whatever her place in the exposure distribution) incurs.
Download it while its hot!


Friday, February 06, 2004
 
Markman Hearing in Adult Net v. Acacia Today The Markman Hearing in Adult Net v. Acacia will be held today. Here is a link, but please be aware that the AVN website has links to adult content. Here is a short exerpt:
    The first step in what could prove a long legal journey begins Feb. 6, when a so-called Markman hearing – in which a trial judge hears evidence and definitions and then determines asserted patent claims as matters of law – is held in federal court in Santa Ana, Calif., in litigation between Acacia Research Corp. and a group of adult Internet companies challenging Acacia's claim to a group of streaming media patents.
And here is a bit more:
    Charges and countercharges have floated about since the case began. Last July, for example, Acacia was angered enough by adult Internet chat board comments opposing the DMT patent claims that they sought additional charges that all but added up to conspiracy against a group of adult Net companies – spearheaded by New Destiny/Homegrown and VideoSecrets – which banded together to challenge together. U.S. District Judge Alicemarie Stotler ruled in favor of that claim in September. But the group of companies, forming an interest group called the Internet Media Protective Association, filed a countersuit charging Acacia with unfair trade practices and abuse of the judicial system.
Acacia's claims are very broad and they potentially reach almost all use of streaming media on the web.


 
Judicial Salaries Juan Non-Volokh & Jeremy Blachman are right about judicial salaries. But what would be an appropriate salary for a federal judge? One of the problems is regional variation in both legal markets and cost of living. In Los Angeles or New York, $200,000 would be far below the market rate for judges who have employment opportunities in the private sector, but in some rural communities this would be a competitive salary. My guess is that there will be strong political pressures to keep judicial salaries more or less uniform, but a truly adequate rate for major metropolitan areas will be politically indefensible in other parts of the country. If I had to pick a number out of a hat, it would be $350,000 per annum.
I tried to determine what current federal judicial pay is, but these figures are about 1 year old:
    Federal District Court Judges--$150,000
    Court of Appeals Judges--$159,000
    Supreme Court justices--$184,000
These figures do not include per diem allowances & other perks. Nonetheless, the pay for federal judges is shockingly low. First year associates at some law firms make nearly as much as district court judges--with signing bonuses, some make more. Senior associates at New York and national firms make more than the Chief Justice!


 
Bainbridge on the Economic Benefits of Drug Patents Re the controversy over allowing the reimportation of Canadian manufactured drugs, Stephen Bainbridge writes:
    The readily appropriable nature of information makes it difficult for the developer of a new idea to recoup the sunk costs incurred in developing it. If an inventor develops a better mousetrap, for example, he cannot profit on that invention without selling mousetraps and thereby making the new design available to potential competitors. Assuming both the inventor and his competitors incur roughly equivalent marginal costs to produce and market the trap, the competitors will be able to sell their traps at a lower price because they have not incurred the sunk costs entailed in developing the trap. Because would-be inventors will therefore anticipate that they will be unable to generate positive returns on their up-front costs, they will be deterred from developing socially valuable information. Accordingly, society provides incentives for inventive activity by using the patent system to give inventors a property right in new ideas. By preventing competitors from appropriating the idea, the patent allows the inventor to charge monopolistic prices for the improved mousetrap, thereby recouping his sunk costs. Trademark, copyright, and trade secret law all can be justified on similar grounds. If being a libertarian requires one to disavow state protection of property rights in information, count me out.
It really isn't as simple as that. First, the economic case for patent is not quite as pat as Bainbridge seems to believe. In fact, if he walked across campus, he would meet David Levine in the UCLA economics department who has made the economic case against intellectual property. (Levine's web page on this topic is here and Chapter One of Levine & Boldrin's The Economic Case Against Intellectual Property is here.) Second, no one believes that there are a priori reasons to believe that the current patent right (20 years, etc.) is economically optimal. Price controls could be warranted & hence the ban on reimporting price-controlled drugs could be inefficient. Read Bainbridge's post!


 
Which is more antidemocratic? The Electoral College or The Supreme Court? That's the question that C.E. Petit asks here.


 
Harrison on the Structure of Constitutonal Liberty John Harrison (University of Virginia) is talking at Northwestern today. (See the Calendar below for the listing) Here is a short excerpt from his talk, entitled The Conceptual Structure of Constitutional Liberty:
    Scholarly writing concerning constitutional protections of liberty is mainly about the substance of those protections. Discussion centers around the nature of the choice or activity that receives protection, the extent and doctrinal content of that protection, and its justification or lack thereof. But law has form and not just content.
    In part because relatively little attention has been given to form, there is a surplus of plausible answers to the basic question, what is the form of a constitutional protection of freedom of action? One might think that it consists of a description of conduct that may not be sanctioned, such as political speech, but defacing someone else’s wall with a political message is both political speech and punishable vandalism. More promising directions suggested by recent Supreme Court cases include the possibility that the Constitution protects liberty by forbidding the use by the government of certain criteria of decision, or that it does so by forbidding the government to pursue certain ends. And perhaps there is no one form, but a plurality of conceptual structures.
    Conceptual form is both an interesting question in itself and one that bears decisively on an issue that has puzzled scholars for the last few decades. Appearing sometimes under the label of overbreadth, sometimes that of the distinction between facial and as-applied challenges to statutes, and most recently that of rule dependence, the issue may be called the incidence of constitutional liberty on sub-constitutional law. Does the Constitution make sub-constitutional norms wholly invalid, partially invalid, or sometimes one and sometimes the other? This article presents an account of the form of constitutional liberty that I think captures current doctrine in a fairly simple specification and that explains when and why subconstitutional rules are wholly invalid, partially invalid, and wholly valid. Constitutional liberty norms, such as those that protect freedom of expression or religious exercise, have two components. One distinguishes two categories of sub-constitutional norms: those that are potentially subject to invalidation and those that are not. Norms in the latter category are valid per se, even when they forbid exercises of the protected liberty. The second component describes activities the prohibition of which is to be treated as inherently costly, so that subconstitutional norms that prohibit those activities (if they are subject to constitutional scrutiny at all) are subject to constitutionally mandated assessment of their costs and benefits. One implication of the second component is that there are forbidden purposes: if a sub-constitutional norm takes the prohibition of protected activity as its purpose, rather than a side-effect of pursuing some other goal, its purpose is impermissible.
Download it while its hot!


 
Friday Workshops There is the roundup of workshops and talks for today:
    At Northwestern's Constitutonal Theory Colloquium, John Harrison (University of Virginia School of Law) presents The Conceptual Structure of Constitutional Liberty.
    At the University of Texas law, Sam Bagenstos (Harvard) presents The Future of Disability Law at noon. Later in the afternoon, Margo Schlanger (Harvard) presents Damage Action Deterrence.
    At the University of Buffalo, David Rohde (Michigan State University) presents The Consequences of Party Organization in the House: The Role of Majority and Minority Parties in Conditional Party Government with comments by Jim Wooten (UB).
    At Oxford's faculty of law, Bernardine Adkins presents Competition Law and Policy.
    At Loyola Marymount, Donald P. Harris (Temple University) presents Do As I Say, Not As I Do -- The United States’ Inconsistent Approach to Intellectual Property Rights: The Case Against TRIPS From A Historical U.S. Perspective.
    At Oxford's Human Rights Discussion Group, Andrew Ashworth presents Anti-Social Behaviour Orders and Anti-Subversion Doctrines in Human Rights.
    At Oxford's Institute of European and Comparative Law, Harm Schepel presents European Product Safety: Public and Private Law in the Regulation of Self-Regulation.
    At MIT's philosophy colloquium, Philip Pettit, Princeton University) presents Freedom according to Sen.
    At Tulane's Murphy Series in Ethics and Political Philosophy, Tom Hurka (University of Toronto) presents Proportionality in the Morality of War.
    Update: At UCLA, Chris Eisgruber (Princeton) presents Equal Liberty and Religious Freedom.
    At the Lisbon Seminar in Analytic Philosophy, Manuel Garcia-Carpintero (Universitat de Barcelona) presents Fiction Making as an Illocutionary Type.


 
Sanchirico on the Upside of Cognitive Error Chris William Sanchirico (University of Pennsylvania--Law School & Wharton School) has posted Evidence, Procedure, and the Upside of Cognitive Error on SSRN. Here is the abstract:
    Humans are imperfect information processors, a fact almost universally bemoaned in legal scholarship. But when it comes to how the legal system itself processes information, cognitive limitations are largely good news. Evidentiary procedure - inclusive of trial, discovery, and investigation - relies heavily on the fact that human mental capacity is limited. Such limits are crucial to separating sincere from insincere testimony. Moreover, notes and other cognitive artifacts that individuals make to compensate for their limited cognitive ability are an important source of evidence. This article's primary objective is to elucidate the extent to which cognitive imperfection is beneficial rather than detrimental to evidentiary process and thus to law as a whole. Secondarily, the article discusses how the law of evidentiary process tilts the playing field of litigation in a manner that exacerbates the cognitive limitations of the potentially insincere and offsets the limitations of competing participants.
Very interesting!


 
Lipton on Mixed Metaphors in Cyberspace Jacqueline D. Lipton (Case Western Reserve University School of Law) has posted Mixed Metaphors in Cyberspace: Property in Information and Information Systems (Loyola University Chicago Law Journal, Vol. 35, pp. 235-274, 2004) on SSRN. Here is the asbstract:
    Many scholars have commented on the use of real and personal property metaphors to describe aspects of cyberspace, often expressing concern about inappropriate uses of such metaphors. If the focus of cyberspace law debates becomes too entrenched in notions of whether we should be utilizing real and/or personal property metaphors, we risk losing focus on some of the more important issues. These issues include questions about exactly what subject matter should be regulated by cyber-laws, and how approaches to protection might be appropriately harmonized between different jurisdictions in an increasingly globalized society. This paper focuses on some of these issues, utilizing a case study involving a framework for a new approach to regulations prohibiting unauthorized 'bad faith' incursions into information and information systems. In so doing, it advocates some reliance on personal property concepts in relation to information, and aspects of information systems. However, it argues that real property metaphors should be avoided in cyberspace. It also compares legal approaches to unauthorized interferences with proprietary information/informtion systems between the United States and the European Union.


 
Dipert on the Structure of the Emotions Randall Dipert (United States Military Academy) has posted The Nature and Structure of Emotions. Here is a taste:
    Philosophers have almost always said something about emotions and passions whenever they have discussed human mental life. Many have asserted that it is some emotions or, more broadly, passions, that are to be primarily valued and sought. These valued passionate states of mind might include emotions, moods, desires, belief-like feelings of conviction and commitment, and romantic or erotic love, which are typically scarcely distinguished. Not only are these states of mind lumped together, but the reasons why they are valued may likewise be various: they may be valued because of their intrinsic feeling (especially insofar as they are intense), through their long-term or deep effects on the rest of our practical and mental lives, through their effects on others’ lives, or even in the glimpse they give us of an object that transcends our mundane and superficial concerns, as in love, peak experiences, or intimations of God, Beauty, or Nature. Others have claimed that it is in the subduing or elimination of some or all of these passions that the ideal human life consists. Again, what precisely are the objectionable passions is typically not delineated, and why such mental states are objectionable may be diverse and even unspecified. One might resent their "disruptive" nature on our mental life, especially insofar as some of them stem from external, uncontrollable sources, and instead seek a calm state that is within one’s control and not subject to these whimsical externalities. Or one can see many or all passions as disruptive of control and success in our inner or outer life, or in the lives of others. We might call this latter group the anti-emotional Rationalists, and the former group the pro-emotional Romantics.


 
Call for Papers: Global Justice
    JOURNAL OF MORAL PHILSOPHY: an international journal of moral, political and legal philosophy Call for Papers: "Global Justice" 2.3 (2005) The Journal of Moral Philosophy (ISSN 1740-4681) is a peer reviewed journal of moral, political, and legal philosophy with an international focus. It publishes high quality articles in all areas of normative philosophy, including pure and applied ethics, legal, social and political theory. Contributors should avoid unnecessary jargon without sacrificing academic rigour. It is Continuum's premier journal of philosophy. The Journal of Moral Philosophy will be publishing a special issue on "Global Justice". The issue will appear in November 2005 as number three in volume two. Authors interested in contributing to this issue are asked to contact the Editor: Editor: Thom Brooks, Department of Philosophy, University of Sheffield, Sheffield S10 2TN, United Kingdom (tbrooks@web.de). Submissions should be received no later than December 31, 2004. For subscription information to the Journal of Moral Philosophy, please contact Journals Subscription Administrator, Orca Journals, Stanley House, 3 Fleets Lane, Poole, Dorset BH15 3AJ (journals@orcabookservices.co.uk). The prices for volume one are: institutional $190.00 (£110.00), individual $47.50 (£27.00) and students $38.00 (£22.00). Prices include postage. (http://www.continuumjournals.com/jmp) -- Thom Brooks Editor, Journal of Moral Philosophy Department of Philosophy University of Sheffield Sheffield S10 2TN United Kingdom tel: ++44 (0)7732 487 220 (mobile) fax: ++44 (0)114 279 8760 Journal of Moral Philosophy website: www.continuumjournals.com/jmp


Thursday, February 05, 2004
 
Brickman on Asbestos Litigation Lester Brickman (Cardozo Law School) has uploaded On the Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality (Pepperdine Law Review, Vol. 31, No. 33, 2004). My guess is that this will be very controversial. I've read a fair amount of it, and I want to make it clear that I have no independent basis for either affirming or rejecting Brickman's claims. The abstract underplays the claims in the article, but here it is:
    More than 100,000 new asbestos claims were filed in 2003, the most ever in one year. Asbestos litigation thus continues to thrive even though 80-90% of claimants have no illness recognized by medical science, let alone suffer any lung impairment. To explain how this disconnect between medical science and tort litigation has come about, I cover the following subjects:
      1) medical consequences of exposure to asbestos-containing materials; 2) the phenomenon of the unimpaired claimant; 3) medical evidence with regard to the incidence of asbestosis; 4) the effect on asbestos litigation of the failure of the Manville Trust audit to be approved; 5) the causes and effects of seemingly orchestrated changes in party and witness testimony with regard to the identification of asbestos-containing products at work sites; and 6) the Baron & Budd "script memo."
    The core of the article is an empirical analysis of attorney-sponsored asbestos screenings which account for approximately 90% of claims being generated. On the basis of that empirical research, I conclude that asbestos litigation today largely consists of former industrial and construction workers:
      (1) recruited by an extensive network of entrepreneurial screening companies which are employed by lawyers to "screen" hundreds of thousands of potential litigants each year at local union halls, hotel and motel rooms, shopping center parking lots, and other locations throughout the country; (2) asserting claims of injury though they have no medically cognizable injury and cannot demonstrate any statistically significant increased likelihood of contracting an asbestos-related disease in the future; (3) in a civil justice system that has been significantly modified to accommodate the interests of these litigants by dispensing with many evidentiary requirements and proof of proximate cause; (4) mostly in forum-shopped jurisdictions, where judges and juries often appear aligned with the interests of plaintiff lawyers; (5) often supported by specious medical evidence, including: (a) evidence generated by the entrepreneurial medical screening enterprises and B-readers - specially certified x-ray readers that the enterprises or plaintiff lawyers select, who fail to exercise good faith medical judgment but instead conform their findings and reports to the expectations of the plaintiff lawyers who retained them, and (b) pulmonary function tests which are often administered in knowing violation of standards established by the American Thoracic Society and result in findings of impairment which would not be found if the tests were properly administered; and (6) who frequently testify according to scripts prepared by their lawyers which include misstatements with regard to: (a) identifications of and relative quantities of asbestos-containing products that they came in contact with at work sites, (b) the information printed on the containers in which the products were sold, and (c) their own physical impairments.
    It is beyond cavil that asbestos litigation thus represents a massive civil justice system failure. Because of the awesome power of the asbestos plaintiffs' bar, the issues posed by this failure appear impervious to resolution by civil justice reform. Realistically, the only fora in which the issues of the mass production of bogus medical evidence and scripted client and witness testimony can be addressed is through an investigatory grand jury process.
    A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let along analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation. In this article, I set forth some tentative explanations of this phenomenon.
And what are the tentative explantions? Here is a taste from the very end:
    [M]ost torts scholars and all plaintiffs lawyers see the tort system as a bulwark that holds back a tide of egregious corporate behavior that would otherwise engulf the polity. That may explain, at least in part, why most torts scholars align with tort lawyers in opposing most tort reform proposals. Tort reform is seen as potentially stripping away the protections created by the tort system's expansion of the scope of activity that can give rise to liability in tort. These expansions in the scope of tort liability are often championed or spearheaded by torts scholars. Thus, the tort system and its reform have a political dimension. Torts scholars and tort lawyers mutually reinforce each other's interests within such a political context. Tort lawyers ratify the validity of tort scholars' premises by uncovering examples of egregious conduct and depriving enterprises of the profits from their wrongdoing. There is also a second aspect to the political dimension of the tort system. Tort lawyers, as a class, are among the largest single-issue contributors to political campaigns and account for a substantial portion of one political party's funding. Without the profits from tort claiming, that political party's ability to advance policies and positions that many torts scholars espouse could be in jeopardy. Political beliefs may therefore shape perceptions of reality. Scholars' failure to acknowledge or even perceive that asbestos litigation has come to be largely based on the production and use of specious evidence may therefore be a function of the political dimension of the tort system.
There is much more where that came from.


 
Pryor at Harvard Tomorrow Tomorrow, the HLS Federalist Society will presents Alabama Attorney General Bill Pryor entitled Christian Duty and the Rule of Law: Ten Commandments Litigation. Pryor did the right thing by opposing Roy Moore's flaunting of the rule of law. It should be a very interesting speech. Check out this link for details.


 
Lee on the Grokster Argument Yesterday Don't miss this post on the Grokster argument yesterday by Edward Lee. It sounds like Judge Noonan was devastating!


 
Thursday's Workshops & Update Here is the roundup of workshops and talks from hither and yon:
    At Yale's Legal Theory Workshop, John Manning (Columbia Law) presents The Eleventh Amendment And the Reading of Precise Constitutional Texts.
    At Princeton's Political Philosophy Colloquium, Seyla Benhabib (Yale University) presents The Right to Have Rights' in Contemporary Europe.
    At the University of Texas, John Ferejohn (Stanford) presents Super-Statutes," Part I and Part II.
    At the University of Michigan's law and economics series, Vicki Been (New York) presents Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?.
    At UCLA's tax policy series, David Schizer (Columbia Law School) presents Inconsistencies, Imbalances, and the Taxation of Derivative Securities: An Agenda for Reform.
    At Oxford's Public International Law Discussion Group, Maurice Mendelson presents Proceedings for Revision of Judgments in the ICJ.
    At Boston University, Jules Lobel (Pittsburgh) presents Courts as Forums for Protest.
    At George Mason, Alan Schwartz (Yale Law School) presents Who Should Pay for Bankruptcy Costs?.
    At Oxford's faculty of law, Stephen Weatherill presents Competition Law and Sport.
    At Australian National University's RSSS, Andy Egan (RSSS) presents Quasi-realism and Fundamental Moral Error.
    At Florida State law, Scott Baker (University of North Carolina School of Law) presents The Partnership Penalty.
    At the University of Hertfordshire Centre for Normativity and Narrative, Gregory Currie (Nottingham) presents Narrative and Coherence and Narratives and Artefacts.
    At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Kim Hutchings (LSE) presents Speaking and Hearing: Habermasian discourse ethics, feminism and international relations .
    Update: At Princeton's Public Law Colloquium, Tom Keck (Syracuse) presents The Supreme Court and Modern Constitutional Conservatism.


 
Harris Reviews Swanton Over at Notre Dame Philosophical Reviews, George Harris reviews Christine Swanton's Virtue Ethics: A Pluralistic View. I ordered Swanton's book as soon as I learned of its existence. If you are interested in aretaic moral theory or virtue jurisprudence, you will want to own this book! Here is an excerpt from Harris's review:
    Written for advanced specialists in moral theory, the book is framed within a technical vocabulary that requires concentrated effort to master before its contributions can be appreciated. Even those who are already familiar with a good bit of the virtue-ethics literature will have to orient the issues to her terminological framework. Also, patience is required because of the way the book unfolds. One way to present a view in relationship to the above list of questions and other views is first to describe the view independent of how it answers these questions and independent of how it responds to other views and then show how it answers the questions better than other approaches. Another way (taken by Swanton) is to construct the view along the way to answering these questions and in the process of showing how other views require adjustments to adequately answer the questions on the list. The latter approach can sometimes make it difficult to get a clear understanding of just what view we are supposed to be accepting. With this in mind, I will focus on constructing an overview of the kind of account Swanton would have us accept with minimal reference to the questions, to other thinkers, and to other literature and only then turn to a few critical remarks. So what is the view? With the exception of some of its features that might be rejected without rejecting the heart of the framework, the view is something very near the following. The most fundamental normative moral concepts are the concept of virtue and the associated concept of character. Here the concept of good character-trait-profiles is central to understanding the kind of pluralistic virtue-ethics being recommended. Virtues have profiles containing a plurality of functions, a plurality of modes of moral acknowledgment, and a plurality of targets (objects of moral concern). A virtue’s function-profile includes its integrative functions, its expressive functions, and its creative functions by way of its multiple modes of moral acknowledgment. In addition to the promotion of value, a virtue’s acknowledgment-profile contains universal love and self-love, respect for persons and proper authority, and various modes of creativity. And a virtue’s target-profile includes the many objects that can be integrated and expressed by various modes of moral acknowledgment. When we understand all this, we will understand why virtue and character have the fundamental status at the heart of a virtue-ethics approach to ethical theory.
I didn't find the technical vocabulary off putting, but I've been reading virtue ethics literature for more than 20 years. Both the book and the review are highly recommended!


 
Egan on Quasi-Realism Andy Egan (Australian National University) has uploaded Quasi-Realism and Fundamental Moral Error . Here is a taste:
    It’s not plausible that concerns about moral error are concerns about whether the agent’s attitudes really are what she takes them to be. The speaker who utters (E) probably isn’t expressing uncertainty about whether or not she really disapproves of stealing —it may be perfectly clear (to her and to everyone else) that she does. So we can’t gloss (E) as “I think that I disapprove of stealing, but I might be wrong”. What is it, then, that she’s admitting that she might be mistaken about? There’s no room here to be making a (true) claim about one’s own attitudes, and at the same time expressing some conflicting attitude. So quasi-realists (and expressivists in general) need some other account of what we’re concerned about when we’re concerned about (present) moral error.
And also a bit from the conclusion:
    Conclusion: A common first reaction to expressivist and quasi-realist theories is the thought that, if these theories are right, there's some objectionable sense in which we can't be wrong about morality. This worry turns out to be surprisingly difficult to make stick-an account of moral error as instability under improving changes provides the quasi-realist with the resources to explain many of our concerns about moral error. The story breaks down, though, in the case of fundamental moral error. This is where the initial worry finally sticks-quasi-realism tells me that I can't be fundamentally wrong about morality, though others can. This result is, I think, sufficiently objectionable that we ought to reject the theory.


 
Appleton's Transgendered Tales Susan Frelich Appleton (Washington University, St. Louis - School of Law) has posted Transgender Tales: Jeffrey Eugenides's Middlesex and Other Stories of Popular Culture, Sex, and Law on SSRN. Here is the abstract:
    Citing the repeated attention to transgendered characters in today's popular culture, this review essay focuses on Jeffrey Eugenides's Pulitizer-Prize winning novel, Middlesex, whose engaging and delightful protagonist-narrator was mistakenly classified at birth and reared as a girl, only to experience at adolescence gradual transformation into a male. The protagonist's particular medical problem and the story that Eugenides weaves around it allow exploration of two primary threads: First, this essay examines what the protagonist's fictional story adds to the true story of the man now known as David Reimer. Reimer became a notorious test case in the nature-versus-nurture debate about gender after Dr. John Money directed his distraught parents to rear their baby boy as a girl following the accidental loss of his penis. Money publicly proclaimed the treatment successful - promoting the belief that the Reimer family had a well-adjusted daughter and reinforcing the views of scholars who emphasize the social construction of gender. Although the family's later disclosures were utterly inconsistent with Money's claims, Middlesex helps tease out important nuances that Money's eventual disrepute has obscured. In particular, this essay's juxtaposition of the novel and the true story illuminates several prominent issues in family law and policy, including family secrecy, parental autonomy, parental reliance on (often mistaken) experts, and prevailing understandings of sex and gender. Second, this essay analyzes what Middlesex's protagonist and the other transgendered figures in popular culture contribute to the ongoing conversation about legal sex-based classifications, including the male-female requirement for marriage. After a critical examination of both the vocabulary used to discuss sex and gender and the challenges that those like the novel's protagonist pose for the conventional hierarchy, the focus shifts to the law's sex-equality norms, specifically the anti-stereotyping analysis prominent in equal protection doctrine and various modern family laws. Under today's laws, what precisely is the difference between a wife and a husband, beyond pure anatomy? Although recent litigation about transsexuals' marriage claims mostly have failed to take anti-stereotyping analysis to its logical conclusion (despite the arguments of some strategists), nonetheless popular culture and contemporaneous legal developments have brought the current prohibitions on same-sex marriage to the brink of collapse. Assuming that marriage is here to stay (an assumption some feminists contest), the pathbreaking opinion of the majority of the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health offers one glimpse of how the law might rethink marriage without an opposite-sex requirement. Yet marriage is just one context that tests the law's commitment to gender equality. The essay concludes with three thought experiments about how the law might treat sex and gender in the future - consistent with the continuing erosion of the traditional understanding revealed through the lens of Middlesex. Although this essay confronts serious and important questions, throughout it maintains a somewhat playful tone that seems fitting for a review of this particular work of fiction and for an exploration of popular culture's mainstreaming of transgender issues.


 
Conference Announcement: Truth and Realism
    TRUTH AND REALISM 17th-20th June 2004 University of St. Andrews Registration forms are available from the Registration Page: http://www.st-andrews.ac.uk/~pmg2/Regpage.htm (Payment is accepted in sterling, dollars, or Euros.) The main webpage can be accessed at: http://www.st-andrews.ac.uk/~pmg2/TRUTHANDREALISM2004 Prelim.htm Main speakers: Robert Brandom, Michael Devitt, Terence Horgan, Paul Horwich, John McDowell, Ernest Sosa, Michael Williams, Crispin Wright. Commentators: JC Beall, Marian David, Dorothy Edgington, Chris Gauker, John Hawthorne, Jane Heal, Michael Lynch, Mark Richard. Chairpersons: Pascal Engel, Jennifer Hornsby, Peter Pagin, Sven Rosenkranz, Tadeusz Szubka, Allessandra Tanesini, Brian Weatherson, Ralph Wedgewood Conference Commentators: Simon Blackburn, Richard Rorty, Timothy Williamson. Contact email tr2004@st-andrews.ac.uk


Wednesday, February 04, 2004
 
Moving The Importance Of has moved to Corante. Update your links!


 
More on Reparations A few days ago, I linked to this post by Stephen Bainbridge on corporate responsibility and past wrongs. Now, William J. Watkins, Jr. has posted Corporate Profits and Slave Reparations.


 
Rappaport and McGinnis on a Supermajority Spending Rule From The Right Coast, Michael Rappaport (University of San Diego) and John McGinnis (Northwestern) have an op/ed in today's Wall Street Journal on their proposal for a supermajority spending rule. Here is a tiny morsel:
    A better structural reform [than a balanced budget amendment] would involve a spending limitation amendment. Such an amendment could address excessive spending directly by requiring that Congress obtain a two thirds or three fifths majority to pass any new spending laws. Spending could also be precisely defined as all net payments that move from the Treasury to other hands. Our proposed amendment would avoid two kinds of criticisms that have been made in the context of balanced budget amendments. First, some critics might fear that a supermajority rule would perversely provide additional leverage to a minority favoring higher spending because that minority can threaten to shut down the government unless additional spending is enacted. As we learned during the Clinton era, citizens understandably fear government shut downs because the government’s core functions sustain the social order. Our amendment would deprive holdouts of additional leverage because it would allow a mere majority to pass spending laws so long as total spending remained less than ninety percent of the previous year’s total. A congressional majority could therefore prevent a government shut down, but there would still be pressure eventually to pass spending under the supermajority rule because Congress will almost always wants to spend at levels higher than ninety percent.


 
Barnett on Real Video or Audio Today Randy Barnett's Restoring the Lost Constitution has been creating quite a stir in the world of constitutional theory. There is a program on the book today at the Cato Institute in Washington at 4:00 p.m. Walter Dellinger (Duke University) and Judge David Sentelle (U.S. Court of Appeals for the District of Columbia Circuit) will comment and Barnett will respond. You can watch or listen on Real. Click on this link for details.


 
The Legal Theorist on Tour The latest blogospheric craze is posting your own map of places visited. Here are the hotspots of legal theory (as identified somewhat arbitrarily by the travels of your humble blogger):

Surf on over to create your own visited country map!


 
Wednesday's Workshops & Talks Here is today's roundup:
    In London, at University College's famous Colloquium in Legal and Social Philosophy, G.A. (Jerry) Cohen (All Souls College, Oxford) presents 'Rescuing Justice from Constructivism: Facts and Principles' . Here is the abstract:
      Most philosophers who provide an answer to the question say that (sound) normative principles, as such (and, therefore, all of them), are (at least inter alia) grounded in the facts of human nature and of the human situation. John Rawls expresses that belief when he says that “Conceptions of justice must be justified by the conditions of our life as we know it or not at all”.
      My thesis denies the stated belief. I argue that a principle can respond to (i.e., be grounded in) a fact only because it is also a response to a more ultimate principle that is not a response to a fact: if principles respond to facts, then the principles at the summit of our conviction are grounded in no facts whatsoever.
      My thesis is neutral with respect to the principal claims at stake in four controversies that have dominated the meta-ethical literature: regarding “‘is’ to ‘ought’”, fact and value, objectivity, and realism.
    And here is a bit more from later in the paper:
      For Rawlsian constructivism, fundamental principles of justice, for all that they are fundamental, which is to say, not derived from still more fundamental principles, reflect facts. Rawls believes that because he misidentifies the question “What is justice?” with the question “What principles should we adopt to regulate our affairs?” For facts undoubtedly help to decide what rules of regulation should be adopted, that is, legislated and implemented, if only because facts constrain possibilities of implementation and determine defensible trade-offs (at the level of implementation56) among competing principles. But the principles which explain, with the facts, why a given set of principles is the right one to adopt, don’t reflect facts, and non-exposure of those more ultimate principles means failure to explain why we should adopt the principles that we should adopt.
    Must download!
    And also in London today, at the the London's Institute for Educaton, Roger Trigg (Warwick) presents Religion in the Public Square.
That's it for today. Tomorrow, there will be usual plethora of Thursday papers!


 
Adler on Risk Assessment Matthew D. Adler (University of Pennsylvania Law School) has posted Against 'Individual Risk': A Sympathetic Critique of Risk Assessment on SSRN. Here is the abstract:
    "Individual risk" currently plays a major role in risk assessment and in the regulatory practices of the health and safety agencies that employ risk assessment, such as EPA, FDA, OSHA, NRC, CPSC, and others. Risk assessors use the term "population risk" to mean the total deaths caused by some hazard. By contrast, "individual risk" is the incremental risk of death that the hazard imposes on some particular person. Regulatory decision procedures keyed to "individual risk" are widespread. This is true both for the regulation of toxic chemicals (the heartland of risk assessment), and for other health hazards, such as radiation and pathogens; and regulatory agencies are now beginning to employ "individual risk" criteria for evaluating safety threats, such as occupational injuries. Sometimes, agencies look to the risk imposed on the "maximally exposed" individual; in other contexts, the regulatory focus is on the average individual's risk, or perhaps the risk of a person incurring an above-average but nonmaximal exposure. Sometimes, agencies seek to regulate hazards so as to reduce the "individual risk" level (to the maximally exposed, high-end, or average individual) below 1 in 1 million. Sometimes, instead, a risk level of 1-in-100,000 or 1-in-10,000 or even 1-in-1000 is seen as de minimis. In short, the construct of "individual risk" plays a variety of decisional roles, but the construct itself is quite pervasive. This Article launches a systematic critique of agency decisionmaking keyed to "individual risk." Part I unpacks the construct, and shows how it invokes a frequentist rather than Bayesian conception of probability. Part II surveys agency practice, describing the wide range of regulatory contexts where "individual risk" levels are wholly or partly determinative of agency choice: these include most of the EPA's major programs for regulating toxins (air pollutants under the Clean Air Act, water pollutants under the Clean Water Act and Safe Drinking Water Act, toxic waste dumps under the Superfund statute, hazardous wastes under RCRA, and pesticides under FIFRA) as well as the FDA's regulation of food safety, OSHA regulation of workplace health and safety risks, NRC licensing of nuclear reactors, and the CPSC's regulation of risky consumer products. In the remainder of the Article, I demonstrate that frequentist "individual risk" is a problematic basis for regulatory choice, across a range of moral views. Part III focuses on welfare consequentialism: the moral view underlying welfare economics and cost-benefit analysis. I argue that the sort of risk relevant to welfare consequentialism is Bayesian, not frequentist. Part IV explores the subtle, but crucial difference between frequentist and Bayesian risk. Part V moves beyond cost-benefit analysis and examines nonwelfarist moral views: specifically, safety-focused, deontological, contractualist, and democratic views. Here too, I suggest, regulatory reliance on frequentist "individual risk" should be seen as problematic. Part VI argues that current practices (as described at length in Part II) are doubly misguided: not only do they focus on frequentist rather than Bayesian risk, but they are also insensitive to population size. In short, the Article provides a wide ranging, critical analysis of contemporary risk assessment and risk regulation. The perspective offered here is that of the sympathetic critic. Risk assessment itself - the enterprise of quantifying health and safety threats - represents a great leap forward for public rationality, and should not be abandoned. Rather, the current conception of risk assessment needs to be reworked. Risk needs to be seen in Bayesian rather than frequentist terms. And regulatory choice procedures must be focused, centrally, on the total numbers of the persons exposed to toxins, radiation, pathogens, or other health or safety hazards - not merely the risk that some particular person (whatever her place in the exposure distribution) incurs.
I always profit from Matt Adler's work. Highly recommended!


 
Tridimas on a European Supreme Court P. Takis Tridimas (University of Southampton - Faculty of Law) has posted The European Court of Justice and the Draft Constitution A Supreme Court for the Union? on SSRN. Here is the abstract:
    The purpose of this paper is twofold. First, it examines selectively the provisions of the draft Constitution pertaining to the Court of Justice and assesses the ways in which the draft Constitution is likely to affect the jurisdiction and the function of the Court. Secondly, it discusses the challenges faced by the Court in relation to the protection of human rights by reference to the recent judgment in Schmidberger. Both aspects of the discussion serve to underlie that the Court is assuming the function of the Supreme Court of the Union whose jurisdiction is fundamentally constitutional in character. It has a central role to play not only in relation to matters of economic integration but also in deciding issues of political governance, defining democracy at European and national level, and contributing through the process of judicial harmonisation to the emergence of a European demos. This constitutional jurisdiction of the ECJ is not new but has acquired more importance in recent years and is set to be enhanced under the provisions of the new Constitution. The paper is divided as follows: The first section provides an overview of the way the new Constitution affects the ECJ. The subsequent sections examine respectively Article 28(1) of the draft Constitution, the appointment and tenure of the judiciary, locus standi for private individuals, sanctions against Member States, jurisdiction under the CFSP and the Chapter on freedom, security and justice, preliminary references, other provisions of the Constitution pertaining to the Court, the principle of subsidiarity, and the judgment in Schmidberger. The final section contains some concluding remarks.


 
Daum on the Outer Limits of the Copyright Clause Shiloh A. Daum's ELDRED V. ASHCROFT: INTERNATIONAL INFLUENCES AND THE OUTER LIMITS OF THE COPYRIGHT CLAUSE, 29 N.C. J. Int'l L. & Com. Reg. 129 (2003), is now available on Westlaw. Here is a taste:
    It is apparent from even a cursory look at both American and foreign legal history that there has been a progressive internationalization of intellectual property laws. Even when the United States declined to be a direct party to international standards like the Berne Convention for over a century, it was still acting and legislating with international impacts in mind. Professor Arthur Miller made the point well: "Congress did not give a fig about Europe . . . . Congress was trying to create a regime that would make it easier for Americans to market in Europe, to disseminate in Europe, and to make sure American authors would receive [the same] protection in Europe . . . ." Even if not concerned with the interests of Europe, the increasing cross-border implications and occasional interdependence brought by a global economy is essentially what has driven U.S. copyright policy since the passage of the 1976 Act. The same international pressures existed for the CTEA, and they have only been enhanced by the technological difficulties of protecting digital media that are infinitely fluid and reproducible. Taken as a whole, these factors support a judicially restrained approach to invalidating congressional enactments - but the Supreme Court's decision in Eldred v. Ashcroft sets the constitutional bar too low. Because of this, the judiciary will probably be forced to revisit questions on the scope of the Copyright Clause. Since Eldred does not solve the riddle, the Court will have to resolve whether legislative action making copyright effectively perpetual comports with "limited Times." We shall see.


 
Call for Papers: Privacy
    FINAL CALL FOR ABSTRACTS: Deadline FEBRUARY 1, 2004 Privacy Philosophy Colloquium: April 1-3 2004 University of Utah Salt Lake City, Utah The US Constitution does not explicitly mention any right of privacy. Still, Justice Harry Blackmun, writing in 1973 for the majority in Roe v. Wade, acknowledged that "the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution." He enumerated cases in which the Court had upheld the right of personal privacy in matters to do with marriage, family relationships, contraception, childbirth, child rearing, and education, noting also constitutional protections against government intrusion into the privacy of the home without a legal cause and a warrant. Even so, he rejected "an unlimited right to do with one's body as one pleases." What is this privacy that appears to be protected? Is it (as Blackmun suggests) a matter of control over certain zones (for example one’s person, one’s bedroom, or one’s home)? If so, how can the concept of privacy extend to such categories of information as for example one’s sexual orientation, one’s health or one’s genetic endowment? Is the term "privacy" a kind term, with many species falling under it? If so, how are the species related to each other? Do rights to privacy exist? If so, what kind of rights are they, and what kind of entity is the rights bearer in the first instance? Do these rights rest on empirical facts, and what relations do they bear to other rights? Whether or not rights to privacy exist as such, are protections of privacy or practices of privacy worth having? How is privacy, as well as violations of it, experienced? Is privacy a human need? And if so, is the need for privacy special to the human species? Are rights to privacy (if they exist) culturally dependent, or dependent upon legal or moral practices? Do they evolve, with developments in society, technology and culture? And if so, how? Confirmed speakers: Anita Allen (University of Pennsylvania), Bruce Jennings (Hastings Center), Chandran Kukathas (University of Utah), Pamela Sankar (University of Pennsylvania) Please submit abstracts of approximately 1000 words by February 1, 2004, to Privacy Conference Philosophy Department University of Utah 260 S. Central Campus Dr. Salt Lake City, UT 84112 or by email to: mariam.thalos@philosophy.utah.edu or francisl@law.utah.edu Inquiries welcome. Addressing questions of privacy in a responsible way has never been more important than it is today. This conference is therefore being organized in order to focus attention, promote cross-fertilization and foment collaboration on the topic. An issue of the international journal The Monist, edited by Mariam Thalos and appearing in 2007, will be devoted to this topic.


Tuesday, February 03, 2004
 
Law of the Virtual Worlds & Update I've moved this post to the top of the blog, both because I loved the paper and because I just learned that Greg Lastowka has accepted an offer to Rutgers-Camden.
The Laws of the Virtual Worlds (92 Cal. L. Rev. 1 (2004)) the fascinating and important paper by F. Gregory Lastowka (Dechert LLP) and Dan Hunter (Wharton School Penn) is now available in final form from Westlaw. Here is a taste from the conclusion:
    Many people live out large parts of their lives in virtual worlds, and soon many more will join them. The issues of property and cyborg rights are not going to go away.
    Property interests will be the initial arena for the development of virtual- world law. This is the area of law in which most disputes will arise for some time to come, based upon actions of game owners as well as the filing of the Blacksnow and Castle Giran lawsuits. As we concluded in Part II, it seems clear that virtual assets can be characterized as property for the purposes of real-world law. The battles fought over virtual property will involve claims sounding in property, contract, unfair competition, and other familiar real-world areas. At least initially, these claims should not pose too many problems for courts. Traditional approaches will work.
    However, this is likely to change over time. As people increasingly come to live and work in these worlds, the domination of legal property issues by EULAs and practices of "wizardly fiat" may appear one-sided and unjust. If corporate wizards continue to assert complete ownership over virtual lives, cyborg inhabitants will bring their concerns to real-world courts to prevent certain fundamental rights from being contracted away. If constitutional speech protections extend to company towns like Chickasaw, Alabama, it seems likely that such rights will be asserted by, and eventually granted to those who live in virtual worlds.
    When virtual-world lawsuits arise, as they inevitably will, it will not be a sufficient answer to say, "It's just a game." Nor can the wizards who create and maintain the worlds simply assert that they can do as they wish. The issues are more complex than that, and the users and community will need to have a say in the formation of the laws of virtual worlds. David Johnson and David Post once remarked that
      [i]f the sysops and users who collectively inhabit and control a particular area of the Net want to establish special rules to govern conduct there, and if that rule set does not fundamentally impinge upon the vital interests of others who never visit this new space, then the law of sovereigns in the physical world should defer to this new form of self- government.
    We believe that Johnson and Post's observation will, in the end, apply to virtual worlds. Courts will need to recognize that virtual worlds are jurisdictions separate from our own, with their own distinctive community norms, laws, and rights. While cyborg inhabitants will demand that these rights be recognized by real-world courts and virtual-world wizards, they will need to arrive at these rights themselves within the context of the virtual worlds. Whether or not the courts and the wizards recognize these rights, virtual communities will continue to assert them and attempt to enforce them. Virtual- world inhabitants will demand recognition of their cyborg lives and enforcement of their cyborg rights. If these attempts by cyborg communities to formulate the laws of virtual worlds go well, there may be no need for real-world courts to participate in this process. Instead, the residents of virtual worlds will live and love and law for themselves.
Download it while its hot!


 
Welcome to the Blogosphere . . . to Mirror of Justice, a "group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law." The members of the group are: Stephen Bainbridge, Kathleen Brady, Paolo Carozza, Rick Garnett, Vince Rougeau, Mark Sargent, Mike Scaperlanda, Greg Sisk, Amy Uelmen, and Rob Vischer.


 
Welcome to the Blogosphere . . . to Larry Ribstein (University of Illinois) whose new blog is titled Ideoblog.


 
Tuesday Workshops Here are the workshops for today:
    At Oxford's Jurisprudence Discussion Group, Michael Giudice presents Participant Understanding and Legal Theory. I would be most grateful for a link to the paper or an abstract.
    At Oxford Intellectual Property Research Centre, Cathleen Blackburn presents The Law of the Rings - A Review of Intellectual Property issues recently encountered by the Tolkien Estate.
    At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Alex Bellamy (LSE) presents Deconstructing Modernity: Did Newton really overthrow Aristotle?.
    At London's Heythrop College, Simon Kirchin (Canterbury) presents Expressivism, Minimalism and Value.
    At Florida State law, Alyson Flournoy (University of Florida) presents Discovering Values in Regulation.


 
Terchek Reviews Hamilton Over at Notre Dame Philosophical Reviews, Ron Terchek reviews Lawrence A. Hamilton's The Political Philosophy of Needs. Here is a taste, courtesy of Online Papers in Philosophy:
    Lawrence Hamilton is unhappy with the way we identify and satisfy our needs. He does not provide a schedule of needs that must be addressed for every individual, but rather offers an elaborate theory heavily dependent on political sociology, political economy, and cognitive psychology. In the process, he gives us his views of true interests and realistic thinking about politics. If only we think correctly, the author seems to argue, we can at last get things straight. In The Political Philosophy of Needs, a work based on his doctoral dissertation, the author advances a fresh approach to needs which he wants us to make into the foundation of theorizing. He offers his approach as a way of overcoming the deficiencies he detects in contemporary theorizing. ?If modern political theory,? he tells us, ?embraced political sociology and political economy and rejected the dominance of moral philosophy it might begin to grasp the significant mechanisms that exist between certain forms of oppression and particular institutions and practices? (116). What he means to offer is an approach that bypasses rights and moral philosophy for something he holds is more analytically rigorous and political.


 
Gostin on Terrorism and Liberty Lawrence O. Gostin (Georgetown University Law Center) has posted When Terrorism Threatens Health: How Far are Limitations on Personal and Economic Liberties Justified? (Florida Law Review, Vol. 55, p. 1105, 2003) on SSRN. Here is the abstract:
    The U.S. government's homeland security project is a controversial one, largely because it has the effect of placing into conflict two sets of fundamental values: the public's health and safety versus personal and economic liberties. Resolving this conflict requires an understanding of the various interests, a recognition of key choices, and the development of a framework to balance individual and collective interests. Part I of this paper sets forth a risk assessment of the threat posed by bioterrorism and concludes that the risk is sufficiently high to justify liberty-limiting powers to detect and respond to that threat. Such powers include vaccination, treatment, quarantine, nuisance abatements, and takings of private property. Part II argues that instead of focusing the debate on whether the government should have these powers, it is more appropriate, given that the risk from bioterrorism is stratified, to ask under what circumstances may an exercise of authority be justified. Part III examines two political theories, liberalism and communitarianism, as a way to test the assumption that state power may, in some circumstances, be justified. Though at first glance these two theories would seem to advocate distinct responses to the question of the legitimacy of state power, in reality, the exercise of public health powers to avert a considerable risk is justifiable under both theories. Finally, Part IV presents a framework for balancing competing personal and collective interests to address the question of when, that is under what circumstances, state power should be exercised. This framework advocates the use of traditional powers to further the goal of public security while requiring compliance with predetermined standards and procedures. Difficult trade-offs are an inevitability - at times, national security will be compromised out of respect for constitutional values, and at other times individual freedom and autonomy will be compromised out of respect for collective interests. Ultimately, the question as to how far personal and economic liberties can be circumscribed in the name of protecting the public's health and security is answered by way of categories. The first risk category involves targeted state action to avert a significant risk to the public's health - here, liberal and communitarian thought converge in supporting state action in such instances. The second risk category refers to state action exercised arbitrarily or pretextually - again, liberalism and communitarianism converge, but in rejecting the use of such power in the absence of risk. The final category involves state action to avert a moderate risk, that is the government reasonably believes the risk is real, yet hard evidence is lacking as to the nature and probability of that risk. It is in this category that hard trade-offs exist. The framework posed in this article is one way to facilitate those decisions which will allow the use of state power to safeguard the public's health while preventing state overreaching.


 
Conference Announcement: Ethics, Politics, Criminality
    Ethics, Politics, Criminality Perspectives from Greek Philosophy and Africa International Conference Pretoria, South Africa 13-16 April 2004 To be held at the University of Pretoria Conference Centre in Pretoria from 13-16 April 2004, the conference will address a range of critically important themes in the various fields that make up the humanities today. Main speakers will include some of the world's leading thinkers in the humanities, as well as numerous paper presentations by teachers and researchers. This is a conference for any person with an interest in and concern for Greek philosophy and the humanities. Participants are also welcome to submit presentation proposals as 30 minute papers. Presenters may choose to submit written papers for publication in Phronimon before or directly after the conference. Presentations submitted for publication will be fully refereed and published in print format. Subthemes: a) The Common Good and Crime Prevention in Greek Philosophy and Contemporary Society b) Democracy, Social Justice and Criminality b) Society, Moral Education and Criminality c) Law, Punishment, Politics and Criminality d) Crime in Tribal and Community Law e) Ethics, Politics and Criminality in the Era of Globalisation f) Value Systems, Community Integration, Violence, Non-Violence and Crime g) Ethics, Criminality and the Media h) Forms and Conceptions of Criminality i) Ethics and the Olympic Truce Who Should Attend: Philosophers, including those specialising in Greek philosophy, history of philosophy, political philosophy; researchers and students; professionals in the fields of criminology, criminal justice, sociology as well as other academics across the whole range of humanities disciplines. Register: Those intending to present a paper should submit a provisional title, 5-10 keywords and an outline of not more than 500 words which makes clear the relevance of the paper to the theme or subthemes of the conference. These single-sided outlines should include: Full name, academic position, full postal and e-mail addresses. The outlines should be received before 15 February 2004 (preferably by e-mail) at catbotha@postino.up.ac.za. Papers in Greek and English are welcome. Complete papers must be received by 30 March 2004. Each presenter will have 20 minutes to present the main ideas of the paper, followed by 10 minutes for disucssion. Fees: R800.00 South African and other African participants 100 EUR Participants from Europe 110 US-$ Participants from the USA Conference Website: http://www.up.ac.za/beta/academic/humanities/eng/eng/sasgph/eng/new.htm


Monday, February 02, 2004
 
Punishment Theory Strikes Back More on capital punishment. Rick Garnett over at Punishment Theory has these comments on Matthew Kramer's defense (Part I & Part II) of capital punishment on Normblog.
Update: More on Kramer from Zontics.


 
Grokster Tomorrow Derek Slater has a very nice post over at A Copyfigher's Musings that is especially relevant today, on the eve of the Grokster case in the Ninth Circuit. Referenced in his post is a short paper titled Protecting Sony and the Internet: A Discussion and Critique of Imposing Harsher Secondary Copyright Infringement Rules to Inhibit Peer-to-Peer File-Sharing. (rtf). Read the post and download the paper!


 
Weekend Wrap Up On Saturday, the Download of the Week was an important paper by G.A. Cohen and the Legal Theory Bookworm recommended Keith Whittington's marvelous book on originalism. On Saturday, the Legal Theory Calendar previewed this weeks workshops and conferences. The Legal Theory Lexicon entry was on Speech Acts.


 
Monday Workshops Here is the roundup for workshops from hither and yon:
    At the University of Chicago's Political Theory Workshop, Luis Medina, University of Chicago, presents Who Is Afraid of Collective Intentionality? with discussion by Mariela Szwarcberg.
    At George Mason's Philosophy, Politics, and Economics series, Bruce Caldwell (Department of Economics, University of North Carolina at Greensboro) presents Hayek’s Challenge.
    At NYU, Larry Kramer presents As An American: Popular Constitutionalism, Circa 2003 (chapter from his forthcoming book The People Themselves).
    At Columbia's law and economics series, Christopher S. Yoo (Vanderderbilt University Law School) presents Copyright and Product Differentiation.
    At Oxford's Centre for Socio-Legal Studies presents Constructing a Typology of Administrative Grievances: Reconciling the Irreconcilable?.
    At Oxford's Moral Philosophy Seminar, Elizabeth Ashford (St. Andrews) presents Severe Poverty as a Human Rights Violation.
    At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Eleonora Montuschi (LSE) presents Rethinking Objectivity in Social Science.
    Update: At UCLA, Frank Partnoy (University of San Diego) presents Infectious Greed: How Deceit and Risk Corrupted the Financial Markets.


 
Green on "Dworkin's Fallacy" Michael Steven Green (George Mason University - School of Law) has posted Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us About the Law on SSRN. Here is the abstract:
    Although philosophers of law display an impressive diversity of opinion, they usually agree about one thing: Their discipline is closely connected to the philosophy of language. The extent of agreement on this point can be seen in the recent flood of books and articles exploring the connections between the two fields. In this Essay, I will argue that much of this literature is based upon a mistake. The philosophy of language generally has no jurisprudential consequences. The fact that so many philosophers of law have thought otherwise has seriously hampered progress in the field, and not just because time, effort, and paper have been wasted. Theories about the law have been accepted or rejected for the wrong reasons - on the basis of arguments about language that fail to support or undermine these theories at all. The philosophy of language appears to have jurisprudential consequences because of a mistake, which I will call "Dworkin's fallacy" in honor of the most famous philosopher of law to have succumbed to it. This Essay will analyze the fallacy and describe its negative effects. In Part I, I will describe an example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate concerns realism about reference. Can words refer in ways that transcend our current beliefs? For example, can the word "law" refer to something that people do not currently believe is law? In Part II, I will provide two examples of philosophers of law - Ronald Dworkin and Michael Moore who misderive jurisprudential conclusions from this debate. In Part III, I will describe a second example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate, which is inspired by Ludwig Wittgenstein's remarkable discussion of rule-following, concerns the fundamental question: How is it that we can intend to use a word in one way rather than another? How can we make "law" mean law instead of, say, Nilla Wafers? In Part IV, I will provide two examples of philosophers of law - Dennis Patterson and Margaret Radin - who misderive jurisprudential conclusions from this second debate. Although Dworkin, Moore, Patterson, and Radin agree about little in the philosophies of language and law, Dworkin's fallacy causes each to see a relationship between the two disciplines. Given the pervasiveness of the fallacy, we should be skeptical whenever a philosopher of law relies on the philosophy of language. Chances are, she is discussing issues that are irrelevant to her true concerns. I will end the Essay with a brief discussion of three situations to which Dworkin's fallacy does not apply and in which the philosophy of language has genuine, if limited, relevance for the philosophy of law.
My colleague Larry Alexander recommended this to me, and I read it last week. Very impressive. I do not see a way out for Dworkin that does not involve a substantial modification of his argument. My initial impression is that both Moore and Patterson can escape this criticism. In Patterson's case, my impression was that Green was trying to force Patterson's position into a mold it does not fit. In Moore's case, I think that Green relies too much on a few remarks and does not work hard to develop a charitable interpretation. Be that as it may, I found the article quite impressive. Download it while its hot!
Update: Please forgive me for neglecting to mention the $5 download fee charged by the Virginia Law Review. If I might be permitted to editorialize, this kind of charge makes absolutely no sense! Virginia is discouraging readers, but I doubt they are maximizing revenues. Authors beware!


 
Epstein, Staudt, and Wiedenbeck on Statutory Interpretation and the Code Lee Epstein , Nancy C. Staudt and Peter J. Wiedenbeck (Washington University, St. Louis - Department of Political Science , Washington University Law School and Washington University, St. Louis - School of Law) have posted Judging Statutes: Thoughts on Statutory Interpretation and Notes for a Project on the Internal Revenue Code (Washington University Journal of Law and Policy, Vol. 13, pp. 305-333, 2003) on SSRN. Here is the abstract:
    Positive analyses aimed at answering the question of why judges interpret statutes the way they do abound. Some authors suggest the primary determinant centers on the political ideology of the judges, others argue that jurists interpret statutes in a strategic fashion vis-a-vis the relevant actors in the playing field, and still others maintain that statutory interpretation has less to do with policy maximization than with principle maximization. To us, the most interesting features of the non-normative literature on statutory interpretation lie not on the distinctive conclusions generated, but rather on the commonalities. First, many of the relevant studies focus on civil rights legislation. This holds true regardless of whether the author is a legal academic or a social scientist, whether the research is primarily quantitative or qualitative, or whether the theoretical grounding is in psychology, sociology, political science, or economics. Second, almost all studies, especially those of the large-n quantitative variety, explore the outcomes reached by jurists and not the rationale or justification they invoke. These are not criticisms of the extant literature; in fact, we believe that by investigating outcomes reached in civil rights cases, authors have revealed a great deal about the "judicial mind." At the same time, we believe just as firmly that if we are to understand fully the determinants of statutory interpretation, then the emphases on civil rights and outcomes impose serious limitations. Accordingly, we have a devised a project that aspires to address these concerns by (1) exploring Supreme Court tax opinions, a large body of case law that, despite its importance, has received virtually no systematic attention, and (2) taking into account both outcomes and rationales. In this Article, we do not present results (other than the most preliminary findings) given that our data collection is still underway. Rather, we make the case for moving beyond the arena of civil rights, and for incorporating rationales into models of statutory interpretation.


 
Kuykendall on Liberty & Family Mae Kuykendall (Michigan State University-DCL College of Law) has posted Liberty in a Divided and Experimental Culture: Respecting Choice and Enforcing Connection in the American Family (UCLA Women's Law Journal, Vol. 12, pp. 251-89) on SSRN. Here is the abstract:
    This Essay examines the need to expand our societal vocabulary to better describe the varieties of family relationships present within society. After first describing the ability of language to form notions of liberty, the author focuses on the need to have our official language adequately describe the connections and choices made in familial lives. Focusing on the societal celebration of autonomy of choice and experimentation in family relationships, including the recognition of relationships between same-sex partners and other non-traditional forms of family connections, she argues that both the Right and the Left fail to recognize this autonomy of choice by the creation of legal vocabulary. Coming from a societal tradition of experimentation and a recognition of "eccentricity" in our Constitutional jurisprudence, those forming domestic units at the edge of family definitions are trying to bring a vocabulary representing both choice and connection into the public dialogue. The author describes the necessity for such a public vocabulary to change to provide adequate recognition to the new forms of family; indeed, the public dialogue has already started to recognize such terms as "non-custodial parent." Finally, she argues that such a public vocabulary is essential for the self-definition of children living within these new familial units.


 
Gutzman reviews Farber Kevin R. C. Gutzman reviews Lincoln's Constitution by Daniel Farber. Here is a taste:
    In his new book on the constitutional world and legacy of Abraham Lincoln, law professor Daniel Farber situates the constitutional career of the sixteenth President of the United States within the tradition of Alexander Hamilton, Henry Clay, Woodrow Wilson, Franklin Roosevelt, and post-World War II American statesmen and scholars. He does so through analysis of some writings of the draftsmen of the Constitution, the most readily available contemporary writings on the subject, selected jottings of Lincoln's contemporaries, opinions of various Supreme Court justices, and the paper trail of President Lincoln himself. While the book coheres on its own terms, it is exemplary of the kind of "law-office history" that historians find so frustrating. This is not to say, however, that Farber does not seriously consider the apposite questions. From the start, he focuses on the questions whether the Southern states had a right to secede, whether Lincoln usurped the Legislative and Judicial Branches' powers, whether he trampled on the constitutional rights of American citizens, and whether his government had a right to reestablish its authority over the Confederate states coercively. Since the positive side of the ledger - the freeing of the slaves - is a given, any evaluation of Lincoln's constitutional legacy must center on these issues.


 
Conference Announcement: Noise Pop Music Summit West
    2nd Annual Hastings - Noise Pop Music Law Summit West Co-presented by the Future of Music Coalition, Noise Pop, Hastings Association of Sports & Entertainment Law (ACSEL), Hastings Intellectual Property Organization (HIPO), and the Hastings Communications and Entertainment (COMM/ENT) Law Journal. This promises to be one of the most exciting events on the Hastings campus this year. COMM/ENT is extremely proud to play a part in helping to make it happen, and we are grateful to the other organizations involved for inviting us to participate. Wednesday, February 25, 2004 9:30am - 5:00pm UC Hastings College of the Law Louis B. Mayer Lounge (1st floor) 198 McAllister Street (at Hyde) San Francisco, California For directions to the law school, go to http://www.uchastings.edu/directions_01/ Confirmed panelists and speakers for this full-day event (as of January 25, 2004) include: Keynote speakers: California State Senator Kevin Murray Lawrence Lessig - Professor of Law, Stanford Law School Panelists: Chris Anderson - Editor in Chief, Wired Magazine Michael Aczon - Professor, Author, Attorney Margreth Barrett - Copyright Law Professor, Hastings College of Law Tony Berman - Attorney, Idell, Berman & Seitel Stacy Fass - Attorney, Davis Shapiro Lewit Montone Hayes Fat Mike - Punkvoter, NOFX and Fat Wreckords Joshua Koenig - Music for America Jordan Kurland - Band Manager, Label Owner, Co-Producer of Noise Pop Dave Meinert - Band Manager and PNW Recording Academy Molly Neuman - Label VP, Lookout! Records and band Bratmobile Krist Novoselic - JAMPAC, Nirvana Tim Quirk - Executive Editor, Music, Real Networks and band Too Much Joy Sandy Pearlman - VP of Media Development, Multicast Technologies, Producer and big thinker Andrew Ross - Director of Business Affairs, Sony Fred von Lohmann - Senior Intellectual Property Attorney, Electronic Frontier Foundation Jenny Toomey - Executive Director, Future of Music Coalition Shoshana Samole Zisk - Attorney and Business Affairs, George Clinton Enterprises Brian Zisk - Technologies Director, Future of Music Coalition For the latest confirmed speaker list, directions, maps, pre-registration, and more, please go to the official event web site at http://futureofmusic.org/events/hastings04/index.cfm Space is limited and response has been phenomenal so far, so please pre-register! For more information on the sponsoring organizations, please see: Future of Music Coalition: http://www.futureofmusic.org/index.cfm Noise Pop Festival: http://www.noisepop.com/ Hastings ACSEL: hastingsacsel@yahoo.com Comm/Ent Law Journal: http://www.uchastings.edu/comment/ CLE credit for attending this event may be available for bar members. Please contact COMM/ENT at comment@uchastings.edu or see the official event web site for more information.


 
Call for Papers: The Ownership of Common Goods
    Call For Papers: The Ownership of Common Goods A Special Issue of Philosophy in the Contemporary World Submissions are invited for a special issue of Philosophy in the Contemporary World to be published in 2005. The journal is a fully refereed, indexed, and copyrighted journal published by the Society for Philosophy in the Contemporary World. Philosophy in the Contemporary World welcomes creative and insightful papers on any ethical concept or problem relating to the ownership of common goods. By common goods we mean, broadly, shared resources, things held in common, and things of general interest or benefit to members of the community (understood locally or globally). Such goods include, but are not limited to, cultural artifacts, significant works of art, environmental goods (e.g., water, air, recreation areas, biodiversity, natural resources, beauty), intellectual property, pharmaceutical, medical and biological technology, media and information. Theoretical papers on the nature of ownership and property, diverse cultural perspectives on ownership, alternatives to private property, limits of ownership of private property, and possibilities of shared ownership are welcome, as are applied papers on topics such as those listed. Submission Deadlines: Completed papers due by April 31st, 2004. Submissions should adhere to the following guidelines: 1. Papers must be original unpublished work. 2. Papers between 3500-5000 words (including footnotes and bibliography) are preferred; however, papers of exceptional quality of any length will be considered. 3. All materials, including the abstract, block quotations, and notes, should be double-spaced. 4. An abstract suitable for publication should be included with submission. 5. For style see the Chicago Manual of Style, latest edition. Or request a style sheet from the journal editor, Jim Sauer (jsauer@stmarytx.edu). 6. Papers should be submitted either electronically as an attachment (Microsoft Word or RTF) or in hardcopy via regular post. Please direct all inquiries and submissions to one of the special issue editors: Ronald Sandler Department of Philosophy and Religion 371 Holmes Hall Northeastern University Boston, MA 02115-5000 USA r.sandler@neu.edu Cynthia Townley Department of Philosophy Macquarie University Sydney 2109 Australia ctownley@scmp.mq.edu.au


Sunday, February 01, 2004
 
Defending Capital Punishment Over at Normblog, there are two posts by Matthew Kramer (Professor of Legal and Political Philosophy, University of Cambridge) in defence of capital punishment: here and here. I wonder what the folks over at Punishment Theory will say?


 
Legal Theory Calendar
    Monday, February 2
      At the University of Chicago's Political Theory Workshop, Luis Medina, University of Chicago, presents Who Is Afraid of Collective Intentionality? with discussion by Mariela Szwarcberg.
      At George Mason's Philosophy, Politics, and Economics series, Bruce Caldwell (Department of Economics, University of North Carolina at Greensboro) presents Hayek’s Challenge.
      At NYU, Larry Kramer presents As An American: Popular Constitutionalism, Circa 2003 (chapter from his forthcoming book The People Themselves.
      At Columbia's law and economics series, Christopher S. Yoo (Vanderderbilt University Law School) presents Copyright and Product Differentiation.
      At Oxford's Centre for Socio-Legal Studies presents Constructing a Typology of Administrative Grievances: Reconciling the Irreconcilable?.
      At Oxford's Moral Philosophy Seminar, Elizabeth Ashford (St. Andrews) presents Severe Poverty as a Human Rights Violation.
      At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Eleonora Montuschi (LSE) presents Rethinking Objectivity in Social Science.
      Update: At UCLA, Frank Partnoy (University of San Diego) presents Infectious Greed: How Deceit and Risk Corrupted the Financial Markets.
    Tuesday, February 3
      At Oxford's Jurisprudence Discussion Group, Michael Giudice presents Participant Understanding and Legal Theory. I would be most grateful for a link to the paper or an abstract.
      At Oxford Intellectual Property Research Centre, Cathleen Blackburn presents The Law of the Rings - A Review of Intellectual Property issues recently encountered by the Tolkien Estate.
      At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Alex Bellamy (LSE) presents Deconstructing Modernity: Did Newton really overthrow Aristotle?.
      At London's Heythrop College, Simon Kirchin (Canterbury) presents Expressivism, Minimalism and Value.
      At Florida State law, Alyson Flournoy (University of Florida) presents Discovering Values in Regulation.
    Wednesday, February 4
      In London, at University College's famous Colloquium in Legal and Social Philosophy, G.A. (Jerry) Cohen (All Souls College, Oxford) presents Rescuing Justice from Constructivism.
      At London's Institute for Educaton, Roger Trigg (Warwick) presents Religion in the Public Square.
    Thursday, February 5
      At Yale's Legal Theory Workshop, John Manning (Columbia Law) presents The Eleventh Amendment And the Reading of Precise Constitutional Texts.
      At Princeton's Political Philosophy Colloquium, Seyla Benhabib (Yale University) presents The Right to Have Rights' in Contemporary Europe.
      At the University of Texas, John Ferejohn (Stanford) presents Super-Statutes," Part I and Part II.
      At the University of Michigan's law and economics series, Vicki Been (New York) presents Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?.
      At Oxford's Public International Law Discussion Group, Maurice Mendelson presents Proceedings for Revision of Judgments in the ICJ.
      At Boston University, Jules Lobel (Pittsburgh) presents Courts as Forums for Protest.
      At George Mason, Alan Schwartz (Yale Law School) presents Who Should Pay for Bankruptcy Costs?.
      At Oxford's faculty of law, Stephen Weatherill presents Competition Law and Policy - programme of visiting speakers : Competition Law and Sport.
      At Australian National University's RSSS, Andy Egan (RSSS) presents Quasi-realism and Fundamental Moral Error.
      At Florida State law, Scott Baker (University of North Carolina School of Law) presents The Partnership Penalty.
      At the University of Hertfordshire Centre for Normativity and Narrative, Gregory Currie (Nottingham) presents Narrative and Coherence and Narratives and Artefacts.
      At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Kim Hutchings (LSE) presents Speaking and Hearing: Habermasian discourse ethics, feminism and international relations .
      Update: At UCLA's tax policy series, David Schizer (Columbia Law School) presents Inconsistencies, Imbalances, and the Taxation of Derivative Securities: An Agenda for Reform.
    Friday, February 6
      At Northwestern's Constitutonal Theory Colloquium, John Harrison (University of Virginia School of Law) presents The Conceptual Structure of Constitutional Liberty.
      At the University of Texas law, Sam Bagenstos (Harvard) presents The Future of Disability Law at noon. Later in the afternoon, Margo Schlanger (Harvard) presents Damage Action Deterrence.
      At the University of Buffalo, David Rohde (Michigan State University) presents The Consequences of Party Organization in the House: The Role of Majority and Minority Parties in Conditional Party Government with comments by Jim Wooten (UB).
      At Oxford's faculty of law, Bernardine Adkins presents Competition Law and Policy.
      At Loyola Marymount, Donald P. Harris (Temple University) presents Do As I Say, Not As I Do -- The United States’ Inconsistent Approach to Intellectual Property Rights: The Case Against TRIPS From A Historical U.S. Perspective.
      At Oxford's Human Rights Discussion Group, Andrew Ashworth presents Anti-Social Behaviour Orders and Anti-Subversion Doctrines in Human Rights.
      At Oxford's Institute of European and Comparative Law, Harm Schepel presents European Product Safety: Public and Private Law in the Regulation of Self-Regulation.
      At MIT's philosophy colloquium, Philip Pettit, Princeton University) presents Freedom according to Sen.
      At Tulane's Murphy Series in Ethics and Political Philosophy, Tom Hurka (University of Toronto) presents Proportionality in the Morality of War.
      Update: At UCLA, Chris Eisgruber (Princeton) presents Equal Liberty and Religious Freedom.
      At the Lisbon Seminar in Analytic Philosophy, Manuel Garcia-Carpintero (Universitat de Barcelona) presents Fiction Making as an Illocutionary Type.


 
Legal Theory Lexicon: Speech Acts
    Introduction Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic philosophy. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, How to Do Things with Words. When we use language, we don't just communicate information or say things about how the world is; when we use language, we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which language (both oral and written) can be used to perform actions.
    Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory.
    Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value.
    O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values.
    Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions.
    Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance.
    Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions:
    • Utterance--We can use the term "utterance" to refer to the words (e.g. the sounds or letters) that constitute a particular use of language.
    • Locution--We can use the term "locution" to refer to the semantic meaning of the utterance.
    • Illocution--We can use the term "illocution" to refer to the speech act that is performed by use of a particular utterance in a particular context.
    • Perlocution--We can use the term "perlocution" to refer to the effect that a given expression has when it is uttered in a particular context.
    Take the example of the sentence, "This room is a pig sty." The utterance is simply the words that are used: suppose this is an oral statement in English made by a parent to a child on a particular occasion. The same parent could utter similar worlds in English (or another language) that have the same semantic content. "The family room is a pig sty"--would express the same propositional content as "This room is a pig sty" if "this room" was "the family room." The illocutionary force of this statement is ambiguous. If the child spoken to was responsible for the mess, then both parent and child might understand that "This room is a pig sty" is the equivalent of "Clean up this room." The same illocutionary force can be obtained by a variety of expressions. Finally, the perlocutionary effect of "This room is a pig sty" will also depend on context. The effect might be to produce shame, but it might also produce anger. Thus, one utterance has both locutionary content, illocutionary force, and perlocutonary effect.
    A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish:
    • Constatives: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring, confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting, ranking, reporting, stating, stipulating
    • Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering, permitting, requesting, requiring, suggesting, urging, warning
    • Commissives: agreeing, guaranteeing, inviting, offering, promising, swearing, volunteering
    • Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting (acknowledging an acknowledgment)
    There are other ways of slicing and dicing the types of speech acts, but Bach and Hamish's typology gives a good sense of how such a typology might work.
    Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle.
    Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make truth claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action.
    Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed.
    If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below.
    Links Bibliography
    • Austin, J. L. (1962) How to Do Things with Words, Cambridge, Mass.: Harvard University Press.
    • Bach, K. and R. M. Harnish (1979), Linguistic Communication and Speech Acts, Cambridge, Mass.: MIT Press.
    • Grice, H. P. (1989) Studies in the Way of Words, Cambridge, Mass.: Harvard University Press.
    • Searle, J. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge, Eng.: Cambridge University Press.
    • Strawson, P. F. (1964) 'Intention and convention in speech acts', Philosophical Review 73: 439-60.

    For a collection of all the Legal Theory Lexicon Posts with a table of contents, follow this link.