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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Sunday, February 29, 2004
Legal Theory Calendar
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.
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.
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.
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.
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
Background
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:
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.
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. 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:
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:
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! 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:
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:
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:
Friday Workshops
At U.B. Berkely (Boalt Hall), a conference entitled Earl Warren and the Warren Court: A Fifty-Year Retrospect. Speakers include Jesse H. Choper, Malcolm M. Feeley, Bruce E. Cain and Melissa Anderson, Yale Kamisar, William W. Van Alstyne, Gordon Silverstein, Scott Bice, James Browning, Vicki C. Jackson, Charles McCurdy, Dan Rodriguez, Lawrence M. Friedman, Harry N. Scheiber, Goodwin Liu, and Susan Sterett. At the SUNY Buffalo, Nicola Lacey, LSE, presents Causation and the Limits of Linguistic Philosophy in Anglo-American Law. At MIT Philosophy, Ruth Chang, Rutgers University, presents Can Desires Provide Reasons for Action?. At the University of Texas, a conference entitled Avenues in Comparative Constitutional Law starts today. At Tulane, the Politics, Philosophy and Economics Conference begins today. Speakers include Sam Scheffler, Marc Fleurbaey, John Roemer, Allen Buchanan, Philip Pettit, & Eric Rakowski. At Oxford's Philosophical Society, Robert M Adams presents Idealism Vindicated. 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:
Schizer on Section 1091 David Schizer (Columbia Law School) has uploaded Scrubbing the Wash Sale Rules to SSRN. Here is the abstract:
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:
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:
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)
brought to you by Quizilla Procedural Justice I've just fiished a new paper entitled Procedural Justice. Here is the abstract:
Thursday Workshops
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:
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:
Two by Ferrell Allen Ferrell (Harvard Law School) has two new papers on SSRN:
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:
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:
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:
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:
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:
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:
Balkin on the FMA & the Other Thirteenth Amendment Check out Balkin here. Here is the text of the "other" Thirteenth Amendment:
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:
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:
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:
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:
Wednesday Workshops
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:
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:
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:
Tuesday Workshops
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:
Penalver on Regulatory Taxings Eduardo M. Penalver (Fordham University - School of Law) has posted Regulatory Taxings on SSRN. Here is the abstract:
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:
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:
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:
Monday Workshops
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:
Sunday, February 22, 2004
Legal Theory Lexicon: Balancing Tests
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
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?
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.
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?.
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.
At U.B. Berkely (Boalt Hall), a conference entitled Earl Warren and the Warren Court: A Fifty-Year Retrospect. Speakers include Jesse H. Choper, Malcolm M. Feeley, Bruce E. Cain and Melissa Anderson, Yale Kamisar, William W. Van Alstyne, Gordon Silverstein, Scott Bice, James Browning, Vicki C. Jackson, Charles McCurdy, Dan Rodriguez, Lawrence M. Friedman, Harry N. Scheiber, Goodwin Liu, and Susan Sterett. At the SUNY Buffalo, Nicola Lacey, LSE, presents Causation and the Limits of Linguistic Philosophy in Anglo-American Law. At MIT Philosophy, Ruth Chang, Rutgers University, presents Can Desires Provide Reasons for Action?. At the University of Texas, a conference entitled Avenues in Comparative Constitutional Law starts today. At Tulane, the Politics, Philosophy and Economics Conference begins today. Speakers include Sam Scheffler, Marc Fleurbaey, John Roemer, Allen Buchanan, Philip Pettit, & Eric Rakowski. At Oxford's Philosophical Society, Robert M Adams presents Idealism Vindicated. 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:
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:
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:
As you know, my own approach to constitutional interpretation is Neoformalist and that means that we should look to the text first:
The key move by Hamilton in Federalist 84 is made in the form of two questions:
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 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:
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:
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:
Conference Today: Brown v. Board at the University of Virginia
Thursday, February 19, 2004
Thursday Workshops Here is the roundup:
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:
Conference Announcement: Punishment, Theory and Practice
Conference Announcement: Comparative Avenues in Constitutional Scholarship
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:
The Lost History of the Ninth Amenedment (II): The Lost Jurisprudence.
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:
Update: Levy responds to re the third point above:
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. 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:
Ninth Amendment Debate Check out this post on Southern Appeal & follow the links. Here is a taste:
Wednesday Workshops Here is today's roundup:
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:
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:
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
Call for Papers: Feminist Philosophy in the Analytic Tradition
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:
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. 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:
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:
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:
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:
Call for Papers: Ethical, Legal and Social Aspects of Human Genetic Databases
Call for Papers: Health and Human Rights
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):
Monday Workshops Here is the roundup of talks and workshops for today:
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:
Grant Announcement: Issues in Bioethics
Call for Papers: The Political Philosophy of Needs
Call for Papers: Nietzsche and Ethics
Call for Papers: Equality
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:
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.
At the University of Texas, Les Green (Texas & York) presents Strategy and Ultimate Legal Rules.
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.
At UCLA's legal theory series, Jeremy Waldron (Columbia) presents Settlement, Return, and the Supersession Thesis. 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 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?
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
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,
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:
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:
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:
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:
Online Resource Bibliography 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:
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:
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. 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:
Friday Workshops Here is the roundup:
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:
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:
Conference Announcement: Moral Testimony
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:
Call for Papers: Metaethics Workshop
Thursday, February 12, 2004
Conference Announcement: The Theory of the Criminal Law's "Special Part"
Thursday Workshops Here is today's roundup:
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:
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:
Call for Papers: Roman Virtues and Vices
Conference Announcement: Environmental Virtues
Conference Announcement: Values and Virtues
Wednesday, February 11, 2004
Wednesday Workshops Here are today's talks:
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:
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:
Call for Papers: Nietzsche and Ethics
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:
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. Tuesday Workshops Here is the roundup of workshops and talks from hither and yon:
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:
Call for Papers: Evil, Law and the States
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:
Conference Announcement: Politics and Emotions
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:
Monday, February 09, 2004
Conference Announcement: Remand Orders
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 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:
Call for Papers: Philosophy Against Empire
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:
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:
Conference Announcement: Kant's Practical Philosophy Reconsidered
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
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!
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.
At Yale's philosophy series, Zena Hitz presents THE RULE OF LAW IN PLATO'S STATESMAN.
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.
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
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:
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 :
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 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 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. 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:
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. 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:
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Constitutional Law Stories, edited by Michael Dorf. Here's the blurb:
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:
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:
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:
Court of Appeals Judges--$159,000 Supreme Court justices--$184,000 Bainbridge on the Economic Benefits of Drug Patents Re the controversy over allowing the reimportation of Canadian manufactured drugs, Stephen Bainbridge writes:
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:
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. Friday Workshops There is the roundup of workshops and talks for today:
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:
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:
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:
Call for Papers: Global Justice
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:
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.
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 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:
Egan on Quasi-Realism Andy Egan (Australian National University) has uploaded Quasi-Realism and Fundamental Moral Error . Here is a taste:
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:
Conference Announcement: Truth and Realism
Wednesday, February 04, 2004
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:
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:
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 also in London today, at the the London's Institute for Educaton, Roger Trigg (Warwick) presents Religion in the Public Square. 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:
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:
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:
Call for Papers: Privacy
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:
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
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 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:
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:
Conference Announcement: Ethics, Politics, Criminality
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 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:
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:
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:
Gutzman reviews Farber Kevin R. C. Gutzman reviews Lincoln's Constitution by Daniel Farber. Here is a taste:
Conference Announcement: Noise Pop Music Summit West
Call for Papers: The Ownership of Common Goods
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
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.
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.
At London's Institute for Educaton, Roger Trigg (Warwick) presents Religion in the Public Square.
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.
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
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: 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: 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 For a collection of all the Legal Theory Lexicon Posts with a table of contents, follow this link. |