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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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Wednesday, March 31, 2004
Felten on Mark and Trace Digital Rights Management Check out Ed Felten's post on a supposedly new Mark & Trace DRM scheme. Here is an excerpt:
Domain Name Expansion CNN reported that ICANN's latest round of domain name expansion is underway:
WTO Action Henry Farrell over at Crooked Timber recently reported:
Wednesday Calendar Just one talk today:
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the third of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. Pirates Chapter Four is called “Pirates.” Lessig expresses the thesis of the chapter as follows:
These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that “it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction.” Rather, the machines increased the sales of sheet music. In any case, the innovators argued, the job of Congress was “to consider first the interest of [the public], whom they represent, and whose servants they are.” “All talk about ‘theft,’” the general counsel of the American Graphophone Company wrote, “is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute.”
Lessig continues his story about piracy, pointing out that in the early days of radio, royalties were not paid to the owners of copyrights in the sound recordings played over the air. Similarly, early cable television providers did not pay for the right to retransmit broadcase signals. Lessig wraps the argument together at the end of the Chapter:
Piracy Chapter Four was “Pirates,” and Chapter Five is “Piracy.” Lessig’s strategy in this chapter is to distinguish two forms of piracy, commercial and noncommercial. Commercial piracy, i.e,, the wholesale illegal duplication and sale of DVDs and CDs, is bad. Noncommercial piracy is a different story. Although Lessig consistently insists that commercial piracy is wrong, he can’t seem to resist dropping the arguments that undermine his own conclusion:
That excuse isn’t terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule. The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well. Lessig knocks down a few more arguments made to justify commercial piracy and then turns to P2P:
The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the system. Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It boasts over 100 million members.) These services’ systems are different architecturally, though not very different in function: Each enables users to make content available to any number of other users.With a p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends.
Type B There are some who use sharing networks to sample music before purchasing it. Type C There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high. Type D Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. Both Type A and Type C(ii) are defined counterfactually. Type A consists of those who would purchase off the internet, if they could not get the content for free over P2P. Type B consists of those would purchase off the internet, if the off-internet transaction costs were the same as the on-internet transaction costs. But this leaves another logical possibility, Type E (added to Lessig’s A through D) consists of those who would not purchase off or on the Internet even with zero transaction costs, so long as the price includes the royalty charged by the copyright owner. Roughly speaking, Type E consists of those who will not even pay $1 to download from iTunes(or perhaps 50¢, if half of the iTune price is transaction costs). Let’s go back to Lessig’s argument:
Now things get really interesting. What should is the optimal policy for P2P users of Type A, Type C(ii), and Type E: So far, so good, but Lessig’s version of the argument is incomplete. I’ve been going along with Lessig and treating Types A, C(ii), E are distinct categories, but this is misleading. A more illuminating story would make it clear that we all are willing to pay different amounts for different content. If I am Type A with respect to a given song (or collection of songs), this means that the price I am willing to pay for the content exceeds the market price of the CD. If I am Type C(ii), then the price I am willing to pay is below the market price of the CD but above the zero transaction cost price. If I am Type E, then the price I am willing to pay is below the zero transaction cost royalty. We might add Type F, those who would only accept the file if they were paid to do so. Any given song (or content file, more generally) will likely have consumers of Type A, C(ii), E, and F. Price and Enforcement Discrimination The fact that different consumers are willing to pay different prices for any given good does not create a problem for the allocation of tangible resources. The market establishes a price for the tangible resource, and those who derive the greatest utility from the resource purchase it. (I am setting the problem of wealth effects to the side.) But with information (the pattern of bits that make up the MP3 file), there is no need to get the file to the consumers who will derive the greatest benefit. That’s because consumption of information is nonrivalrous. Everyone can have a copy. So, in the best of all possible worlds, everyone who derives any positive utility form the content would have a copy. But we do not live in the best of all possible worlds. Our world has the defect that price and enforcement discrimination on the basis of demand curves is not feasible. Boy, that was a mouthful, what do you mean? In an ideal world, copyright owners would sell copies to each potential buyer at a price the buyer was wiling to pay. If I am willing to pay $50 for a copy of the Furtwangler recording of Bruckner’s Seventh Symphony, I would be charged $50 or less. But if you were only willing to pay $1 for the same recording, your price would be $1 or less. That is, the owner of the copyright in the recording would be able to engage in price discrimination on the basis of our demand curves—our willingness to purchase a different prices. In the actual world, however, this kind of price discrimination is difficult or impossible for two reasons. First, the owner of the copyright doesn’t know how much you or I are willing to pay; so the owner doesn’t know to charge you a lower price than she charges mes. Second, even if the owner somehow did know how much we were willing to pay, it would be difficult for her to prevent you from selling your copy to me at a price that was higher than you were charged but lower than the price that I would be charged. The same point could be made about enforcement. In a better world, we could enforce the copyright laws against Type A P2P users, but not against Type C(ii) or E users. But the legal system, like the copyright owner, lacks the information as to which users are which. And even if the legal system had this information, it would be difficult to prevent Type E users from selling their free copies to Type A users. So the impossibility of price and enforcement discrimination means that we must choose between giving the copyright owner the entitlement (the right to prevent copying) against Types A, C(ii), and E P2P users or giving all P2P users the entitlement to copy. Another Wrinkle: What if there were no free P2P? There is one more wrinkle that we need to add to Lessig’s story. If P2P filesharing were effectively eliminated by some legal regime, then the economics of for-pay downloading services would change. Demand would increase, economies of scale would kick in, and hence we would expect the price per download to fall. In other words, some users who are Type C(ii) or E given the availability of free P2P filesharing would become Type A if lower cost for-pay downloading were available. This is not a criticism of Lessig’s argument, but simply a supplement to it. Balancing Now that we’ve filled in the gaps, we can see that Lessig’s version of the argument, although highly compressed, was essentially correct. Free P2P filesharing has both costs and benefits. When we ask ourselves how entitlements should be allocated, we need to look at both sides of ledger:
Songs that were heavily downloaded showed no measurable drop in sales, the researchers found after tracking sales of 680 albums over the course of 17 weeks in the second half of 2002. Matching that data with activity on the OpenNap file-sharing network, they concluded that file sharing actually increases CD sales for hot albums that sell more than 600,000 copies. For every 150 downloads of a song from those albums, sales increase by a copy, the researchers found.
Would Out-of-Print Have Become Available Without P2P? Lessig identifies other benefits of P2P. Type C(i) involves P2P filesharing of music that is no longer for sale. Lessig argues that all of category C(i) should be counted as a benefit of P2P. I don’t think Lessig is right about this. Why not? Because in the absence of free P2P filesharing, it is highly likely that for-pay downloading services for out-of-print records and CD’s would have emerged. These services could not get off the ground given that they had to compete with free P2P. (Free is better than cheap.) But cheap for-pay downloads would likely have competed quite effectively with relatively expensive (and increasingly scarce) used copies of out-of-print records and CDs. Lessig reinforces his argument that Type C(i) filesharing is a benefit of P2P by asking this rhetorical question:
Lessig then turned to Type D filesharing. Type D works are either in the public domain or the owner of the copyright has consented to free copying. In either case, the elimination of Type D copying should count as a cost of the legal prohibition of P2P filesharing. Why Not Legalization? When I arrive at this point in Lessig’s argument, I was thinking to myself that Lessig has made an effective case for legalization. Even with all my quibbles and qualifications, it seemed to me that two of Lessig’s arguments (if correct on the facts) were compelling. If P2P actually increases demand for CDs, then there is no reason to restrict P2P—unless it could be shown that the optimal level of investment in music production requires an even greater monopoly rent from music and sound recording copyrights than was afforded by the pre-P2P regimes. (And that seems doubtful.) And independently, if Lessig is correct, that the net welfare gains from free P2P to Type A, C(ii), and E users far exceeds the costs to copyright owners, then it seems highly likely that we should siimply legalize P2P. If both arguments are correct, then the case for legalization is overwhelming. But this does not seem to be the direction in which Lessig is heading. After making a compelling case for legalization, Lessig seems to be preparing the way for some sort of compromise solution. He ends the Chapter by noting that we have a “tradition” of compromise between the interests of copyright owners and consumers. When the courts ruled that cable television operators had no obligation to pay for free broadcast signals, Congress created a mandatory license scheme. When courts ruled that the music recording industry had no obligation to pay sheet music copyright owners a royalty, Congress created a mandatory licensing scheme. I am puzzled. Why does Lessig seem to back off from the radical implications of his arguments? I will need to read on to answer this question. Comments
I'd better get a license up! For now, I give permission for use of all posts on Lessig's book in any form so long as the original source of the posts is clearly identified.
The Schedule Tuesday, March 30, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the second of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. "Mere Copyists" Chapter Three of Free Culture is called "Mere Copyists," and it begins with a doozy of a story--George Eastman's development of the roll-film camera. Lessig's important point is about the legal environment that was essential for photography to flourish:
The Chapter meanders through a story about a school in San Francisco, but then it turns sharply, to the contrast between the way that 9/11 was covered by television as opposed to the Internet. Here is the key passage:
Catalogs The next chapter is called "Catalogs" and it begins with the compelling story of Jesse Jordan, a student at Rensselaer Polytechnic Institute, who developed a very effective search engine for the files on RPI's network. That search engine listed all the files on the searchable portions of the network--including, of course, mp3 (and other music) files--hundreds of thousands of them. Of course, the catalog of files also included lots of other stuff--about 75% other stuff, but nonetheless the RIAA was not amused and Jesse Jordan received a demand letter and the RIAA wanted all of his savings in exchange for dropping the suit against him. A great story! This is an example of the filesharing phenomenon where all of the equities and most of our moral intuitions are on the side of the defendant! Where will Lessig go with this? Chapter three was short and sweet. It certainly got my intuitions pumping wildly in favor of P2P users and against the RIAA. Comments from Hither and Yon
The Schedule Tuesday Calendar
At Columbia's IP series, David O. Carson, Esq., General Copyright Office, presents The Anti-Circumvention Provisions in 17 U.S.C. §1201: What is the appropriate balance between technological protection, and copyright exceptions and limitations? Monday, March 29, 2004
Joel Feinberg Christopher Maloney writes:
Weekend Wrap Up On Saturday, the Download of the Week was What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy?) by William Talbott. The Legal Theory Bookworm recommended Free Culture by Lawrence Lessig--and today an eight part session of the Legal Theory Bookclub on Lessig's book begins. Also on Saturday, the regular feature on the top downloads on SSRN. Sunday, the Legal Theory Calendar previewed this week's workshops, talks, and conferences, and the Legal Theory Lexicon entry was on Public and Private Goods. Allen Buchanan's Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law Is Out I recommended this important book by Buchanan months ago. There is a long story about a badly formatted edition being recalled by the publisher, but the real thing is out now. My thanks to Jacob Levy for the news! Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the first of eight posts on Lessig's book--a sort of blogospheric book club. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. What Is Free Culture About? So what is Free Culture about? As I begin to read the book, I've got quite a few preconceptions. Lessig's work in the Eldred case, challening the Copyright Term Extension Act which retroactively extended most copyright terms for 20 years, was all about the effect of copyright extensions on the "public domain," works that are outside the protection of copyright. So I'm expecting a book about the value of the public domain. In the Preface, Lessig gives a hint about what is to come:
Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written. The Introduction: "Cujus est solum ejus est usque ad coelum et ad inferos” A maxim of the common law went:
“Common sense revolts at the idea.” Chapter One tells another story--that of Edwin Howard Armstrong--who invented FM radio. Lessig tells us about Armstrong's battle with RCA, which attempted to surpress Armstrong's superior technology in order to protect its market position in AM radio. Another good story, and again Lessig is making vivid a general point about law and technology. Stakeholders in the status quo will use the law--both fairly and unfairly--to protect their interests, even at the expense of progress that is manifestly in the public interest. Lessig ties some of these ideas together towards the end of the introduction:
Creators Chapter One of "Free Culture" is titled "Creators." This chapter tells two, very compelling, stories about the value created by copying. The first story, familiar from Lessig's prior work, is about Walt Disney. Lessig argues that the early history of Disney's creative output was based on derivative works. Early Disney cartoons borrowed form, parodied, and mimiced a variety of works. Some were in the public domain (Snow White, others were relatively new works, still in copyright--(Steamboat Willie ripped Steamboat Bill, Jr., a Buster Keaton film). The second story is about doujinshi--a form of Japanese comic book in which a source comic is reworked and tranformed. Japanese copyright law is not so different than the copyright laws of the United States. So, quite naturally, Lessig asks, why don't the owners of the originals sue?
Copynorms are the sea we swim in when we think about copyright law. We don't see them, except when they begin to break down or change. Doujinshi are "ok;" they are within the accepted bounds of behavior. P2P filesharing is a bit different though. P2P did not creep up on us, alterning norms as it went. P2P exploded; it was a "big bang" transformation of copybehavior. In one segment of the culture, college dorms and teenage bedrooms, the copynorms went one way. "This is just sharing. It's like sharing compiliation cassette tapes." In the IP industry, the copynorms went another way. "This is just theft. It's like running an pirate CD pressing plant." Let's return to Lessig's theme:
The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard question instead is “How free is this culture?” How much, and how broadly, is the culture free for others to take and build upon? Is that freedom limited to party members? To members of the royal family? To the top ten corporations on the New York Stock Exchange? Or is that freedom spread broadly? To artists generally, whether affiliated with the Met or not? To musicians generally, whether white or not? To filmmakers generally, whether affiliated with a studio or not? Tomorrow I will continue tomorrow with Chapters Two and Three. The full schedule of posts is set out below. The Schedule Monday Calendar
At New York University, Eleanor Fox presents Taming Unruly Horses: The Laboratory of Global Antitrust. Here is a taste:
The antitrust community is relatively far advanced in grappling with the problems of coherence and sovereignty; yet numerous questions remain. This essay explores four specific antitrust problems of globalization. The first two are case-specific problems of external effects of national decision-making: the Empagran case, now pending before the U.S. Supreme Court, and the Microsoft case, decided by the European Commission on March 24, 2004. The third is less a problem than a description: how the world community is handling the proliferation of pre-merger filing laws; convergence has been championed by the business community and a process is under way. The fourth and final episode describes the plight of developing countries vis-à-vis an emerging world system, and identifies this problem as least amenable to a common understanding, least understood, and least under control. The paper draws some conclusions regarding methodologies likely to succeed, circumstances congenial to success, and indeed what is success. Posner & Yoo on International Adjudication Eric A. Posner and John C. Yoo (University of Chicago Law School and University of California at Berkeley School of Law) have posted A Theory of International Adjudication on SSRN. Here is the abstract:
Hoofnagle on FTC Privacy Efforts Chris Jay Hoofnagle (Electronic Privacy Information Center) has posted Privacy Practices Below the Lowest Common Denominator: The Federal Trade Commission's Initial Application of Unfair and Deceptive Trade Practices Authority to Protect Consumer Privacy (1997-2000) on SSRN. Here is the abstract:
Vranas on Doris Peter Vranas (Iowa State, Philosophy) has posted a review of John Doris's Lack of Character. Here is a taste:
Sunday, March 28, 2004
Legal Theory Calendar
At New York University, Eleanor Fox is presenting.
At Columbia's IP series, David O. Carson, Esq., General Copyright Office, presents The Anti-Circumvention Provisions in 17 U.S.C. §1201: What is the appropriate balance between technological protection, and copyright exceptions and limitations?
At the University of Texas, Brian Leiter's outstanding law and philosophy program is hosting John Gardner, the Professor of Jurisprudence at Oxford University. Gardner will deliver the Leon Green '15 Lecture in Jurisprudence and participate in the Berman/Sager Colloqium in Constitutional and Legal Theory. Today Gardner presents Backwards and Forwards with Tort Law. At UCLA's tax policy series, Steve Sheffrin, UC Davis Economics Department, presents Understanding Public Attitudes Toward Taxation: 1. Are Surveys of Taxpayers' Honesty Honest? 2. Can Brute Deterrence Backfire--Perceptions and Attitudes in Taxpayer Compliance. and 3. Perceptions of fairness in the crucible of tax policy. At Michigan's Olin series, Dean Lueck, Arizona, presents Property Law. At George Mason, Giuseppe Dari Mattiaci, Nancy 2 University and GMU School of Law, presents Voluntary Slavery. At Boston University, John Coffee is presenting.
At the University of San Diego, the Institute for Law and Philosophy is hosting a Roundtable on What Is Legal Interpretation. The participants include Dean Stanley Fish ? University of Illinois at Chicago, Dagfinn F?llesdal ? Stanford University, Department of Philosophy, Elizabeth Garrett, University of Southern California Law School, Jeffrey Goldsworthy, Monash University School of Law, Australia, Kent Greenawalt, Columbia University School of Law, Mark Greenberg, Princeton University Department of Philosophy, Provost Steven Knapp, The Johns Hopkins University, John Manning, Columbia University, School of Law, Matthew McCubbins, University of California, San Diego, Political Science Department, Walter Benn Michaels, University of Illinois, Chicago, Department of English, Michael Moore, University of Illinois College of Law, Dennis Patterson, Rutgers school of Law, Camden, Frederick Schauer, Harvard University, JFK School of Government, Scott Shapiro, Yale Law School, Walter Sinnott-Armstrong, Dartmouth College, Department of Philosophy, Adrian Vermuele, University of Chicago School of Law, Jeremy Waldron. Columbia University School of Law, Barry Weingast, Stanford University, Department of Political Science, and Keith Whittington, Princeton University, Department of Politics. Larry Alexander has outdone himself! John Gardner's visit to the University of Texas continues with the Leon Green '15 Lecture in Jurisprudence. Legal Theory Lexicon: Public and Private Goods
It may be helpful to quickly preview the basic idea. So here goes: A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following: The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.) "Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time. "Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law. Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle. But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should. As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed. The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two: Table One: Public, Private, Common Pool, Toll, and Club Goods. __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ We've covered the first two categories, but we need to consider categories three and four. So let's do that now. Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods." One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property. Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.) Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course. Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good. Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward. Saturday, March 27, 2004
APA Pacific Division: Saturday Afternoon Here are some of the programs of particular interest to legal theorists:
Mini-Conference on Global Justice A mini-conference on global justice is being held in conjunction with the APA Pacific Division. The program can be found here. Speakers include Charles Beitz, Michael Blake, Ryoa Chung, Daniel Wikler, Soran Reader, Larry May, Elizabeth Ashford, and many others. APA Pacific Division: Saturday Morning Here are some of the programs of particular interest to legal theorists:
Legal Theory Bookworm The Legal Theory Bookworm recommends Larry Lessig's new book Free Culture. The whole book can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble). I am going to be posting my thoughts on Free Culture, beginning on Monday, March 29 and continuing over the next several days. If you would like to read along with me, here is the schedule for my posts:
Download of the Week This week the Download of the Week is What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy?) by William Talbott (University of Washington, Philosophy). Here is a taste:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:
Friday, March 26, 2004
Julia Annas, Presidential Address at the American Philosophical Association Pacific Division At 6:00 p.m., this evening, Julia Annas (University of Arizona) will deliver her Presidential Address at the Pacific Division meeting in Pasadena, California. Her title is "Being Virtuous and Doing the Right Thing." APA Pacific Division This Afternoon Here are some events of particular interest to legal theorists:
Endowment Effects Will Baude has a nice post on endowment effects based on the experiences of co-blogger Amanda Butler at the Newdow arguments. Here is a snippet:
APA Pacific Division Today Here are some of the programs at the APA Pacific Division in Pasadena This Morning:
Friday Calendar
At the University of Texas's law and philosophy program, there is a Conference on "Methodology in Legal Philosophy" with papers by Liam Murphy (Law & Philosophy, New York University), Nicos Stavropoulos (University Lecturer in Legal Theory, Oxford University), and Benjamin Zipursky (Law, Fordham University). Yale Law School is hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference today through March 28, 2004. At Michigan State, starting today and continuing Saturday, a conference entitled Intellectual Property, Sustainable Development, and Endangered Species: Understanding the Dynamics of the Information Ecosystem. At Indian University (Bloomington), Rick Hasen presents Buckley is Dead, Long Live Buckley. Be there or be square! At SUNY Buffalo, Elisabeth Clemens, Chicago, presents Making a Market in Education? Arizona's Charter Schools as an Experiment in Institutional Change. At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia ends his series of Seybert Lectures. The third is The Evolution of Values. At Vanderbilt today, there is a Law and Business Conference entitled Executive Compensation. At Oxford's faculty of law, there is a program on Guantanamo Bay. At the University of Pittsburgh's series on Classics, Philosophy and Ancient Science, Tony Long (University of California at Berkeley) presents Eudaimonism, Rationality, and Divinity in Greek Ethics. At Tulane's philosophy series, Jon Riley, Tulane, presents Rousseau's Social Contract. Conference Today at Yale: Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference Yale Law School is hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference today through March 28, 2004. Here is the description:
Hemphill on the ATSB Thomas A. Hemphill (George Washington University - Department of Strategic Management & Public Policy) has posted Can a Libertarian Accept the ATSB? (Regulation, Vol. 26, No. 1, pp. 10-11, Spring 2003). Here is the abstract:
Thompson on Human Form Michael Thompson has posted Apprehending Human Form. Here is a taste:
Confrence Announcement: New Sources of Norms in International Law
Sandefur & Lynch Debate Plea Bargaining
Thursday, March 25, 2004
Lash on the Ninth Amendment and the Proposed FMA I posted yesterday on the relationship between the text of the Ninth Amendment and the text of the proposed FMA, which reads:
Thursday Calendar
At U.C. Berkeley's GALA series, William Talbott (University of Washington, Philosophy) presents What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy? At Oxford's Faculty of Law, Douglas Baird presents The New Face of Chapter 11. At Oxford's Public International Law Discussion Group, Ryszard Piotrowitz presents The Emerging International Regime on People Trafficking . At UCLA's legal history series, David Konig, Washington University in St. Louis, presents The Color of Money and Color of Law: Credit, Law, and the Forming of a Property Regime in Seventeenth-Century Virginia. At Princeton's public law colloquium, Jeffrey Staton (Florida State University) presents When Judges Go Public: Building the Judiciary through Media Relations. At UCLA's tax policy series, Al Harberger, UCLA Economics Department, presents Top Ten Lessons from Public Finance At University College, London, Gisela Striker (Harvard) presents Mental Health and Moral Health: Moral Progress in Seneca's Letters. Emens on Compulsory Monogomy Elizabeth F Emens (University of Chicago - Law School) has posted Monogamy's Law: Compulsory Monogamy and Polyamorous Existence on SSRN. Here is the abstract:
Marmor on Constitutional Interpretation Andrei Marmor (University of Southern California - Law School) has posted Constitutional Interpretation on SSRN. Here is the abstract:
Mann on the Software Patent Thicket Ronald J. Mann (University of Texas at Austin - School of Law) has posted The Myth of the Software Patent Thicket: An Empirical Investigation of the Relationship Between Intellectual Property and Innovation in Software Firms on SSRN. Here is the abstract:
Wednesday, March 24, 2004
Essay Contest: Law & Aesthetics
Froomkin on National ID Cards Michael Froomkin has posted a new version of his paper, The Uneasy Case for National ID Cards. Here is a taste:
Copyfight Goes Group One of my very favorite blogs--Copyfight--is now a group blog with Donna Wentworth, Ernest Miller, Elizabeth Rader, Jason Schultz, Wendy Seltzer, and Aaron Schwarz. That's a teriffic lineup. Check it out! FMA & the Ninth Amendment Stepehen Bainbridge pointed to the text of a new version of the Federal Marriage Amendment:
Of course, all of this is academic at this point, as it appears that no version of the FMA currently has a serious chance of making it through the Senate. For on this proposed version, check out Balkin. Thursday Calendar
At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia begins his series of Seybert Lectures. The first is Beyond Religion. At Loyola Marymount, Kathryn Boalt Hall School of Law, University of California at Berkeley, presents Fostering Agency through Social Programs: The Case of Welfare Reform. At NYU's legal history series, Felice Batlan, Graduate Student of History, NYU, presents The Purified Tenements: Municpal Citizenship, the Expanding Public, and the Myth of Laissez-Faire . At London's Heythrop Philosophy Society, Stephen Mulhall (New College, Oxford) presents Nietzsche's Genealogy of Humanity. Distinguished Lecture Announcement: Balkin at Cardozo On April 27 at 6:00 p.m., Jack Balkin will give the Uri & Caroline Bauer Memorial Lecture at the Benjamin Cardozo Law Schoo. Balkin's title is "Plessy,Brown & Grutter: A Play in Three Acts." Balkin is one of the very best--mark your calendars! Brophy on the Torts Analogy for Reparations Alfred L. Brophy (University of Alabama - School of Law) has posted Reparations Talk: Reparations for Slavery and the Tort Law Analogy (Boston College Third World Law Journal, Vol. 24, pp. 81-138, 2004) on SSRN. Here is the abstract:
Beach on Constitutional Bargaining Derek Beach (University of Aarhus) has posted Towards a New Method of Constitutional Bargaining? The Role and Impact of EU Institutions in the IGC and Convention Method of Treaty Reform on SSRN. Here is the abstract:
Durham on Copyright & Information Theory Alan L. Durham (University of Alabama - School of Law) has posted Copyright and Information Theory: Toward an Alternative Model of Authorship (BYU Law Review, 2004) on SSRN. Here is the abstract:
Madoff on Mediating Probate Disputes Ray D. Madoff (Boston College - Law School) has posted Mediating Probate Disputes: A Study of Court Sponsored Programs (Real Property, Probate and Trust Law Journal, Vol. 38, pp. 697-725, Winter 2004) on SSRN. Here is the abstract:
Tuesday, March 23, 2004
Blogging from Cardozo: Session Four on Reform
Dellinger advances a half-serious proposal on the filibuster. A filibuster should be terminated when Senators representing a majority of the population vote for cloture. McGinnis Next up is Prof. John O. McGinnis, Northwestern University School of Law. McGinnis’s paper is entitled Supermajority Rules in Judicial Confirmations--coauthored with Michael Rappaport. An ideal supermajority rule would not be a filibuster rule, but a rule that would require a supermajority vote for confirmation itself. Such a rule would result in a different set of judges. Would the supermajority rule produce better judges? To decide whether it would be a good thing, you need a theory of judging. Suppose we have a realist theory of judging. In that context, a supermajority rule might defend the rights of the majority. Constitutional amendments require supermajority; if realism is right, then the Supreme Court is a perpetual constitutional convention. Requiring 60 votes for confirmation is a less stringent rule than applied for constitutional amendments. What are the costs of a supermajority rule? It might keep the most talented judges off the bench. Once you have a 60 vote rule, there may be even more opposition to distinguished judges, because it is easier to defeat them. McGinnis discusses several other costs briefly, and concludes that it is not clear that a supermajority rule is a good idea. McGinnis then turns to the question whether there should be a rule that requires a hearing on nominees, unless a supermajority votes against holding the hearing. When candidates don’t get hearings, then even good candidates may be defeated. Marshall The next speaker is Prof. William P. Marshall, University of North Carolina School of Law. Marshall’s paper is Constitutional Law as Political Spoils. Marshall is one of the most respected constitutional scholars and an alumnus of the Clinton administration. Marshall introduces his remarks by saying he will end on a note of pessimism. The system is broken and may not be fixable. The politics of political destruction has taken over the process. And if we confirm someone who has radical views, does that license radical judging? The real villain is legal realism. Not crude legal realism, but a modest sort of legal realism. Recently, the abandonment of objective law has entered the judicial selection process. This was evident in the Bork hearings, and in the nomination practices of the Reagan administration. Marshall argues that the Clinton administration was less ideological, in part because the Clinton administration supported the judicial status quo. Most recently, in Republican Party of Minnesota v. White, the United States Supreme Court recognized the right of candidates for judge to campaign on the basis of their stances on particular legal issues. Why is this bad? Marshall is troubled, because he believes that partisan politics is not a good way to play out the development of constitutional law. Hardball politics is not a good way to shape the future of the Constitution. But no one has an incentive to change the nature of the process. The winners in the political game won’t give up power. What about the other side? If judgeships are like legislation, then, of course, you will use every possible tactical tool to fight your political battles. The only way to end the stalemate is through an act of statesmanship. Marshall hoped that President Bush might have tried to end the cycle of payback. But that didn’t happen. Both sides, left and right, want to change the nature of the federal courts. Given that, neither side will be willing to forgo the use of the power that goes with holding the Presidency. Hamilton Comments were provided by Prof. Marci Hamilton, Benjamin N. Cardozo School of Law. I always enjoy Hamilton’s remarks—which I usually see at intellectual property conferences. Hamilton argues that both parties have abandoned the public good. The Constitution is set up to allow Senators and Presidents to pursue the public good, but neither side is doing that. The founders would have asked us to look at the virtue of those who occupy office. Madison was worried that there are not enough virtuous men to make the system work. The only thing that will stop the cycle is statesmanship. Someone would need to say, I am looking for fair-minded people. The truth of the matter is that federal judges spend most of their time on drugs and the sentencing guidelines. They don’t get the political cases very frequently, but what that proves is the politicization of the process. The answer to a lack of virtue is checks and balances. We are supposed to experiment with new ways of making the system work. Dellinger’s proposal would require an incredible change of attitude that isn’t likely to work. With respect to McGinnis’s proposal to require committee votes absent a supermajority vote to delay, Hamilton says, “Why not? If it works, wonderful. If not, try something else.” However, Hamilton disagrees with the idea that the legislature is supposed to be majoritarian. Federalist Number Ten makes it clear that legislatures are not supposed to be majoritarian; legislatures are supposed to seek the common good. Senators are free to disregard out opinions during their relatively long terms. Blogging from Cardozo: Session Three on The Constitutional Law Of The Appointments Process
Chemerinsky then moves to the argument that filibusters are antimajoritarian. Filibusters, says Chemerinsky, is one of many antimajoritarian features of our system, including the apportionment of the Senate itself. Antimajoritarian checks serve to protect minorities. The filibuster is used, he argues, to protect minorities. Chemerinsky then shifts his argument and claims that the filibuster makes judicial nominees more majoritarian—but I think that Chemerinsky means more centrist not more majoritarian. Fisk then discusses the historical precedents. The filibuster is one of several Senatorial checks. (1) One is the “blue slip,” which gave home state Senators the opportunity to veto a nominee’s consideration by the Committee. (2) Another is the “hold,” a request for delay to give a Senator additional time to investigate a nominee. (3) Yet another is the committee system which allows a small number of committee members to block a nomination. (4) Other tools have been used to control nominees; for example, oversight hearings have been used to prevent executive branch appointees from carrying out their policies. (5) A threat of noncooperation on other issues—e.g. legislation—can be used to thwart nominations. Chemerinsky then points out that Republicans have proposed changing the filibuster rule solely for judicial nominees. Chemerinsky argues that there is no good reason to treat judicial nominations differently than other nominations—on this point, his argument was quite persuasive to me. On the role of ideology, Chemerinsky argues that the consideration of ideology is entirely appropriate and that the Democrats have been insufficiently ideological in opposing Bush’s nominees. Fisk then addressed the question whether filibusters can legitimately be used for obstruction, as opposed for the purpose of facilitating extended deliberation. She argues that this distinction is not supported by the history of the Senate—where there is a long history of obstructionist filibuster. Chemerinsky concludes that Rule 22, although unconstitutional, can only be changed in accord with Rule 22. This last point proved quite controversial in the Q & A period. John McGinnis pressed Chemerinsky, suggesting that when Rule 22 was applied, a constitutional objection could be made and the chair (the President of the Senate (VP of the US) could then rule on the objection. Chemerinsky stuck to his position, arguing that the chair lacks authority to rule on such a motion. In informal discussions after the session, several participants continued to press on this point, arguing that the Senate Rules are subject to the Constitution, just like any other law. Rudenstine Next up is David Rudenstine, Dean of the Benjamin N. Cardozo School of Law. His topic is Advice and Consent. The Senate, he said, has done too little advising and too much consenting. Rudenstine recounts the story of Justice Routledge’s giving George Washington the advice that Routledge be appointed as Chief Justice. His second story concerned Justice Cardozo, who was appointed by Hoover, perhaps in response to pressure from a powerful Senator. I think Rudenstine’s characterization of the history is wrong. There are literally hundreds (perhaps thousands) of documented cases of Senators giving Presidents advice on judicial nominees. Indeed, advice is the norm, not the exception. Rudentstine then presents five models of advice and consent. (1) The feather approach—that is, undue deference to the President. In the middle of the twentieth century, only one Justice was rejected. (2) The hammer approach—that is, raw political strife between the Senate and the President. An example is post-Civil War reduction of the size of the Supreme Court in order to prevent President Johnson from even having the opportunity to nominate a Supreme Court Justice. (3) The boa-constrictor approach—the approach that eliminates consideration of “ideology” or Rudenstine prefers “judicial philosophy.” Powell and Blackmun, for example, were overwhelmingly confirmed, without any real consideration of their worldviews. (4) The curtain approach—Senators say they consider character and competence, but really consider judicial philosophy behind the curtain. (5) The banana-split model. Everything should be out in the public. This model, he argues, is realistic and consistent with the Constitution. That clause was intended to give the Senate a meaningful role in the process. Rappaport Prof. Michael Rappaport, University of San Diego School of Law, is next. His talk is entitled The Original Meaning of the Recess Appointments Clause. Rappaport’s position is that the recess appointments by President Bush are unconstitutional if we follow the original meaning of the recess appointments clause. The original meaning of the clause allows recess appointments only if two conditions are met: (1) the vacancy arises during a recess of the Senate, and (2) the recess is an “intersession” recess and not an “intrasession” recess. Rappaport first addresses the question whether the vacancy must “arise” during a recess or whether it is sufficient that the appointment “exist” during a recess. The language of the clause—vacancies that may happen during the recess—seems to strongly support the limitation of the clause to vacancies that come into being while the Senate is in recess. Moreover, almost all of the early history from the founding period supports the “arise” interpretation of the clause. Finally, Rappaport argues, the structure of the Constitution, with a major role for the Senate in confirmation, is most consistent with the “arise” interpretation. Rappaport then turns his attention to the problem of late-arising vacancies, i.e. vacancies that occur during the waning days of the Senate. He argues that this policy problem can be handled by “acting” positions, e.g. the deputy AG becomes AG if the AG is incapacitated, dies, or resigns. Finally, Rappaport turns to the question whether the clause applies to intrasession recesses. The modern view is that even short intrasession recesses trigger the recess appointments power, but Rappaport argues that the power is limited to recesses that are between sessions. Rappaport argues that the Constitution distinguishes “recesses” from “adjournments,” and that only the latter are short breaks within a session. Moreover, recess appointments last until the end of the next session of Congress—it would be odd for this to be the term if short intrasession recesses were intended to be covered by the clause. Moreover, intrasession recesses can be quite short—one day or even a single night. There is no good reason for allowing recess appointments during such a short period. Rappaport’s argument is quite compelling. (Since his office is next to mine, he’s had many opportunities to persuade me.) But Rappaport’s argument is limited to the original meaning and does not directly address the long historical practice that runs contrary to the original meaning. Hartnett The next speaker is Prof. Edward Hartnett, Seton Hall Law School. His talk is entitled Recess Appointments of Article III Judges. Unlike Rappaport, Hartnett defends the broad, modern interpretation of the recess appointments clause. Harnett argues that things can happen over an extended period of time. So, he argues, that a vacancy “happens” during the whole period the vacancy exists. The “exists” interpretation, Hartnett argues, dates back to 1823, and late-arising vacancies provided a perfectly sensible reason for this interpretation. Harnett also makes the argument that under the “arises” interpretation, the President could wait until the Senate is back in session and then fill a vacancy that remains open—an absurd result. With respect to intrasession recesses, the modern practice did not arise until the 1860s, but it was not until then that extended intrasession recesses arose. The argument that intrasession recesses are not allowed does not come about until Theodore Roosevelt’s Presidency. Harnett also points out that there could be a very very short intersession period—if one session runs into the next. Hartnett also argues that the term of recess appointments is consistent with intrasession recesses. Different legal mechanisms work to determine recess and session. Sessions require action by law. Recesses are set by concurrent resolution. So is there any limit at all? This is troubling, says Hartnett. Maybe there is a three-day limit—each House can recess for three limits without the consent of the other. Or perhaps, this is a political question. The Senate and President have political means suggestion themselves. Does the recess appointments power apply to the judiciary? Hartnett says the text supports judicial recess appointments. What about life tenure? Recess appointees do not have life tenure. This argument was not raised until the 1950s. And recess appointees cannot be removed by the President; they have good behavior protection for the term of the recess appointment. Herz Michael Herz from Cardozo provided comments. His first observation is that there is only one appointments clause, but the clause applies to many different kinds of officers. This one-size-fits-all approach is going to give rise to problems. Take the recess appointments clause. The text supports Rappaport’s narrow interpretation, but this is inconsistent with the purpose of the clause, which applies even if the vacancy first arose during the time when the Senate was in session. Could we have two recess appointments clauses? One for judges, another for all other officers. Herz suggests that we could—that in practice judicial confirmations are treated differently than other confirmations. Recent recess appointments, says Herz, have nothing to with the purpose of the recess appointments clause. There is no threat to the effective functioning of the judiciary. Can we have a dead constitution with living purposes? Finally, Herz notes that Thurgood Marshall’s appointment to the Second Circuit was held up for a very long time. There was a protracted struggle. Marshall was a recess appointee. One of the things that kept the nomination bottled up was the threat of a filibuster. Kennedy considered giving Marshall a second recess appointment. Marshall was considered out of the mainstream. We should keep this story in mind. Blogging from Cardozo: Session Two on The View from DC The speaker at the second session was Helaine Greenfeld, Senior Nominations Counsel to Senator Patrick Leahy; her talk was entitled The View From D.C.. Greenfield provided a fascinating narrative of the last decade of confirmation battles from the Democratic perspective. One of her points was that Senator Leahy allowed confirmation of many more of President Bush’s nominees than Senator Hatch allowed of President Clinton’s nominees. A major portion of Greenfield’s talk was devoted to the proposition that the Democratic filibuster of Estrada, Owens, Pickering, et al, was not based on ideology. Rather, she argued, the opposition to these nominees was based on their lack of “qualification” of these nominees. The first part of Greenfield’s talk, which pointed out Republican obstruction of Clinton nominees was very serious seemed quite right to me. The second part of her talk was interesting in part because her line—that the opposition was not based on political ideology—contrasts sharply with the stance of many of the supporters of filibusters, both in and out of the academy, which has been based precisely on ideology. I asked Greenfield a question about the so-called “nuclear option,” i.e. a change in the Senate Rules that would eliminate or limit the filibuster of judicial nominees. Did the Democrats in the Senate take the nuclear option seriously? Greenfield’s answer was no. Republicans lacked the votes to get cloture on an amendment to the Senate Rules—the high road to ending the filibuster. And the low road, essentially getting a ruling of the chair to avoid the necessity of a two-thirds vote on cloture would have led the Democrats to shut down the Senate, a price that Democrats calculated that Republican’s would not be willing to pay. Blogging from Cardozo: Session One on Judicial Selection I am blogging from the Joseph Burns Moot Court at the Benjamin N. Cardozo School of Law at the corner of Tenth Street and Fifth Avenue in New York. I was on the first panel. It would have been impolite to take notes, so I don’t have detailed comments. Here was the lineup:
Prof. Judith Resnik, Yale Law School, Judicial Selection, Independent Jurists, and Life Tenure. Prof. Lawrence Solum, University of San Diego School of Law, Judicial Selection: Ideology Versus Character. Prof. David Yalof, University of Connecticut, A Bridge Too Far? Interpreting Lower Courts Appointments of Today Within the Framework of Supreme Court Appointments of Tomorrow I enjoyed all of the papers. Judith Resnick gave especially illuminating remarks, emphasizing the historical changes the federal judiciary. Most federal judges, she noted, are administrative law judges—wielding authority that would have been unthinkable for a non-Article III adjudicator before the New Deal. In addition, today there are hundreds of non-Article III bankruptcy judges and magistrates. And there are many, many more Article III judges. Moreover, the federal courts business has expanded and changed in nature. In other words, we fact a judicial selection task that is far different today than was faced 100 years ago. Dawn Johnsen’s comments focused mainly on my presentation—with which she strongly disagreed. One of Johnson’s moves was to distinguish between political ideology and legal ideology. Johnson argued that consideration of legal ideology is legitimate, even if it would be improper to consider purely political ideology. Johnson also questioned the notion that formalist even possible judging possible. But if formalism isn’t possible, then what is the difference between political and legal ideology? Johnsen’s comments were intelligent and fair. Monday, March 22, 2004
Weekend Update On Saturday, the Download of the Week was Respect-Worthy: Frank Michelman and the Legitimate Constitution by Jack Balkin. Also on Saturday, the Legal Theory Bookworm recommended Alexander Bickel's classic, The Least Dangerous Branch and links were provided to SSRN Top Recent Downloads. On Sunday, the Legal Theory Lexicon entry was Concepts and Conceptions and the Legal Theory Calendar previewed this week's conferences, talks, and workshops. Monday Calendar
At Columbia's law and economics series, Henry Hansmann, New York University, School of Law, presents Legal Entities, Asset Partitioning, and The Evolution of Organizations, authored with Reinier Kraakman, and Richard Squire. At NYU, Deborah Schenck is presenting. At Florida State University, Eric Talley, University of Southern California Law Center, Experimental Study of Law. At Vanderbilt's Law & Business Seminar Series, David Denis is presenting. Noah on the Human Embryo Research Debate Lars Noah (University of Florida - Fredric G. Levin College of Law) has posted A Postmodernist Take on the Human Embryo Research Debate (Connecticut Law Review, Vol. 36, 2004) on SSRN. Here is the abstract:
Norman & Trachtman on Customary Internatonal Law George Norman and Joel P. Trachtman (Tufts University - Department of Economics and Tufts University - The Fletcher School) have posted The Customary International Law Supergame: Order and Law on SSRN. Here is the abstract:
Dubber on German Criminal Law Markus Dirk Dubber (University at Buffalo School of Law) has posted The Promise of German Criminal Law on SSRN. Here is the abstract:
Page & Lopatka on Antitrust Experts William H. Page and John E. Lopatka (University of Florida - Fredric G. Levin College of Law and University of South Carolina - School of Law) have posted Economic Authority and the Limits of Expertise in Antitrust Cases on SSRN. Here is the abstract:
Dougan on the EU Constitution Michael Dougan (University College London) has posted The Convention's Draft Constitutional Treaty: A 'Tidying-Up Exercise' that Needs Some Tidying-Up of its Own on SSRN. Here is the abstract:
Conference Announcement: High Tech IP Issues in a Global Marketplace
Sunday, March 21, 2004
Legal Theory Calendar
At Columbia's law and economics series, Henry Hansmann, New York University, School of Law, presents Legal Entities, Asset Partitioning, and The Evolution of Organizations, authored with Reinier Kraakman, and Richard Squire. At NYU, Deborah Schenck is presenting. At Florida State University, Eric Talley, University of Southern California Law Center, Experimental Study of Law. At Vanderbilt's Law & Business Seminar Series, David Denis is presenting.
At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia begins his series of Seybert Lectures. The first is Beyond Religion. At Loyola Marymount, Kathryn Boalt Hall School of Law, University of California at Berkeley, presents Fostering Agency through Social Programs: The Case of Welfare Reform. At NYU's legal history series, Felice Batlan, Graduate Student of History, NYU, presents The Purified Tenements: Municpal Citizenship, the Expanding Public, and the Myth of Laissez-Faire . At London's Heythrop Philosophy Society, Stephen Mulhall (New College, Oxford) presents Nietzsche's Genealogy of Humanity.
At Yale's Legal Theory Workshop, the speaker is Michael Froomkin (Univeristy of Miami). Michael, what is your topic? Can we get a link to the paper? At George Mason, Bert van Roosebeke, University of Hamburg presents Non-contractual Liability for European Union Member States: A Private Law-Enforcement Mechanism? At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia continues his series of Seybert Lectures. The second is The Growth of Knowledge. At Boston University, Jack Beerman is on for today. At the University of Hertfordshire Centre for Normativity and Narrative, Matthew Radcliffe (Durham) presents Mirror Neurons, Phenomenology and the Perception of Agency Making Sense of Delusional Experience.
Yale Law School is hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference today through March 28, 2004. At SUNY Buffalo, Elisabeth Clemens, Chicago, presents Making a Market in Education? Arizona's Charter Schools as an Experiment in Institutional Change. At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia ends his series of Seybert Lectures. The third is The Evolution of Values. At Vanderbilt today, there is a Law and Business Conference entitled Executive Compensation. At Oxford's faculty of law, there is a program on Guantanamo Bay. At the University of Pittsburgh's series on Classics, Philosophy and Ancient Science, Tony Long (University of California at Berkeley) presents Eudaimonism, Rationality, and Divinity in Greek Ethics. At Tulane's philosophy series, Jon Riley, Tulane, presents Rousseau's Social Contract. Update: At Michigan State, starting today and continuing Saturday, a conference entitled Intellectual Property, Sustainable Development, and Endangered Species: Understanding the Dynamics of the Information Ecosystem. Legal Theory Lexicon: Concepts and Conceptions
This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory. Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept. Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application. Two Uses of the Concept/Conception Distinction
Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts. References Saturday, March 20, 2004
Help on RSS Feed My RSS feed appears to be nonfunctional. Can anyone advise me of a simple replacement that does not involve a switch away from blogspot/blogger? Legal Theory Bookworm Alexander M. Bickel was born in Romania, graduated summa cum laude from Harvard Law School, and served as a law clerk to Justice Felix Frankfurter. While clerking for Frankfurter, he worked on the historic memorandum that urged reargument of Brown v. Board of Education. At Yale, he became one of the most influential constitutional theorists of the twentieth century. Tragically, Bickel, who was born in 1924, died in 1974, cutting short a brilliant career. This week the Legal Theory Bookworm recommends Alexander Bickel's classic work of constitutional theory, The Least Dangerous Branch: The Supreme Court at the Bar of Politics. This book has been so influential that much of Bickel's vocabulary has become part of ordinary constitutional parlance, including the "counter-majoritarian difficulty." If you are interested in constitutional theory, this is a book you must read. Download of the Week This week, the Download of the Week is Respect-Worthy: Frank Michelman and the Legitimate Constitution by Jack Balkin. Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists: Friday, March 19, 2004
Downing on Ebay & Commodification Over at That's News to Me, Brian Downing has a post entitled Restrictions on Alienability, Anti-Commodification, and eBay. Here is a taste:
Miller on the FCC's Regulation of "Profane Speech" One of my favorite bloggers, Ernie Miller, has up a very important post on the FCC's new regulations of profane speech. Here's the teaser:
Conference Announcement: Reconsidering the Federal Appointments Process On Monday of next week (March 22, 2004), I will be speaking at Cardozo Law School in New York. The conference is titled Reconsidering the Federal Appointments Process and the participants include Michael Gerhardt, Judith Resnik, David Yalof, Dawn Johnsen, Kyron Huigens, Helaine Greenfeld, Erwin Chemerinsky, Catherine Fisk, Edward Hartnett, Michael Rappaport, David Rudenstine, Michael Herz, Stewart E. Sterk, Walter Dellinger, William P. Marshall, John O. McGinnis, Marci Hamilton, and Paul R. Verkuil. My paper is entitled Judicial Selection: Ideology versus Character (comments welcome!). My talk will be at 10:15 a.m.. Finally, directions are available here. Please introduce yourself as a reader of Legal Theory Blog if you attend! Friday Calendar
At Washington University, St. Louis, the Sixth Annual St. Louis Philosophy of Social Science Roundtable with Keynote Speakers, David Copp and Alex Rosenberg. Lee on Jurisdiction Evan Tsen Lee (University of California, Hastings College of the Law - General) has posted The Dubious Concept of Jurisdiction (Hastings Law Journal, Vol. 54, pp. 1613-1640, August 2003) on SSRN. Here is the abstract:
Perhaps I misundertand Lee's argument. He may be saying that the criteria for determining whether a given issue is jurisdictional or not are highly conventional. Venue, for example, is similar to personal and subject matter jurisdiction in many ways, but it is not deemed "jurisdictional," with the consequence that venue can be waived (as opposed to subject matter jurisdiction) and is not subject to collateral attack (as opposed to personal jurisdiction). But the venue rules could have been jurisdictional. If Lee's claim is that there is no essence of "jurisdiction" that prevents us from reclassifying various threshold issues as jurisdictional or not, then I think I agree with a modest version of his claim. Perhaps, we would disagree insofar as I would think that the jurisdiction-making features are likely to be built into the secondary rules that authorize the tribunal to act. Lee's positive program, which would sort the jurisdictional from the nonjurisdictional on the basis of underlying policy concerns, such as the expectations of the parties, troubles me. Formal sorting rules, classifying some issues as jurisdictional, serve an important function--which is to settle such questions in advance, precisely because we don't want to unsettle the expectations of the parties as to whether a court's decision on a particular issue will be subject to collateral attack on the basis of lack of jurisdiction. Whether a given secondary-rule is jurisdiction depends mostly on the formal features of the rule itself and not on an ad hoc balancing of interests. Tussey on UCITA Deborah S. Tussey (Oklahoma City University - School of Law) has posted UCITA, Copyright, and Capture (Cardozo Arts & Entertainment Law Journal, Vol. 21, 2004) on SSRN. Here is the abstract:
Zuckerman on Studying Media Attention Ethan Zuckerman (Harvard University - Berkman Center for Internet & Society) has posted Global Attention Profiles - A Working Paper: First Steps Towards a Quantitative Approach to the Study of Media Attention on SSRN. Here is the abstract:
Gasser on Information Quality Urs Gasser (Universität St. Gallen) has posted Information Quality and the Law, or, How to Catch a Difficult Horse on SSRN. Here is the abstract:
Thursday, March 18, 2004
Event Today: Layers & Internet Policy at the New America Foundation My thanks to Frank Field of Furdlog for calling my attention to this event at the New America Foundation today:
Thursday Workshops
At Stanford's Olin series, Stephen Choi (School of Law, University of California, Berkeley) presents Do the Merits Matter Less in Securities Class Actions? At the University of Michigan's law and economics series, Randy Picker, Chicago, presents Entry, Access and Facilities-Based Competition. At UCLA's tax series, Joe Bankman, Stanford Law School, presents Who Should Bear Tax Compliance Costs? At ANU's RSSS, Susan Brison (Dartmouth College) presents Free Speech Fundamentalism. At Florida State, Eric Posner, University of Chicago Law School, presents A Theory of International Adjudication. At the University of Pennsylvania's fine law and philosophy series, Susan Haack (Prof of Law and Cooper Senior Scholar in Arts & Sciences, University of Miami) is speaking. At the London School of Economic's Centre for Philosophy of the Natural and Social Sciences, Jo Wolff (University College London) presents Are there Moral Limits to the Market? At George Mason, Ilya Somin, GMU School of Law, presents Democracy and Judicial Review. At Georgetown's Colloquium on Intellectual Property & Technology Law, Joel R. Reidenberg, Fordham University School of Law, presents The Regulation of Information Flows in a Networked Society. At Vanderbilt law, Professor Michael Heise, Cornell University Law School, presents Criminal Case Complexity: An Empirical Perspective. My thanks to Richard Nagareda for the paper title. Palfrey on ICANN & Global Internet Democracy John G. Palfrey Jr. (Harvard University - Berkman Center for Internet & Society) has posted The End of the Experiment: How ICANN's Foray into Global Internet Democracy Failed on SSRN. Here is the abstract:
Drahozal on Selection of Disputes for Litigation Christopher R. Drahozal (University of Kansas School of Law) has posted Ex Ante Selection of Disputes for Litigation on SSRN. Here is the abstract:
Lupu & Tuttle on Ecclesiastical Immunity Ira C. Lupu and Robert W. Tuttle (George Washington University Law School and George Washington University Law School) have posted Sexual Misconduct and Ecclesiastical Immunity (Brigham Young University Law Review, 2004) on SSRN. Here is the abstract:
Cheng & Lo on Insider Trading & Voluntary Disclosure Qiang Cheng and Kin Lo (University of British Columbia - Sauder School of Business and MIT Sloan School of Management) have posted Insider Trading and Voluntary Disclosures on SSRN. Here is the abstract:
Katz on the Relative Costs of Incorporating Trade Usage into Domestic and International Contracts My law school classmate Avery Wiener Katz (Columbia Law School) has posted The Relative Costs of Incorporating Trade Usage into Domestic versus International Sales Contracts (Chicago Journal of International Law, Vol. 5, No. 1, Spring 2004) on SSRN. Here is the abstract:
Wednesday, March 17, 2004
Oman on Legal Education Nate Oman has a post entitled Why Law Schools Should Not Produce Lawyers responding to my post What Do Law Schools Teach? (which was a guest turn at the new blog, De Novo). The Economics of Domain Name Policy The Domain Name System is one of the key pieces of the infrastructure of the Internet. One of the most controversial aspects of domain name policy has been the question whether and how new top level domains (TLDs) should enter the root file. The root is certainly capable of supporting many, many more TLDs than currently exist, but ICANN's process for adding new TLDs has been almost glacially slow. In An Economic Analysis of Domain Name Policy, Karl Manheim and I have argued that many more TLDs should be added to the root and that the basic mechansim for root expansion should be an auction of new slots and strings (e.g. an auction in which one could bid for the right to operate a new TLD such as .mobile, .kids, or .sex). Our paper has just hit the stands (Hastings Communications and Entertainment Law Journal, Vol. 25, p. 317, 2004) and we have also made a downloadable version of the final article available--click here. In the course of writing the article, we interacted with many of the key players in the ICANN process. It became apparent that because the process is dominated by actors with a technical background, there was very little familiarity with the economics of resource allocation. For example, we spoke with lots of folks who insisted that TLDs were not a "scarce resource," becuase there are still lots of unused strings in the second level domain space. Perhaps even more disturbing was the fact that ICANN seemed to be embarked on a recapitulation of the early history of spectrum allocation--as if the Nobel prize-wiinning economist Ronald Coase had never written his famous article, "The Federal Communications Commission." And here is the abstract:
Wednesday Workshops
Seyla Benhabib's Tanner Lectures continue today at U.C. Berkeley. At Villanova, law and philosophy star Claire Finkelstein, University of Pennsylvania School of Law, presents Legal Theory and the Rational Actor. At ANU's RSSS, John Tasioulas (University of Oxford) presents International Distributive Justice and the Duty of Assistance. In Murcia, Spain, the 14th Inter-University Workshop on Philosophy and Cognitive Science continues. Today, John McDowell delivers Dummett on meaning and truth-conditions. At ANU's faculty of law, James Stellios presents Trial by Jury and Section 80 of the Constitution. Ballkin on Michelman Jack M. Balkin (Yale University - Law School) has posted Respect-Worthy: Frank Michelman and the Legitimate Constitution (Tulsa Law Journal, Forthcoming) on SSRN. Here is the abstract:
Shiffrin on the Foundations of the Religion Clauses Steven Shiffrin (Cornell University - School of Law) has posted The Pluralistic Foundations of the Religion Clauses on SSRN. Here is the abstract:
Lubben on Sovereign Debt Restructuring Stephen Lubben (Seton Hall University - School of Law) has posted Out of the Past: Railroads & Sovereign Debt Restructuring (Georgetown Journal of International Law) on SSRN. Here is the abstract:
Harel & Stein on Class Counsel Selection & Monitoring Alon Harel and Alex Stein (Hebrew University of Jerusalem - Felt Center for Legal Studies and Hebrew University of Jerusalem) have posted Auctioning for Loyalty: Selection and Monitoring of Class Counsel (Yale Law & Policy Review, Vol. 22, No. 69, 2004) on SSRN. Here is the abstract:
Dubber on Constitutional Criminal Law Markus Dirk Dubber (University at Buffalo School of Law) has posted Toward a Constitutional Law of Crime and Punishment (Hastings Law Journal, Vol. 55, 2004) on SSRN. Here is the abstract:
Tuesday, March 16, 2004
Tuesday Workshops
Starting today and continuing through the 18th, Seyla Benhabib will deliver her Tanner Lectures at U.C. Berkeley with commentary by Bonnie Honig, Will Kymlicka, and Jeremy Waldron. The Tanner Lectures are among the most prestigious events in the humanities and social sciences! In Murcia, Spain, the 14th Inter-University Workshop on Philosophy and Cognitive Science continues. Today, John McDowell delivers Putnam on natural realism. Crawford on the Broadcast Flag Susan Crawford has moved to Cardozo. In her prior incarnation, she was one of the most interesting and thoughtful lawyers participating in the ICANN process. So I was especially interested to learn that Susan has posted The Biology of the Broadcast Flag (Hastings Communications and Entertainment Law Journal, Vol. 25, No. 2. p. 559). Here is the abstract:
Paredes on a Theory of Takeover Law Troy A. Paredes (Washington University, St. Louis - School of Law) has posted The Firm and the Nature of Control: Toward a Theory of Takeover Law on SSRN. Here is the abstract:
Ross on Mixed-Race and Same-Sex Marriage Josephine Ross (Boston College - Law School) has posted The Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage (Harvard Civil Rights - Civil Liberties Law Review, Vol. 37, pp. 255-288) on SSRN. Here is the abstract:
Kieff on Patent-Obtaining Rules F. Scott Kieff (Washington University School of Law) has posted The Case for Registering Patents and the Law and Economics of Present Patent-Obtaining Rules on SSRN. Here is the abstract:
Conference Announcement: Privacy: An Interdisciplinary Colloquium
Monday, March 15, 2004
Brian Leiter is Real & Actual Francis Beckworth's argument that Brian Leiter does not exist displays a fundamental misunderstanding of possible-worlds semantics, confusing actuality with reality and misapplying both concepts. As David Lewis convincing established (in his magnificient book On the Plurality of Worlds), all possible worlds are real. The term "actual" is an indexical (like "here" "this" or "now") which picks out this world from among all the possible worlds. Brian Leiter exists in this world, and therefore, Brian Leiter is actual. Moreover, counterparts of Brian Leiter exist in an infinite number (or continuum) of possible worlds. In other words, not only does Beckworth's invocation of possible worlds semantics fail to establish his conclusion that Brian Leiter does not exist, it actually leads to the quite different conclusion that there are an infinite number of real Brian Leiters. Beckworth's argument does lead to an interesting point. Could it be that at least some of the logically accessible possible worlds with Brian Leiter counterparts, the local Brian Leiter is a theist who believes in creation science and intelligent design? Or would a Brian Leiter-like entity that believed in creation science and intelligent design have departed from the "essence" of Brian Leiter to such an extent that the entity would not longer count as a Brian Leiter counterpart, but instead be considered as only a quasi-Brian Leiter? Weekend Update On Saturday, the Download of the Week was Curtis A. Bradley and Martin S. Flaherty's Executive Power Essentialism and Foreign Affairs and I also noted my own paper, The Aretaic Turn in Constitutional Theory. The Legal Theory Bookworm recommended Martha Nussbaum's forthcoming Hiding from Humanity: Disgust, Shame, and the Law. Sunday, the Legal Theory Calendar previewed this weeks workshops, talks, and conferences and the Legal Theory Lexicon entry was on Personhood. And don't miss the exchange between Ed Felten and me on the proposal to create a .mobile top level domain on the Internet--more on this later. Finally, my mini-essay, What Do Law Schools Teach?, is available on the fine new blog, De Novo. Kmiec on Gay Marriage Toughtful social conservative Doug Kmiec has an op/ed in the L.A. Times on gay marriage. Here is a taste:
Monday Workshops
Update: At the University of Alabama, Professor Samuel Webb of the University of Alabama at Birmingham history department presented a paper today entitled The Great Mobile Whiskey War: Law Against Culture in Alabama's Oldest City. At George Mason's Program in Philosophy, Politics, & Economics, Peter Kurrild-Klitgaard (Department of Political Science, University of Southern Denmark) presents Buridan's Ass and the Costs of Democratic Deliberation. In Murcia, Spain, the 14th Inter-University Workshop on Philosophy and Cognitive Science will include John McDowell, University of Pittsburgh. Today, McDowell delivers Transcendental arguments and the disjunctive conception of experience. At UCLA, Jay Bhattacharya, Stanford Medical School, presents Property Rights and The Possibility of a Futures Market in Organ Collection. At Harvard's philosophy colloquium, Ruth Chang (Rutgers) is speaking. Graber on Tocqueville's Thesis Mark Graber (University of Maryland - School of Law) has posted Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited on SSRN. Here is the abstract:
White on the Future of Mass Torts Michelle J. White (University of California, San Diego) has posted Asbestos and the Future of Mass Torts on SSRN. Here is the abstract:
Krawiec on Derivatives & Hedging Kimberly D. Krawiec (University of North Carolina School of Law) has posted Derivatives, Corporate Hedging and Shareholder Wealth: Modigliani-Miller Forty Years Later (University of Illinois Law Review, Vol. 1998, No. 1) on SSRN. Here is the abstract:
Conference Announcement: Insufficient Reason: Non-Rational Elements in Judgment and Action
Lemmens on Genetics and Insurance Discrimination Trudo Lemmens (University of Toronto - Faculty of Law) has posted Genetics and Insurance Discrimination: Comparative Legislative, Regulatory and Policy Developments and Canadian Policy Options (Health Law Journal, pp. 41-86, 2003) on SSRN. Here is the abstract:
Welcome to the Blogosphere . . . to De Novo a group effort of experienced bloggers Chris Geidner, Jeremy Blachman, and Nick Morgan. Their inagural set of posts includes guest efforts by Howard Bashman, Douglas Berman, Eugene Volokh, and yours truly! Check it out! Sunday, March 14, 2004
Legal Theory Calendar
Update: At the University of Alabama, Professor Samuel Webb of the University of Alabama at Birmingham history department presented a paper today entitled The Great Mobile Whiskey War: Law Against Culture in Alabama's Oldest City. At George Mason's Program in Philosophy, Politics, & Economics, Peter Kurrild-Klitgaard (Department of Political Science, University of Southern Denmark) presents Buridan's Ass and the Costs of Democratic Deliberation. In Murcia, Spain, the 14th Inter-University Workshop on Philosophy and Cognitive Science will include John McDowell, University of Pittsburgh. Today, McDowell delivers Transcendental arguments and the disjunctive conception of experience. At UCLA, Jay Bhattacharya, Stanford Medical School, presents Property Rights and The Possibility of a Futures Market in Organ Collection. At Harvard's philosophy colloquium, Ruth Chang (Rutgers) is speaking.
Starting today and continuing through the 18th, Seyla Benhabib will deliver her Tanner Lectures at U.C. Berkeley with commentary by Bonnie Honig, Will Kymlicka, and Jeremy Waldron. The Tanner Lectures are among the most prestigious events in the humanities and social sciences! In Murcia, Spain, the 14th Inter-University Workshop on Philosophy and Cognitive Science continues. Today, John McDowell delivers Putnam on natural realism.
Seyla Benhabib's Tanner Lectures continue today at U.C. Berkeley. At Villanova, law and philosophy star Claire Finkelstein, University of Pennsylvania School of Law, presents Legal Theory and the Rational Actor. At ANU's RSSS, John Tasioulas (University of Oxford) presents International Distributive Justice and the Duty of Assistance. In Murcia, Spain, the 14th Inter-University Workshop on Philosophy and Cognitive Science continues. Today, John McDowell delivers Dummett on meaning and truth-conditions. At ANU's faculty of law, James Stellios presents Trial by Jury and Section 80 of the Constitution.
At Stanford's Olin series, Stephen Choi (School of Law, University of California, Berkeley) presents Do the Merits Matter Less in Securities Class Actions? At the University of Michigan's law and economics series, Randy Picker, Chicago, presents Entry, Access and Facilities-Based Competition. At UCLA's tax series, Joe Bankman, Stanford Law School, presents Who Should Bear Tax Compliance Costs? At ANU's RSSS, Susan Brison (Dartmouth College) presents Free Speech Fundamentalism. At Florida State, Eric Posner, University of Chicago Law School, presents A Theory of International Adjudication. At the University of Pennsylvania's fine law and philosophy series, Susan Haack (Prof of Law and Cooper Senior Scholar in Arts & Sciences, University of Miami) is speaking. At the London School of Economic's Centre for Philosophy of the Natural and Social Sciences, Jo Wolff (University College London) presents Are there Moral Limits to the Market? At George Mason, Ilya Somin, GMU School of Law, presents Democracy and Judicial Review. At Georgetown's Colloquium on Intellectual Property & Technology Law, Joel R. Reidenberg, Fordham University School of Law, presents The Regulation of Information Flows in a Networked Society. At Vanderbilt law, Professor Michael Heise, Cornell University Law School, presents Criminal Case Complexity: An Empirical Perspective. My thanks to Richard Nagareda for the paper title.
At Vanderbilt today and tomorrow, a conference entitled Lawyers as Activists: Achieving Social Change through Civil Litigation. Speakers include Stephen Yeazell, Rand Rosenblatt, Burt Neuborne, Louis Pollack, Elizabeth Cabraser, Howard Erichson, William Rubenstein, Anthony Sebok, Richard Nagareda, Ralph Steinhardt, Beth Van Schaack, Allison Danner, John Dayton, and Michael Heise. At Washington University, St. Louis, the Sixth Annual St. Louis Philosophy of Social Science Roundtable with Keynote Speakers, David Copp and Alex Rosenberg. Legal Theory Lexicon: Personhood
Persons and Humans The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":
Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe. Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans. The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons." Legal, Moral, and Natural Persons So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons. Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons. A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts. Legal Personhood The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued. Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone recently recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities. Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will." Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists. Moral Personhood "Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities: Conclusion "Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography. Bibliography Saturday, March 13, 2004
Oman on the Use of Religious Arguments by Nonbelievers, with Updates Nate Oman has a thoughtful post about the use of religious arguments by those who do not actually believe them. Here is an excerpt:
There is a way out of the dilemma. We can offer our fellow citizens what the philosopher John Rawls called "public reasons," i.e. reasons that both believers and nonbelievers can endorse--albeit they may well have different deep foundations for these public reasons. Read Nate Oman's very interesting post! Update: Sasha Volokh has a good post responding to Nate. Here is a taste:
Felten on .mobile & the Economics of Domain Name Policy Ed Felten has a post up on the proposal to create a .mobile TLD (top level domain). Here is a taste:
CCH Canadian Ltd. v. Law Society of Upper Canada Courtesy of Lessig, this link to the Supreme Court of Canada's decision--which adopts a balancing approach to the interpretation of Canada's copyright law. Dripps to USD Brian Leiter reports that Don Dripps has moved from the University of Minnesota to the University of San Diego. Brian also reports on other recent moves to USD. SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists: Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Martha Nussbaum's forthcoming Hiding from Humanity: Disgust, Shame, and the Law, which can be preordered from Amazon here. Here is a description:
Download of the Week The "Vesting Clause of Article II of the Constitution vests the "executive Power" in the President of the United States. A few years ago, my colleagues Sai Prakash & Mike Ramsey wrote a very influential article, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001), which argued for an expansive and historically rooted interpretation of the vesting clause. They wrote, for exampe:
Friday, March 12, 2004
Friday Workshops
At UCLA law, Rebecca Eisenberg (Michigan) presents Reexamining Drug Regulation from the Perspective of Innovation Policy. At Oxford's Faculty of Law, Christos Rozakis presents The Bankovic case (in contrast with the Loizidou case): The jurisdictional limits of the European Court of Human Rights. Wells on Making Churches Pay Catharine P. Wells (Boston College - Law School) has posted Churches, Charities, and Corrective Justice: Making Churches Pay for the Sins of Their Clergy (Boston College Law Review, Vol. 44, No. 4/5, pp. 1201-1227, July/September 2003) on SSRN. Here is the abstract:
Gilson on the Poison Pill in Japan Ronald J. Gilson (Stanford Law School) has posted The Poison Pill In Japan: The Missing Infrastructure on SSRN. Here is the abstract:
Bernstein & Jackson on Daubert in the States David E. Bernstein and Jeffrey D. Jackson (George Mason University School of Law and Kansas Judicial Center) have posted The Daubert Trilogy in the States (Jurimetrics, Vol. 44, 2004) on SSRN. Here is the abstract:
Gey on the Attack on Constitutional Secularism Steven G. Gey (Florida State University - College of Law) has posted Unity of the Graveyard and the Attack on Constitutional Secularism (BYU Law Review, 2004) on SSRN. Here is the abstract:
Thursday, March 11, 2004
Thursday Workshops
At U.C. Berkeley's GALA series, William Talbott (University of Washington, Philosophy) presents What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy? Here is a taste:
At Oxford's Public International Law Discussion Group, Ryszard Piotrowitz presents The Emerging International Regime on People Trafficking . At UCLA's legal history series, David Konig, Washington University in St. Louis, presents The Color of Money and Color of Law: Credit, Law, and the Forming of a Property Regime in Seventeenth-Century Virginia. At Princeton's public law colloquium, Jeffrey Staton (Florida State University) presents When Judges Go Public: Building the Judiciary through Media Relations. At UCLA's tax policy series, Al Harberger, UCLA Economics Department, presents Top Ten Lessons from Public Finance At University College, London, Gisela Striker (Harvard) presents Mental Health and Moral Health: Moral Progress in Seneca's Letters. Issacharoff on the Center in American Politics Samuel Issacharoff (Columbia Law School) has posted Collateral Damage: The Endangered Center in American Politics (William and Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
Noveck on Electronic Rulemaking Beth Simone Noveck (NYLS - Department of Democracy Design Workshop) has posted The Electronic Revolution in Rulemaking (Emory Law Journal, 2004) on SSRN. Here is the abstract:
Black on Russian Robbery Bernard S. Black (Stanford Law School) has posted Shareholder Robbery, Russian Style (Institutional Shareholder Services ISSue Alert, p. 3, October 1998) on SSRN. Here is the abstract:
Turnbull on Network Governance Shann Turnbull (International Institute for Self-governance and Macquarie University, Sydney) has posted Network Governance (Corporate Governance International, Vol. 6, Iss. 3, pp. 4-14, September 2003) on SSRN. Here is the abstract:
Van Niel and Rapoport on the Most Notorious Company Ever! Jeffrey D. Van Niel and Nancy B. Rapoport (Independent and University of Houston Law Center) have posted Dr. Jekyll & Mr. Skilling: How Enron's Public Image Morphed From the Most Innovative Company in the Fortune 500 to the Most Notorious Company Ever (ENRON: CORPORATE FIASCOS AND THEIR IMPLICATIONS, Foundation Press 2004) on SSRN. Here is the abstract:
Chibundu on the Other in International Law Maxwell O. Chibundu (University of Maryland - School of Law) has posted The Other in International Law: 'Community' and International Legal Order on SSRN. Here is the abstract:
Wednesday, March 10, 2004
Wednesday Workshops
At Oxford's Jurisprudence Discussion Group, Nick Barber presents The Limited Modesty of Subsidiarity. At NYU's legal history series, William Eskridge, Professor of Law, Yale (Visiting NYU), presents Homo Equality: The Decline and Fall of Sodomy Laws in America. Today through March 12, at Galway (Ireland), the Symposium on Genetics and Disability. Noah on Policing Biomedical Research Lars Noah (University of Florida - Fredric G. Levin College of Law) has posted Deputizing Institutional Review Boards to Police (Audit?) Biomedical Research (Journal of Legal Medicine, Vol. 25, 2004) on SSRN. Here is the abstract:
Gemmell and Morrissey on Tax Incidence on the Poor in LDCs Norman Gemmell and Oliver Morrissey (University of Nottingham and University of Nottingham - Development Economics) have posted Tax Structure and the Incidence on the Poor in Developing Countries on SSRN. Here is the abstract:
Somin on Posner Ilya Somin (George Mason University - School of Law) has posted Richard Posner's Democratic Pragmatism on SSRN. Here is the abstract:
Turnbull on Trusting Anglo Corporations Shann Turnbull (International Institute for Self-governance and Macquarie University, Sydney) has posted Why Anglo Corporations Should Not Be Trusted: And How They Could Be Trusted (FSR Forum, Vol. 6, No. 2, pp. 6, 7, 9-12, 14, 15, February 2004) on SSRN. Here is the abstract:
Conference Announcement: Preference Information and Well-Being
Tuesday, March 09, 2004
Solum on the Aretaic Turn in Constitutional Theory My most recent essay, The Aretaic Turn in Constitutional Theory (or right click here and select "Save Target As" for direct download), just went up on SSRN. Here is the abstract:
Kennedy Challenges the Recess Appointment of Pryor Senator Kennedy has argued that the recess appointment of , according to an AP story by Jesse Holland. Here is a brief excerpt:
Indeed, this issue raises one of the most interesting questions in constitutional theory--the relationship between text and original meaning on one hand and precedent and historical practice on the other. Can a constitutional question become settled by longstanding historical practice--even when that practice seems to run contrary to the text and original meaning of the constitution? The values that we associate with the rule of law--predictability, certainty, and accountability--seem to cut in both directions. Update: Senator Kennedy's letter to the 11th Circuit, urging the Circuit to consider sua sponte the question whether Pryoer may sit, is available here. Tuesday Workshops
At the University of Texas, Jane Stapleton (UTLaw/ANU) presents Causation and Scope: Putting Flesh on the Skeleton. At Oxford's Ockham Society, Leonard Kahn presents Global Consequentialism. At Oxford's The Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents Making the World a Better Place. At Northwestern, Nicole Garnett (Notre Dame & Visiting Scholar Northwestern) presents Ordering (And Order In) The City. At Oxford's Environmental Law Discussion Group, Ashfaq Khalfan presents Human Rights Approaches to Water Governance: Moving Beyond the Rhetoric. At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Susan Hurley (Warwick) presents Luck and Equality. Smerdel on the European Process of Constitutional Choice Branko Smerdel (University of Zagreb - School of Law) has posted The Convention on the Future of Europe and the Process of Constitutional Choice on SSRN. Here is the abstract:
Ansolabehere, Snyder, and Ueda on the Effects of Soft Money on Profits Stephen Ansolabehere , James M. Snyder Jr. and Michiko Ueda (Massachusetts Institute of Technology (MIT) - Department of Political Science , Massachusetts Institute of Technology (MIT) - Department of Political Science & Department of Economics and Massachusetts Institute of Technology (MIT) - Department of Political Science) have posted Did Firms Profit from Soft Money? on SSRN. Here is the abstract:
Carbone on Fundamentalist Secular Humanist June Carbone (Santa Clara School of Law) has posted Toward a More Communitarian Future? Fukuyama as the Fundamentalist Secular Humanist (Michigan Law Review, Vol. 101, 2003) on SSRN. Here is the abstract:
Lee on Concepts of Diversity Thomas H. Lee (Fordham University - School of Law) has posted University Dons and Warrior Chieftains: Two Concepts of Diversity on SSRN. Here is the abstract:
Bengtson on National Parliaments & European Decision Making Christina Bengtson (University of Glasgow) has posted National Parliaments in European Decision-making: A Real Prospect or Wishful Thinking? on SSRN> Here is the abstract:
Jargon Or Why Neither "Judicial Activism" Nor "Liberal" versus "Conservative" Provide Meaningful Focus for Constitutional Debate
Activism So what is "judicial activism"? This seems to be one of those labels that is always applied to those with whom one disagrees. If you were hostile to the decisions of the Warren Court, you might accuse the court of "judicial activism." And if you were hostile to the decisions of the Rehnquist Court, you might call a decision of the Rehnquist Court that reversed a decision of the Warren Court an "activist" decision. And almost no one proudly says, "That was an activist decision, and I support it!" The phrase "judicial activism" does not lend itself to clear criteria for application. One definition of "activism" is:
Balkin does offer a definition of sort. Recall that Balkin wrote: "[L]iberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution." So perhaps, by activism he means reading one's own values into the Constitution. But if this is what Balkin means, then it is very odd for Balkin to argue that conservatives have been more activist than liberals. Why odd? Here are the concluding paragraphs of Balkin's original rejoinder to Goldberg:
The fact is, we are all living constitutionalists now; but only some of us are honest about it. Balkin cannot have it both ways. He can either say that all judges read their own values into the Constitution all the time or he can admit that some of the time, judges do follow the rules laid down, but then try to show that conservatives do it more than liberals. Liberal versus Conservative as a Constitutional Typology "Judical activism" is notoriously vague, and so are "liberal" and "conservative"--the two other ideas that frame Balkin's argument. Balkin seems to believe that "liberal" and "conservative" are not only meaningful categories for classifying the political ideologies of judges, but also that these labels can be applied in some consistent way across historical eras--allowing us to identify meaningfully classify decisions from the reconstruction era, the early twentieth century, and the early twenty-first century using this simple binary scheme. And now comes the really strange part of Balkin's argument. The binary classifications--liberal and conservative--apply transhistorically even if the substantive positions change:
But there is yet a deeper flaw in Balkin's reasoning. Political ideologies cannot accurately be captured by a simple binary left/right liberal/conservative opposition. In the context of judicial politics, the ideological space is multidimensional, including: (1) nationalists--who favor greater power for the federal government versus federalists--who favor the devolution of power to the states; (2) statists--who favor greater power for government at either level versus antistatists--who favor the liberties of individuals, voluntary associations, and firms over government; (3) interventionists--who favor government regulation of the economy versus laissez faire--the philosophy that favors minimal government interference with free markets; (4) social conservatives--who favor traditional values and forms of life versus social liberals--who advocate both the legal and social freedom to engage in untraditional forms of live and to reject traditional values. I've just gotten started. The list could go on and on. Getting to the Point The point is that both Jonah Goldberg and Jack Balkin are engaged in a pseudo-debate. The proposition that liberals are more guilty of the sin of judicial activism than conservatives or vice versa is so vague as to be virtually meaningless. This is the kind of debate that invites simplification and rhetorical flourish but resists resolution through reasoned argument. Nonetheless, I think that Balkin is on to something important. I believe that Balkin's first instinct was right. We can distinguish between judges that read their own values into the constitution and those who follow the rules laid down. We can distinguish between decisions that depart from precedent, text, and original meaning--and those that do not. Our ability to make these judgments is critically important, because it opens the door to constitutional formalism--the depoliticization of the process of constitutional adjudication. Update: Randy Barnett responds here. And check out C.E. Petit on Scrivener's Error. Monday, March 08, 2004
Law Review Submission Dates: Updated as of March 9, 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:
Monday Workshops
Today through March 10, Doscientos Años Después. Retornos y relecturas de Kant at the Univesidad de Navarra. At UCLA law, Pat Sekequaptewa (UCLA) presents Federal Recognition and Nation Building in Native Hawaii. At Princeton's Program in Law and Public Affairs, Katherine Van Wezel Stone (Cornell Law School) is speaking. At Oxford's Centre for Socio-Legal Studies, Reza Banakar presents Contrasting Social Science and Legal Methods: Is Methodology the Achilles` Heel of Socio-Legal Research? At Loyola Marymount, Kareem Crayton, Vanderbilt Fellow, presents The Strange Past and Uncertain Future of the Voting Rights Act. Bradley & Flaherty on Executive Power Curtis A. Bradley and Martin S. Flaherty (University of Virginia School of Law and Fordham University - School of Law) have posted Executive Power Essentialism and Foreign Affairs (Michigan Law Review, Vol. 102, 2004) on SSRN. Here is the abstract:
Raustiala on International Agreements Kal Raustiala (Princeton University - Program in Law and Public Affairs) has posted Form and Substance in International Agreements on SSRN. Here is the abstract:
Stern on Wrongful Misrepresentation of Character Nat Stern (Florida State University College of Law) has posted Creating a New Tort for Wrongful Mispresentation of Character on SSRN. Here is the abstract:
Gervais on New International Copyright Norms Daniel J. Gervais (University of Ottawa - Common Law) has posted Towards A New Core International Copyright Norm: The Reverse Three-Step Test on SSRN. Here is the abstract:
Sunday, March 07, 2004
Legal Theory Calendar
Today through March 10, Doscientos Años Después. Retornos y relecturas de Kant at the Univesidad de Navarra. At UCLA law, Pat Sekequaptewa (UCLA) presents Federal Recognition and Nation Building in Native Hawaii. At Princeton's Program in Law and Public Affairs, Katherine Van Wezel Stone (Cornell Law School) is speaking. At Oxford's Centre for Socio-Legal Studies, Reza Banakar presents Contrasting Social Science and Legal Methods: Is Methodology the Achilles` Heel of Socio-Legal Research? At Loyola Marymount, Kareem Crayton, Vanderbilt Fellow, presents The Strange Past and Uncertain Future of the Voting Rights Act.
At the University of Texas, Jane Stapleton (UTLaw/ANU) presents Causation and Scope: Putting Flesh on the Skeleton. At Oxford's Ockham Society, Leonard Kahn presents Global Consequentialism. At Oxford's The Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents Making the World a Better Place. At Northwestern, Nicole Garnett (Notre Dame & Visiting Scholar Northwestern) presents Ordering (And Order In) The City. At Oxford's Environmental Law Discussion Group, Ashfaq Khalfan presents Human Rights Approaches to Water Governance: Moving Beyond the Rhetoric. At the London School of Economics's Centre for Philosophy of the Natural and Social Sciences, Susan Hurley (Warwick) presents Luck and Equality.
At Oxford's Jurisprudence Discussion Group, Nick Barber presents The Limited Modesty of Subsidiarity. At NYU's legal history series, William Eskridge, Professor of Law, Yale (Visiting NYU), presents Homo Equality: The Decline and Fall of Sodomy Laws in America. At the University of London's Colloquium in Legal and Social Philosophy, Professor Cass Sunstein (University of Chicago) presents Valuing Rights. Today through March 12, at Galway (Ireland), the Symposium on Genetics and Disability.
At U.C. Berkeley's GALA series, William Talbott (University of Washington, Philosophy) presents What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy? At Oxford's Faculty of Law, Douglas Baird presents The New Face of Chapter 11. At Oxford's Public International Law Discussion Group, Ryszard Piotrowitz presents The Emerging International Regime on People Trafficking . At UCLA's legal history series, David Konig, Washington University in St. Louis, presents The Color of Money and Color of Law: Credit, Law, and the Forming of a Property Regime in Seventeenth-Century Virginia. At Princeton's public law colloquium, Jeffrey Staton (Florida State University) presents When Judges Go Public: Building the Judiciary through Media Relations. At UCLA's tax policy series, Al Harberger, UCLA Economics Department, presents Top Ten Lessons from Public Finance At University College, London, Gisela Striker (Harvard) presents Mental Health and Moral Health: Moral Progress in Seneca's Letters.
At UCLA law, Rebecca Eisenberg (Michigan) presents Reexamining Drug Regulation from the Perspective of Innovation Policy. At Oxford's Faculty of Law, Christos Rozakis presents The Bankovic case (in contrast with the Loizidou case): The jurisdictional limits of the European Court of Human Rights.
Legal Theory Lexicon: Rules, Standards, and Principles
We can slice and dice legal norms in various ways. In this post, we will investigate the idea that legal norms can be sorted into three general classes: rules, standards, and principles. Let's stipulate to the following definitions to get the discussion off the ground: Rules Although the phrase "legal rule" can be used in a broad sense, to refer to all legal norms, whether they be case in the form of a bright-line rule, a standard that in the form of a balancing test, or even an abstract principle, there is also a narrower sense of "rule" that distinguishes rules from standards and principles. Rules themselves vary--let's use hard and soft to refer to the poles of a continuum. A rule is harder if both the conditions for its application and the consequences that follow are defined by bright-line distinctions that admit of easy application. The rule that disqualifies persons who are not 35 years of age is quite hard or rigid. Rules become softer as they criterion for the application and/or the consequences to which they lead become fuzzier. If the constitution had limited the presidency to "adults," then there could have been cases in which the question whether a particular candidate was unclear. Twelve year olds are clearly not adults but twenty-five year olds clearly are. In between, the necessity of drawing a somewhat arbitrary line makes the "adult" rule relatively softer than the "35-year old" rule. Standards Standards are less constraining than even "soft" rules. Whereas a rule defines a triggering condition and a consequence, a standard may define a set of relevant considerations and options. One familiar example of a standard is provided by the fairness component of the International Shoe test for personal jurisdiction. That test requires a court to find that a state's assertion of personal jurisdiction violates the Due Process Clause on the basis of a give factor balancing test, which refers to the defendant's interest, the plaintiff's interest, the interest of the forum, judicial efficiency and economy, and substantive policy concerns. Like rules, standards themselves vary in their capacity to guide and constrain the decision-making process. Some standards give the decision maker substantial guidance, by specifying relatively specific and concrete factors the decision maker should consider and the relative weight or importance of those factors. Other standards are much more open ended, requiring consideration of factors that are general and abstract. Standards that refer to "all the circumstances," "the interests of justice," or "equitable considerations" are particularly soft. Standards that require the evaluation of "cost to the defendant" or "serious invasions of privacy" are relatively harder, providing greater constraint and guidance. By way of illustration, consider eligibility for the presidency once again. A rule based approach might limit eligibility to persons of a certain age or to "adults." A standard might specify that the only persons who are "sufficiently mature" may occupy the office of President. This standard is relatively open-ended, and it might disqualify some sixty-year olds from the presidency but allow some 20 year olds to serve. Principles Principles are quite different from both rules and standards--at least on the basis of the definitions that we are using. Both rules and standards provide a framework that is, in theory, sufficient for resolving a particular issue in a legal dispute. But as we are using the term, a "principle" only provides guidance for the interpretation or application of a rule or standard. Principles by themselves do not resolve legal issues. This sense of principle is illustrated by Ronald Dworkin's example of the principle that no one should be allowed to profit from their own wrong, drawn from the case of Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case, the statute of wills would have allowed a murderer to inherit from his victim, but the New York Court of Appeals concluded that the statute should be given an equitable interpretation in light of the common law principle against wrong doers profiting from their wrongs. This principle is not a rule: the law does permit wrong doers to profit from their wrongs in a variety of circumstances. Rather, this general and abstract principle provided guidance in the interpretation and construction of a rule--in Riggs, the rule provided by the statute of wills. The Pros and Cons of Rules, Standards, and Principles What are the pros and cons of rules, standards, and principles? When you have identified a candidate legal norm, when should you argue that the norm should be formulated as a rule, a standard, or a principle? In his famous 1985 article, Pierre Schlag provided this example:
References
Herbert Hart & Albert Sacks, The Legal Process (unpublished manuscript tent. ed. 1958). Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685 (1976). Saturday, March 06, 2004
Lemley from U.C. Berkeley to Stanford Mark Lemley--a leading figure in intellectual property law--has accepted an offer from Stanford. See Leiter for more on recent moves & offers. P2P Marchs On: Bit Torrent I just caught up with this nice Slate piece on Bit Torrent. Here is the lead:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists: Legal Theory Bookworm This week the Legal Theory Bookworm recommends Sandy Levinson's wonderful book Constitutional Faith. Here are excerpts from some of the reviews:
Dowload of the Week This week, the Download of the Week is Unjust War by Jeff McMahan of Rutgers. Here is a taste of this interesting and timely paper:
Friday, March 05, 2004
Call for Papers: Nietzsche & Ethics
International Justice Worskhop in London Today
Friday Workshops
At Michigan's law and economics series, Vicki Been presents Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?. At UCLA's tax policy series, David Schizer, Columbia Law School, presents Inconsistencies, Imbalances, and the Taxation of Derivative Securities: An Agenda for Reform. At MIT's philosophy series, Elisabeth Lloyd, Indiana University, presents How Should We Understand Bias in Scientific Explanations?. At Oxford's Faculty of Law, Michael Rowe presents Vertical Agreements – Freezer Exclusivity. At Oxford's Human Rights Discussion Group, Liora Lazarus presents Prisoners` Rights in England and Germany. At Oxford's Institute of European and Comparative Law, Chris Hilson presents What’s in a Right? The Relationship Between Community, Fundamental and Citizenship Rights in EU Law. At UCLA, Owen Jones (ASU) presents Law and Behavioral Biology. At Tulane's Center for Ethics and Public Affairs, Geoffrey Sayre-McCord, University of North Carolina-Chapel Hill, presents Normative Concepts. At Princeton's philosophy department, Michael Strevens, Stanford University, presents Why Explanations Lie: An Account of Idealization in Explanation. At the Society for Applied for Philosophy in London, there will be a program on International Justice: Theory and Practice with Miltos Ladikos (Lancaster) & Katrin Filkschuh (LSE) as speakers and Doris Schroeder (Central Lancashire) as chair. Bebchuk on Antitakeover Arrangements Lucian Arye Bebchuk (Harvard Law School) has posted Why Firms Adopt Antitakeover Arrangements (University of Pennsylvania Law Review, Vol. 152, pp. 713-753, 2003) on SSRN. Here is the abstract:
Greely on Disability and the Meaning of Sport Henry T. Greely (Stanford Law School) has posted Disabilities, Enhancements, and the Meanings of Sports (Stanford Law & Policy Review, Vol. 15, No. 2, Spring 2004) on SSRN. Here is the abstract:
Vischer on the Value of Associations Robert K. Vischer (St. John's University School of Law) has posted The Good, the Bad and the Ugly: Rethinking the Value of Associations (Notre Dame Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:
Schill, Voicu, and Miller on the Cooperative Puzzle Michael H. Schill , Ioan Voicu and Jonathan Miller (New York University School of Law , New York University - School of Law and Miller Samuel Inc.) have posted The Condominium v. Cooperative Puzzle: An Empirical Analysis of Housing in New York City on SSRN. Here is the abstract:
Thursday, March 04, 2004
Welcome to the Blogosphere . . . to Nate Oman's new blog, Tutissima Cassis. Nate's old blog A Good Oman was terrific. One of the early posts begins:
Weatherson on Friedman Brian Weatherson has a marvelous post on Crooked Timber entitled Idealisations in Economics. Here is a taste:
Thursday Workshops
At Yale's Legal Theory Workshop, Alex Aleinikoff, Georgetown (Law) presents The Constitution And the Challenge of Transnational Law. Here is a preview:
The increasing appeal to transnational norms has been greeted with skepticism by other scholars (I call them “revisionists” here). Challenging long-held assumptions of internationalists, they argue, for example, for stricter limits on Congress’ treaty-making power and against the common assumption that customary international law constitutes federal common law. In this manuscript I chart a middle course. I recognize the inevitability and justice of an increasing role for transnational norms, but I take seriously claims that the application of transnational norms raises significant theoretical issues that internationalists have not fully addressed. And I worry that the Supreme Court may well be on the verge of agreeing with the revisionists on a number of crucial questions. I propose new understandings of conventional and customary law that, I argue, provide better theoretical support for a modified internationalist position. Furthermore, I suggest doctrinal and institutional innovations that attempt to mediate the challenge that transnational law poses to deep structural (and cultural) norms of the U.S. legal system (primarily political commitment to the principle of popular sovereignty).
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. Here is a tiny taste:
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. Andrea L. Hibbard and John T. Parry (University of Pittsburgh - Department of English and University of Pittsburgh School of Law) have posted The Occasional Triumph of the Moral Sentiments over Legal Technicalities: Law, Seduction, and the Sentimental Heroine on SSRN. Here is the abstract:
Seamon on Noonan Richard Henry Seamon (University of South Carolina - School of Law) has posted Slaying the Dying Dragon of State Sovereignty, A Review of John T. Noonan's Narrowing the Nation's Power: The Supreme Court Sides With the States on SSRN. Here is the abstract:
Rapoport on Enron Nancy B. Rapoport (University of Houston Law Center) has posted Enron, Titanic, and The Perfect Storm (Fordham Law Review, Vol. 71, p. 1373, 2003) on SSRN. Here is the abstract:
Schwarcz on Sovereign Debt Restructurng Steven L. Schwarcz (Duke University School of Law) has posted 'Idiot's Guide' to Sovereign Debt Restructuring on SSRN. Here is the abstract:
Beny on Insider Trading Laura N. Beny (University of Michigan at Ann Arbor Law School) has posted A Comparative Empirical Investigation of Agency and Market Theories of Insider Trading on SSRN. Here's the abstract:
Wednesday, March 03, 2004
Wednesday Workshops
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. Greenfield & Kostant on Fairness under Agency & Profit Constraints Kent Greenfield and Peter Kostant (Boston College Law School and New York Law School) have posted An Experimental Test of Fairness Under Agency and Profit Constraints (With Notes on Implications for Corporate Governance) (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
Oyer & Schaefer on the Unintended Consequences of the 1991 Civil Rights Act Paul Oyer and Scott Schaefer (Stanford University - Graduate School of Business and Northwestern University - Kellogg School of Management) have posted The Unintended Consequences of the '91 Civil Rights Act (Regulation, Vol. 26, No. 2, pp.42-47, Summer 2003) on SSRN. Here is the abstract:
Blair on the Nineteenth Century Function of Corporate Law Margaret M. Blair (Georgetown University Law Center) has posted Locking in Capital: What Corporate Law Achieved for Business Organizers in the Nineteenth Century (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:
Ippolito on the Health Effects of Alcohol Richard A. Ippolito (George Mason University School of Law) has posted The Health Effects of Alcohol: Do Controls for Demographics and Other Risky Habits Affect the Conclusions? on SSRN. Here is the abstract:
Lande on Collaborative Law John Lande (University of Missouri at Columbia - School of Law) has posted Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering (Ohio State Law Journal, Vol. 64, p. 1315, 2003) on SSRN. Here is the abstract:
Tuesday, March 02, 2004
Tuesday Workshops
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. Monday, March 01, 2004
Weekend Wrap Up On Saturday, the Download of the Week was Ex Ante versus Ex Post Justifications for Intellectual Property by Mark Lemley, and I also recommended this paper. The Legal Theory Bookworm's selection was Consent to Sexual Relations by Alan Wertheimer. On Sunday, the Legal Theory Lexicon entry was on Social Welfare Functions and the Legal Theory Calendar previewed workshops, talks, and conferences for this week. Monday Workshops
At George Mason's Philosophy, Politics, & Economics series, Christopher Mantzavinos, Research Group in Collective Goods, Max Planck Institute, presents Naturalistic Hermeneutics. Here is a taste from near the end of this fascinating draft:
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. Mitchell on Loving Free Markets Lawrence E. Mitchell (The George Washington University Law School) has posted The Age of Aquarius or, How I (Almost) Learned to Stop Worrying and Love Free Markets (University of Minnesota Law Review, 2004) on SSRN. Here is the abstract:
Reisberg on Derivative Actions in England Arad Reisberg (University of Oxford - Pembroke College) has posted Theoretical Inquiries on Derivative Actions in England: The Choice of Rationales - Deterrence Versus Compensation on SSRN. Here is the abstract:
Franke on Post Colonial Homophobia Katherine M. Franke (Columbia Law School) has posted Sexual Tensions of Post-Empire on SSRN. Here is the abstract:
Epstein & Rubinfield on Product Nests Roy J. Epstein and Daniel L. Rubinfeld (Independent and University of California at Berkeley School of Law) have uploaded Merger Simulation with Brand-Level Margin: Extending PCAIDS with Nests to SSRN. Here is the abstract:
Edelman on At-Large Representation Paul H. Edelman (Vanderbilt University School of Law) has posted In Defense of At-Large Representation: A Positive Approach on SSRN. Here is the abstract:
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