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This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.

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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:
    Mark-and-trace DRM schemes try to put a unique, indelible mark on each legitimate copy of a work, so that any infringing copies found later can be traced, with the aid of the mark, back to the legitimate copy from which they originated. Such schemes have fallen out of favor recently, because of two problems. First, the mark must really be indelible. If an adversary can remove the mark, the resulting "scrubbed" copy can be redistributed with impunity. Nobody has figured out how to make marks that can't be removed from music or video. Past attempts to create indelible marks have failed miserably. A notable example is the SDMI watermarks that my colleagues and I showed were easily removed. Second, blaming the buyer of an original for all copies (and copies of copies, etc.) made from it just isn't practical. To see why, suppose Alice has a big collection of music on her laptop. Then her laptop is stolen, or somebody breaks into it electronically, and all of her songs end up on millions of computers all over the Net. What then? Do you take all of Alice's earthly possessions to compensate for the millions of infringements that occurred? (And if that's the policy, what sane person will buy music in the first place?) Or do you let Alice off the hook, and allow burglars to defeat your entire DRM scheme? Nobody has a plausible answer to this question; and the Fraunhofer people don't offer one.


 
Domain Name Expansion CNN reported that ICANN's latest round of domain name expansion is underway:
    Ten organizations submitted applications to sponsor new Internet domains, including ".mobi" for mobile services and ".xxx" for adult content, the group that oversees key aspects of the global network said Friday. Each organization paid $45,000 to apply for suffixes that are to be set aside for specific industries and interest groups. The deadline for applications was Tuesday.
We'll see! Don't hold your breath waiting for ICANN to grant new domains for commercial use--although it is possible that Paul Twomhy will provide leadership on this issue. The details are on the ICANN website. Karl Manheim and I have a paper on the expansion of the root, An Economic Analysis of Domain Name Policy, which advocates rapid expansion of the root (i.e. the creation of new Top Level Domains) through an auction mechanism. ICANN has opened a public comment period; details are available here.


 
WTO Action Henry Farrell over at Crooked Timber recently reported:
    The WTO has just handed down a preliminary ruling that Internet policy wonks like myself have been waiting for with considerable impatience. Last June, the Caribbean island state of Antigua and Barbuda took a WTO case against the US for restrictions of trade. The issue: various US laws that have been applied to stamp out Internet gambling, with unpleasant consequences for the Antiguan economy. Antigua has just won in this first stage of the process.
Very interesting!


 
Wednesday Calendar Just one talk today:
    At NYU's legal history series, Harold Forsythe, Professor of History, Fairfield University, presents Red River Blues: From Race War in Grant Parish, Louisiana to the Supreme Court.


 
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
    Introduction On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble).
    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:
      If “piracy” means using the creative property of others without their permission—if “if value, then right” is true—then the history of the content industry is a history of piracy. Every important sector of “big media” today—film, records, radio, and cable TV—was born of a kind of piracy so defined. The consistent story is how last generation’s pirates join this generation’s country club—until now.
    He begins with film, telling the story of motion-picture production companies that fled the east coast for California in order to avoid the Edison companies patents. A bit more complicated is the story of the sound-recording industry. Lessig points out that in the early days of the technology, it wasn’t clear whether sound-recordings infringed the copyrights of the owners of the sheet music. And of course, a battle over the content of the law ensued, pitting content proprietors against the purveyors of the new technology:
      The innovators who developed the technology to record other people’s works were “sponging upon the toil, the work, the talent, and genius of American composers,” and the “music publishing industry” was thereby “at the complete mercy of this one pirate.” As John Philip Sousa put it, in as direct a way as possible, “When they make money out of my pieces, I want a share of it.”
      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.”
    We know how the conflict was resolved—the Copyright Act was amended, extending protection to sound recordings—but this protection was limited in a way that is extremely important to Lessig’s argument against a permission-based system of intellectual property:
      But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law.
    And this precedent has been appropriated by a variety of scholars as the basis for proposals to set up a similar scheme for P2P. Neil Netanel, Jessica Litman, Bill Fisher and others have argued that the benefits of P2P can be preserved by establishing a tax on hardware (mp3 players and computers, for example) and then paying out the proceeds to the copyright owners based on their pro rata share of downloads (which would be sampled or monitored).
    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:
      These separate stories sing a common theme. If “piracy” means using value from someone else’s creative property without permission from that creator—as it is increasingly described today19— then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation—until now.
    The set of stories in the piracy chapter certainly pumps a set of intuitions. “That’s not fair"—I think in response to the concluding paragraph—if piracy was allowed for film, recorded music, radio, and cable, then it ought to be allowed for P2P. But why? “Two wrongs don’t make a right.” We might use the same stories to pump quite a different intuition. Copyright owners have been wronged before—by the recording industry, the broadcast industry, and the cable television industry—and the time has come to put this pattern of piracy to an end! In a more consequentialist vein, we might ask Lessig the counterfactual question: “What would have happened if copyright had been respected (or extended at an earlier stage) in each of these prior eras of piracy?” I don’t know whether Lessig is claiming that our history of piracy has made us better off, but I am just a bit worried that he is implying this without offering evidence.
    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:
      We could, for example, remind ourselves that for the first one hundred years of the American Republic, America did not honor foreign copyrights.We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right.
      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 doesn’t ask the next logical question. Even if foreign commercial copying is legally wrong, is it really morally wrong? LDC’s prohibit copying of U.S. works in large part because of the enormous economic pressure the U.S. can place on them—through the WTO and other mechanisms. The fact that LDCs have formally acquiesced to these pressures doesn’t really answer the double-standards argument—that the U.S. is asking LDCs to meet a standard that the U.S. itself did not meet. Moreover, Lessig’s history of piracy arguments from Chapter Four seem to based on a similar sort of double-standard argument.
    Lessig knocks down a few more arguments made to justify commercial piracy and then turns to P2P:
      Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet (and, arguably, off the Internet as well), Shawn Fanning and crew had simply put together components that had been developed independently.
      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.
    Lessig’s next move is to divide the world of P2P users into four categories:
      Type AThere are some who use sharing networks as substitutes for purchasing content.
      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.
    What struck me immediately about this list was Type C. Lessig lumps together two different groups: (i) There are many who use sharing networks to get access to copyrighted content that is no longer sold or (ii) that they would not have purchased because the transaction costs off the Net are too high. Given Type A—those who use P2P as a substitute for purchasing, Lessig’s categorization implies that Type C(ii) and Type A exhaust the possibilities not covered by Categories B, C(i), and D. But that isn’t the case. This part is tricky, so watch my argument carefully.
    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:
      From the perspective of economics, only type A sharing is clearly harmful. Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, yet good for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise available). So how sharing matters on balance is a hard question to answer—and certainly much more difficult than the current rhetoric around the issue suggests.
    This is a very fast argument. Let’s try to upack it—step by step. Notice that in describing Type C in the argument, Lessig says “since the work is not otherwise available.” That statement is accurate for Type C(i), but not for Type C(ii). Type C(ii) works are available, but the P2P user is simply not willing to pay the transaction costs. Type E works (not included in Lessig’s typology) are available, but the P2P users would be unwilling to pay the monopoly rent (royalty), even if transactions costs were zero.
    Now things get really interesting. What should is the optimal policy for P2P users of Type A, Type C(ii), and Type E:
    • Type A consists of P2P users who would pay for the CD if a free copy were not available via P2P. The choice of legal regimes for P2P will not determine whether Type A users will actually get the content (the music). If Type 2 users are not allowed to use P2P, they will buy. Optimally, Type A users will not have
    • Type C(ii) users are those who would purchase but for transaction costs. The choice of legal regimes for P2P will determine whether Type C users actually consume music. If they must choose between paying and going without, they will go without.
    • Type E consists of P2P users who would not pay, even with zero transaction costs, so long as the owner of the copyright charges a profit-maximizing royalty. Like Type C(ii) users, if Type E users must choose between paying and going without, they will go without; unlike Type C(ii) users, Type E users would forgo content even if transaction costs were zero.
    Lessig’s essential point is that there is a dead welfare loss if we allocate the entitlement to the copyright holder as against Type C(ii) and Type E P2P users. Copyright owners do not benefit from holding the entitlement against users of either type, because these users won't pay for CDs. Type C(ii) and Type E users lose (if the entitlement is assigned to the copyright owner), because they forgo consumption of music that they would enjoy.
    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:
      [T]he question we should be asking about file sharing is how best to preserve its benefits while minimizing (to the extent possible) the wrongful harm it causes artists. The question is one of balance. The law should seek that balance, and that balance will be found only with time.
    Of course, we all know where Lessig will go next. He will argue that the benefits of filesharing exceed the costs. He begins with the argument that filesharing actually stimulates demand for CDs. Type B users sample new songs, and buy more music:
      We start to answer this question by focusing on the net harm, from the standpoint of the industry as a whole, that sharing networks cause. The “net harm” to the industry as a whole is the amount by which type A sharing exceeds type B. If the record companies sold more records through sampling than they lost through substitution, then sharing networks would actually benefit music companies on balance.
    Coincidentally, as I was thinking about this portion of Lessig’s argument, I came across a story in yesterday’s Washington Post:
      Internet music piracy has no negative effect on legitimate music sales, according to a study released today by two university researchers that contradicts the music industry's assertion that the illegal downloading of music online is taking a big bite out of its bottom line.
      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.
    Of course, the RIAA disputes this study, but Lessig provides another argument that the RIAA cannot dispute:
      In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent.
    The RIAA does not argue (and could not plausibly argue) that without P2P, sales would have tripled from 1999 to 2001. So it looks like the gain to consumers from free P2P far exceeds lost sales. Of course, we have not yet taken into account the reduced incentive to invest in the production of new music, but the RIAA’s own figures establish a fairly massive welfare gain from illegal P2P copying. The decline in investment would have to be very significant to outweigh that gain.
    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:
      Or put differently, if you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well?
    This question is partially illuminating and partially misleading. Yes, it is true that Type C(i) filesharing is like the used book and record market in some respects, but there is an important difference. Gearing up record plants or printing presses involved relatively high fixed costs. So, the effective choice was between a used record or book and no copy at all. Gearing up a download site for out-of-print CD’s and records involves very low fixed costs—so low that people are willing to do it for no compensation at all. In the absence of free P2P, used CDs of out of print records would compete with low-cost downloads. So one might well believe that type C sharing should be stopped, but libraries and used book stores should remain open.
    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
      David McGowan (University of Minnesota) writes:
        [A] couple of comments on your blog of Larry Lessig's new book. 1. A lot of the dispute concerns why and how nonrivalrous consumption is ethically significant. On a Lockean view, it strengthens the case for strong IPRs by suggesting that the common is not diminished by those who draw on it. If one views property rights as justified only to prevent the harm of deprivation, however, then the fact of nonrivalrous consumption points strongly the other way. Is it yours because you made it, or mine because I do not deprive you of it when I take it? The anecdotal approach of the book makes it hard to analyze this issue as rigorously as one might like. One answer in the book--that US law has traditionally been utilitarian not Lockean--is not very satisfying, especially when you start asking the hard questions of utilitarianism. 2. F/OSS production rests squarely on copyright. Without copyright, there is no copyleft. On some issues, such as whether and when dynamic linking creates a derivative work, the FSF takes a fairly aggressive pro-author position. It is also not clear that large F/OSS projects are less hierarchical than commercial projects. 3. I know you know this, but there are always transaction costs, not just in p2p. The utilitarian question is whether the costs are so high that bargaining is less likely to approximate the optimal outcome than some other approach, such as compulsory licensing. If one believes Congress deals badly with IP issues, then pointing out that there are transaction costs (which are lower than they used to be, which is why F/OSS exists at all), may not make a strong comparative point insofar as institutional analysis is concerned.
      And over at Copyfight, Ernest Miller writes:
        Jeff Jarvis has an excellent idea for another use of Larry's work - the annotated version (Free debate). Those familiar with my writings know that I am a huge fan of annotations, which I also call recipe files or client-side remixes. Jeff asks,
          But wouldn't it be great to take a book and break it open at the spine for some back-and-forth? Why not turn a book into a conversation?
        Why not, indeed? Lessig would certainly favor such a concept, I believe. And if he didn't, too bad, the book is already licensed for such a thing. Poor arguments can be pointed out, but so can additional evidence on behalf of particular arguments. In a way, Solum's work is a step in this direction. Who will be the first to add Solum's book club to an edition of Lessig's book? (I don't see a license on your blog, Solum, is that okay with you?) Wouldn't it be great, also, to append all the reviews, negative and positive, as well as Lessig's promotional interviews to the book for easy future reference.
        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.
      Joseph Savirimuthu at Cyberbug has a series of posts up: C.E. Petit (Scriviner's Error) writes:
        I'm getting very irritated at the childish refusal on _both_ sides of the fence to treat differing types of copyrighted material on their own terms, rather than under a monolithic regime that eventually serves nobody very well. As I've mentioned before, I agree that "life plus 70" is too long a term; I don't agree with the various "5" or "14" year proposals. My modest proposal is to essentially trash the WFH concept. One need only look at the actual identity of the parties in copyright infringement suits to see the problem. If we can't get rid of WFH, I instead propose splitting the baby: Allow works controlled by the natural-person creators to have a SUBSTANTIALLY longer period in copyright than those controlled by "investors." The difference between "life + 70" and "flat 95" is statistically insignificant, given the median life expectancy of authors of trade books from the moment of publication. Instead, I propose that the "super short" period be assigned to WFH, leaving the "natural persons" period pretty much alone. This allows continued compliance with international trends, while also allowing the US to have its expansive (and excessive) WFH system--but for only 14 years (or maybe 25 at the outside). In other words, since the IP Clause contemplates economic motivation for creative works, USE economic motivation as the tool to adjust the "kind" of works created to enhance the progress of the sciences and useful arts.
    Tomorrow I will continue tomorrow with Chapters Six, Seven, Eight, and Nine. The full schedule of posts is set out below.
    The Schedule


Tuesday, March 30, 2004
 
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
    Introduction On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble).
    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:
      What was required for this technology to flourish? Obviously, Eastman’s genius was an important part. But also important was the legal environment within which Eastman’s invention grew. For early in the history of photography, there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no.
    And we can see why this example is important to Lessig's argument against a regime that requires permission for copying in the P2P context. As I was reading this section of Free Culture, Ronald Coase and his famous theorem inevitably came to mind. The Coase Theorem predicts that in an environment of zero transaction costs, the initial allocation of entitlements will not affect how resources are used. In the photography case and in the case of P2P copying of music or video, the zero transaction costs assumption does not hold. And hence the choice of entitlement assigning rules may determine whether the efficient outcomes are reached. Photography is a very clever example for Lessig. Copynorms concerning photography are well established. The photographer may rightfully photograph people, places, and things without obtaining permission from the subject or owner. There are limitations, to be sure, but the basic norm is that copying is o.k., socially and legally.
    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:
      Around the same time [as 9/11], a form of communication that has grown dramatically was just beginning to come into public consciousness: the Web-log, or blog. The blog is a kind of public diary, and within some cultures, such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way—it’s a kind of electronic Jerry Springer, available anywhere in the world. But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about their private life. But there are many who use the space to engage in public discourse. Discussing matters of public import, criticizing others who are mistaken in their views, criticizing politicians about the decisions they make, offering solutions to problems we all see: blogs create the sense of a virtual public meeting, but one in which we don’t all hope to be there at the same time and in which conversations are not necessarily linked. The best of the blog entries are relatively short; they point directly to words used by others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public discourse that we have.
    And here I am blogging about Lessig writing about blogging. The next section of the chapter is a riff on the virtues of blogging--familiar stuff, including the famous Trent Lott was brought down by the bloggers story. Lessig then moves on to what I think is the real point of the chapter--the open source software movement:
      FS/OSS is software whose source code is shared. Anyone can download the technology that makes a FS/OSS program run. And anyone eager to learn how a particular bit of FS/OSS technology works can tinker with the code. This opportunity creates a “completely new kind of learning platform,” as Brown describes. “As soon as you start doing that, you . . . unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it.” Each effort is a kind of apprenticeship. “Open source becomes a major apprenticeship platform.” In this process, “the concrete things you tinker with are abstract. They are code.” Kids are “shifting to the ability to tinker in the abstract, and this tinkering is no longer an isolated activity that you’re doing in your garage. You are tinkering with a community platform. . . . You are tinkering with other people’s stuff. The more you tinker the more you improve.” The more you improve, the more you learn. This same thing happens with content, too. And it happens in the same collaborative way when that content is part of the Web. As Brown puts it, “the Web [is] the first medium that truly honors multiple forms of intelligence.” Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web amplifies much more than text. “The Web . . . says if you are musical, if you are artistic, if you are visual, if you are interested in film . . . [then] there is a lot you can start to do on this medium. [It] can now amplify and honor these multiple forms of intelligence.”
    The lesson of chapter two is that copying (and remixing) content can be a powerful engine of creativity. Lessig ends the chapter with a note of pessimism:
      We’re building a technology that takes the magic of Kodak, mixes moving images and sound, and adds a space for commentary and an opportunity to spread that creativity everywhere. But we’re building the law to close down that technology.
    What does Lessig have in mind? The Digital Millenium Copyright Act? I think so, but we will have to wait to find out.
    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
      Archie Mazmanian writes:
        You don't have to go to Japan. In the 1930s and early 1940s here in the U.S. there were the "Tijuana Bibles" involving parodies of U.S. comic strips in a pornographic manner: Dick Tracy, Moon Mullins, Gasoline Alley, etc, engaging in all sorts of things. Just Google Tijuana Bibles for background. I don't know if any copyright infringement actions were brought. A lot of us teenagers in those days learned alot from these "Bibles".
      Nick Morgan of DeNovo has a nice post. Here's an excerpt:
        I myself was a bit uneasy with these sweeping contrasts between "anarchy" and "control," but I find myself more tolerant of the ambiguity than Solum. The notions of freedom Lessig contrasts are certainly not (yet) rigorous, but I think they adequately pinpoint the basic concerns of the anti-IP movement. The freedom so far articulated is the freedom that makes progress possible--open and flowing speech, expression, self-determination, and invention. There's no need to bring down the barrier that makes this beer mine, and not yours, but Lessig is setting us up to be critical of barriers that we don't, in fact, generally want, and that haven't, in fact, been part of our cultural traditions of creativity. Barriers that his book has so far suggested arise from big money and corrupt politics are apparently barriers that interfere with freedom as we like it.
    Tomorrow I will continue tomorrow with Chapters Four and Five. The full schedule of posts is set out below.
    The Schedule


 
Tuesday Calendar
    At Vanderbilt, Lisa Bressman presents Judicial Review of Agency Inaction.
    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:
    Friends, I regret to inform you that Regents Professor of Philosophy and Law (Emeritus) Joel Feinberg died today, March 29, in Tucson following a long illness. Professor Feinberg retired from the University of Arizona Philosophy Department in 1994 after 17 on the faculy. Prior to his appointment at Arizona, Professor Feinberg taught at Brown University, Princeton University, UCLA and Rockefeller University. He held the B.A., M.A. and Ph.D. from the University of Michigan. Professor Feinberg was internationally distinguished for his research in moral, social and legal philosophy. His major four volume work, *The Moral Limits of Criminal Law,* was published between 1984 and 1988. Professor Feinberg held many major fellowships during his career and lectured by invitation at universities around the world. He was an esteemed and highly successful teacher, and many of his students are now prominent scholars and professors at universities across the country. Professor Feinberg is survived by his wife, Betty, daughter, Melissa, and son, Ben. The family is planning a memorial to be held later this week on a date to be determined. Professor Jules Coleman of Yale University is presently composing a proper professional obituary for Professor Feinberg. You are welcomed to forward this message to others.
Feinberg was one of the greats of legal philosophy. His magnificient four-volume The Moral Limits of the Criminal Law is a true classic. I had a only a few chances to meet Feinberg, who was a gracious and quick-witted conversational partner. His work will live on.


 
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
    Introduction On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble).
    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:
      [W]e come from a tradition of “free culture”—not“free” as in “free beer” (to borrow a phrase from the founder of the freesoftware movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture”—a culture in which creators get to create only with the permission of the powerful, or of creators from the past. (xiv)
    And he clarifies his position:
      [A]n argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which artists don’t get paid. A culture without property, or in which creators can’t get paid, is anarchy, not freedom.Anarchy is not what I advance here.
      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.
    If you are a frequent reader of Legal Theory Blog, you know that I have a certain intellectual style. I have a strong affinity for intellectually rigorous, carefully formulated arguments. Lessig is a brilliant guy. I am a great admirer of his work on the relationship between Code and law--but Lessign's style is much looser, more free flowing, and less linear than I usually admire. As I start to read to Free Culture, I begin to get must a bit antsy. I can see where Lessig is going, but I am worried about precision. "Free will" and "free markets" aren't really free in the same sense. "A balance between anarchy and control"--that's a nice phrase, but what does it really mean? Of course, we are very early in the book and patience is a virtue. So I press on.
    The Introduction: "Cujus est solum ejus est usque ad coelum et ad inferos” A maxim of the common law went:
      "Cujus est solum ejus est usque ad coelum et ad inferos"--"To whomsoever the soil belongs, he owns also to the sky and to the depths."
    But this rule gave way in face of the new technology of air travel in U.S. v. Causby (1946), in which Justice Douglas wrote:
      [The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.
      “Common sense revolts at the idea.”
    Common Sense Revolts at the Idea Lessig is telling stories that are designed to pump certain intuitions--to put us in the right frame of mind for what is to come. I am reading the book as I write these posts, so I am not sure what is coming next, but I have a suspicion. I think that the Internet is going to play a role vis a vis intellectual property law that is similar to the role that air travel played vis a vis traditional property law. "Common sense" is going to tell us that IP must give way to the new reality, if the public interest is to be served.
    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:
      I have become increasingly amazed by the power of this idea of intellectual property and, more importantly, its power to disable critical thought by policy makers and citizens. There has never been a time in our history when more of our “culture” was as “owned” as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now. The puzzle is,Why? Is it because we have come to understand a truth about the value and importance of absolute property over ideas and culture? Is it because we have discovered that our tradition of rejecting such an absolute claim was wrong? Or is it because the idea of absolute property over ideas and culture benefits the RCAs of our time and fits our own unreflective intuitions?
    Piracy "Free Culture" is divided into Parts, and the first Part is titled "Piracy." In this introductory interlude, Lessig takes aim at the rhetoric of those who campaign against Peer-to-Peer (P2P) in order to protect copyright. Of course, we are familiar with the rhetorical moves. P2P users are thieves and pirates. But Lessig thinks that this rhetorica is built on an implausible assumption:
      Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value.Whenever I take something of value from someone else, I should have their permission. The taking of something of value from someone else without permission is wrong. It is a form of piracy.
    Lessig then makes a crucial move. This move has been made before, but Lessig makes it deftly and clearly. Here it is:
      [There is] a distinction that the law no longer takes care to draw—the distinction between republishing someone’s work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. Before the technologies of the Internet, this conflation didn’t matter all that much. The technologies of publishing were expensive; that meant the vast majority of publishing was commercial. Commercial entities could bear the burden of the law—even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of cotmmercial creators but effectively that of anyone.
    The cassette tape recorder empowered everyone with modest means to create their own new works--compilation tapes. The photocopy machine empower ordinary instructors to produce their own new works--course materials. P2P goes one giant step further--it empowers everyone to publish works in digital form. P2P publishing reaches the whole world, and the copies that are distributed can be recopied and redistributed with almost zero loss of fidelity to the original. This is truly a revoluationary change--one that upsets the basic premises upon which copyright law and copynorms are predicated.
    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?
      It may well be that the market as a whole is better off if doujinshi are permitted rather than banned, but that doesn’t explain why individual copyright owners don’t sue nonetheless. If the law has no general exception for doujinshi, and indeed in some cases individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this “free taking” by the doujinshi culture? I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by a friend from a major Japanese law firm. “We don’t have enough lawyers,” he told me one afternoon. There “just aren’t enough resources to prosecute cases like this.”
    Maybe. But I think that something else is going on. If just some of the producers of doujinshi comic books were sued or prosecuted, this might have a deterrent effect. You don't have to bring a suit against each and every infringer to enforce the law. I suspect that that the doujinshi phenomenon is better explained by copynorms, i.e. by the informal social attitudes that create expecations about what is ok and what is socially unacceptable. Doujinshi are permitted by Japanese copynorms. Because these norms are internalized, the question that Lessig asked, "Why don't you sue?," is not a question that even arises from within the culture.
    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:
      Creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now. That building is always and everywhere at least partially done without permission and without compensating the original creator. No society, free or controlled, has ever demanded that every use be paid for or that permission for Walt Disney creativity must always be sought. Instead, every society has left a certain bit of its culture free for the taking—free societies more fully than unfree, perhaps, but all societies to some degree.
      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?
    So far, Free Culture is a great read and provocative. I still don't know how Lessig will tie this all together, but I am eager to find out.
    Tomorrow I will continue tomorrow with Chapters Two and Three. The full schedule of posts is set out below.
    The Schedule


 
Monday Calendar
    At the University of Chicago's law and philosophy series, Lauren Berlant, University of Chicago English Department, is presenting.
    At New York University, Eleanor Fox presents Taming Unruly Horses: The Laboratory of Global Antitrust. Here is a taste:
      There are now nearly 100 national systems of antitrust. There are many systems clashes. There are many circumstances of unnecessary and overlapping regulation. There are also many cases in which a global vision is more coherent than a nation-centered one.
      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:
    Some international tribunals, such as the Iran-U.S. claims tribunal and the trade dispute panels set up under GATT, are dependent in the sense that the judges are appointed by the state parties for the purpose of resolving a particular dispute. If the judges do not please the state parties, they will not be used again. Other international tribunals, such as the International Court of Justice, the Inter-American Court of Human Rights, and the new International Criminal Court, are independent in the sense that the judges are appointed in advance of any particular dispute and serve fixed terms. The conventional wisdom, which is based mainly on the European experience, is that independent tribunals are more effective at resolving disputes than dependent tribunals are. We argue that the evidence does not support this view. We also argue that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. However, selection effects and other methodological problems render a firm conclusion impossible. We support our argument through an examination of qualitative and quantitative evidence, and we argue that the European Court of Justice is not a good model for international tribunals because it owes its success to the high level of political and economic unification among European states. We conclude with pessimistic predictions about the International Criminal Court, the International Tribunal for the Law of the Sea, and the WTO dispute resolution mechanism, the newest international tribunals.


 
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:
    In this paper, the author reviews the first six actions taken by the Federal Trade Commission (FTC) to safeguard consumers' privacy under the agency's authority to prosecute unfair or deceptive trade practices. Six conclusions can be made from these cases: First, the FTC has chosen to take enforcement actions only in cases with strong merits. Second, the protection of children's online activities is a priority of the FTC. Third, deception is the principal theory on which the FTC has relied to enforce violations of the FTCA against online businesses. Fourth, it is possible for the FTC to pursue a privacy claim under an unfairness theory. However, the unfairness theory is more likely to be successful when pursuing violations of children's privacy. Fifth, a strong showing of consumer harm is not required for an action based on unfairness. Merely misrepresenting privacy practices or violating a guarantee of privacy is sufficient to actuate agency action. Under the deception theory, there is no requirement to demonstrate harm. Last, monetary damages have not been assessed in FTC privacy actions against online businesses.


 
Vranas on Doris Peter Vranas (Iowa State, Philosophy) has posted a review of John Doris's Lack of Character. Here is a taste:
    This long-awaited book has already become a standard reference in the small but burgeoning field of “empirically informed ethics”. Doris begins by contrasting two views of human nature: (i) globalism, according to which people possess “robust” character traits (which help their possessors withstand situational pressures) and thus typically behave consistently across situations, and (ii) situationism, according to which people lack robust character traits and thus typically behave inconsistently across situations.1 Doris continues by defending two main empirical theses: (1) that situationism is true (and thus globalism false), and (2) that globalism is nevertheless widely accepted by philosophers and laypeople alike. Doris concludes by examining some ethical implications of his empirical theses, and defends in particular two normative theses: (3) that we should evaluate people not in terms of robust character traits but rather in terms of “local”, situation-specific traits, and (4) that moral education should aim not at inculcating robust virtues but rather at helping people bring about situations propitious to virtuous behavior. I agree with all four of the above theses, but I will argue that some of Doris’s arguments need improvement. I will deal only with arguments in defense of the thesis that situationism is true.
For a different perspective, see my post, Do Humans Have Character Traits?


Sunday, March 28, 2004
 
Legal Theory Calendar
    Monday, March 29
      At the University of Chicago's law and philosophy series, Lauren Berlant, University of Chicago English Department, is presenting.
      At New York University, Eleanor Fox is presenting.
    Tuesday, March 30
      At Vanderbilt, Lisa Bressman presents Judicial Review of Agency Inaction.
      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?
    Wednesday, March 31
      At NYU's legal history series, Harold Forsythe, Professor of History, Fairfield University, presents Red River Blues: From Race War in Grant Parish, Louisiana to the Supreme Court.
    Thursday, April 1
      At Florida State University, Randy Barnett, Boston University Law School, presents Lawrence v. Texas and Justice Kennedy?s Libertarian Revolution and Chapter 10 of Restoring the Constitution.
      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.
    Friday, April 2
      At the University of San Diego, Adrian Vermeule presents The Judiciary Is a They, Not An It: Two Fallacies Of Interpretive Theory.
      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
    Introduction One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public goods (e.g. national security) should be provided by government whereas private goods (automobiles) ought to be provided by markets. For legal theorists, the line between public and private goods tracks one of the important fault lines in the law--between the private law fields of property, contract, tort, and so forth and public law fields such as environmental law, administrative law, and constitutional law. This post provides a basic introduction to the economic distinction between public and private goods for law students (especially first year law students) with an interest in legal theory.
    It may be helpful to quickly preview the basic idea. So here goes:
    • Public goods have two characteristics--nonrivalrousness and nonexcludability. For example, consumption of national defense is nonrivalrous (my being protected by the U.S. armed forces doesn't diminish your protection). National defense is a nonexcludable good: the Army cannot say to Mexico, "Solum hasn't paid his national defense bill, "Go ahead and attack him."
    • Private goods are rivalrous and excludable. If I own a laptop computer, my use of it diminished your ability to use it; therefore, my consumption of the laptop rivals yours. Moreover, I can exclude you from the use of my laptop (by locking it up when I am not using it).
    We use markets to provide goods like laptops (that excludable and rivalrous), but government provides goods like national defense (that are nonexcludable and nonrivalrous).
    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 phrase "public good" or "public goods" shall be used to refer to the economists’ idea of good that meets the criteria of nonrivalrousness and nonexcludability.
    • The phrases "public interest" or "common good" shall be used to refer to the idea of goods that benefit the public at large as distinguished from goods or interests that benefit a faction (or "special interest group").
    • The phrase "public resource" shall be used to refer to private goods that are owned by the government or held in trust for the public. National parks are indisputably public resources, but it may not be the case that they are public goods in the economic sense.
    We could use the phrase "public good" to refer to the public interest or to public resources, but for the purposes of this post, let's stipulate that "public good" shall be reserved for the economic sense of the phrase.
    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:
      1. Public goods are nonrivalrous and nonexcludable.
      2. Private goods are rivalrous and excludable.
      3. Toll goods are nonrivalrous and excludable.
      4. Common pool goods are rivalrous and nonexcludable.
    Table One shows the four categories as a two-by-two matrix:
    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:
    Author Meets Critics: Brian Skyrms, The Stag Hunt and the Evolution of Social Structure
      1:00-4:00 p.m. Chair: Jeffrey Barrett (University of California-Irvine) Critics: James M. Joyce (University of Michigan) Joshua Epstein (Brookings Institution and Santa Fe Institute) J. McKenzie Alexander (London School of Economics) Author: Brian Skyrms (University of California-Irvine)
    Author Meets Critics: Laurie Shrage, Abortion and Social Responsibility: Depolarizing the Debate
      1:00-3:00 p.m. Chair: Ann Garry (California State University-Los Angeles) Critics: Christine Littleton (Law and Women's Studies, University of California-Los Angeles) Meredith Michaels (Smith College) Author: Laurie Shrage (California State Polytechnic University- Pomona)
    Invited Symposium: Aristotle's Nicomachean Ethics
      1:00-3:00 p.m. Chair: Nicholas D. Smith (Lewis & Clark College) Speaker: Paula Gottlieb (University of Wisconsin-Madison) "Aristotle and Moral Dilemmas" Respondents: Susan Sauvé Meyer (University of Pennsylvania) Christopher Rowe (University of Durham)
    Colloquium: Moral Rules
      4:00-5:00 p.m. Chair: Peter Tan (Mount Saint Mary's College) Speaker: Jeffrey C. Brand-Ballard (George Washington University) "Rules That Bend Without Breaking" Commentator: Larry Alexander (University of San Diego) 5:00-6:00 p.m. Chair: Darryl Wright (Harvey Mudd College) Speaker: Betsy C. Postow (University of Tennessee) "Valid Competing Moral Codes" Commentator: Bruce Landesman (University of Utah) 6:00-7:00 p.m. Chair: Laurence Houlgate (California State Polytechnic University-San Luis Obispo) Speaker: Rebecca Stangl (University of Notre Dame) "Dancy's Particularism and the Point of Moral Principles" Commentator: Leonard Kahn (University of California-Irvine and Oxford University)
    Special Session Arranged by the APA Committee on Philosophy and Law and the Society for Philosophy and Public Affairs
      4:00-7:00 p.m. Topic: Women and the U.S. Constitution Chair: Carol Gould (Stevens Institute of Technology and Columbia University) Panelists: Sibyl Schwarzenbach (Graduate Center, City University of New York) Tracy Higgins (Fordham University) Judith DeCew (Clark University) Carol Gould (Stevens Institute of Technology and Columbia University)
    Colloquium: Causation
      4:00-5:00 p.m. Chair: Kyle Stanford (University of California-Irvine) Speaker: Michael Tooley (University of Colorado-Boulder) "Counterfactual Analyses of Causation" Commentator: Anjan Chakravartty (University of Toronto) 5:00-6:00 p.m. Chair: Doug Hill (University of California-Irvine) Speaker: Ana C. Sartorio (University of Wisconsin-Madison) "Disjunctive Causes" Commentator: Brad Armendt (Arizona State University) 6:00-7:00 p.m. Chair: John Stopple (University of California-Irvine) Speaker: Jonathan M. Schaffer (University of Massachusetts-Amherst) "Contrastive Causation" Commentator: Margaret Schabas (University of British Columbia)


 
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:
    Special Memorial Session on Bernard Williams's Philosophy
      9:00 a.m.-12:00 p.m. Chair: Sarah Buss (University of Iowa) Speakers: Jonathan Lear (University of Chicago) Martha Nussbaum (University of Chicago) Anthony Long (University of California-Berkeley) Richard Moran (Harvard University)
    Symposium: Race and Capital Punishment
      9:00 a.m.-11:00 a.m. Chair: Talia Bettcher (California State University-Los Angeles) Speaker: Michael J. Cholbi (California Polytechnic University- Pomona) "Race, Capital Punishment, and the Cost of Murder" Commentators: Deirdre Golash (American University) Elizabeth A. Linehan (St. Joseph's University)
    Invited Symposium: Moral Psychology in Actual Social Worlds
      9:00 a.m.-12:00 p.m. Chair: Victoria McGeer (Princeton University and Australian National University) Speakers: Peggy DesAutels (University of Dayton) "Moral Mindfulness" James Lindemann Nelson (Michigan State University) "Austen's Emma and Ethical Formation" Catherine Wilson (University of British Columbia) "Evolutionary Psychology and the Preferences of Women" Claudia Card (University of Wisconsin-Madison) "Torture in Ordinary Circumstances"
    Invited Symposium: Encountering Evil
      9:00 a.m.-12:00 p.m. Chair: Pamela Hood (San Francisco State University) Speaker: C. Robert Mesle (Graceland University) Respondents: John Roth (Claremont McKenna College) Stephen Davis (Claremont McKenna College) D. Z. Phillips (Claremont Graduate University) Commentators: Marilyn Adams (Yale Divinity School) Phillip Quinn (University of Notre Dame)
    Invited Symposium: Philosophical Perspectives on Cultural Property
      9:00 a.m.-12:00 p.m. Chair: Julie Van Camp (California State University-Long Beach) Speakers: Elizabeth Coleman (Center for Cross Cultural Research, Australian National University) "Ownership, Property and Rights" Claire Lyons (Getty Research Institute) "The Universal Museum? Antiquities in the National and International Perspective" Geoffrey Scarre (University of Durham) "Human Remains and Cultural Property" Daniel Shapiro (School of Law, Columbia University; and President, International Cultural Property Society) "Philosophy and Cultural Property" James O. Young (University of Victoria) "Cultures and Cultural Property"
    Author Meets Critics: Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law
      9:00 a.m.-12:00 p.m. Chair: Eric Cavallero (University of Arizona) Critics: Brian Barry (Columbia University) David Miller (Oxford University) Author: Allen Buchanan (Duke University)
    Author Meets Critics: Christine Swanton, Virtue Ethics: A Pluralistic View
      9:00 a.m.-12:00 p.m. Chair: Maria Merritt (College of William & Mary) Critics: Julia Driver (Dartmouth University) Robert Solomon (University of Texas) Linda Zagzebski (University of Oklahoma) Author: Christine Swanton (University of Auckland)


 
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:
  • Monday, March 29--Preface, Introduction, & Chapter One (pp. xiii-30).
  • Tuesday, March 30--Chapters Two & Three (pp. 31-52).
  • Wednesday, March 31--Chapters Four & Five (pp. 53-80).
  • Thursday, April 1--Chapters Six, Seven, Eight, & Nine (pp. 81-115).
  • Friday, April 2--Chapter Ten (pp. 116-174).
  • Monday, April 5--Chapters Eleven & Twelve (pp. 175-212).
  • Tuesday, April 6--Chapters Thirteen & Fourteen (pp. 213-256)
  • Wednesday, April 7--Conclusion & Afterword (pp. 257-306)
If you are reading along, I'd love to hear your comments and reactions to Lessig's book or to 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:
    Though there is no right against legal paternalism as such currently enacted anywhere in the world, the historical development of human rights cannot be understood unless it is seen as, in part, the development of rights against legal paternalism. The most important event in the historical development of rights against legal paternalism is the development of a right to religious freedom. The reason is simple: There is no greater harm a person could do to herself than to bring it about that she suffers unbearable torment for all eternity. Suppose I believe that will be your fate if you do not practice my religion. I propose to save you (and others like you) from eternal suffering by making it illegal for you to practice any religion but mine. This legal establishment of my religion would be an example of legal paternalism, because enforcing it would involve my overruling your own judgment about what is good for you. 2 A right to freedom of religion represents a rejection of this kind of paternalism. Once it is allowed that people should be free to make and follow their own judgments of what will be to their eternal benefit and harm, it is hard to see why they should not be equally free to make and act on less momentous decisions about what is good for them. After a right to religious freedom, the second most important step in the development of a right against legal paternalism is the development of the rights that guarantee the necessary background conditions for autonomy, especially the rights to civil liberties. In addition to being essential background for autonomy, rights to freedom of expression, freedom of association, and freedom of the press are important steps in the development of rights against legal paternalism, because they involve a recognition that those in authority should not be deciding which ideas it is bad for people to be exposed to or to think about or to discuss. With all these rights in place, there are many potential pathways to a more robust right against legal paternalism. The typical pathway involves the recognition of other choices that, like the choice of a religion, are deeply personal choices, the effects of which are borne primarily by the person making the choice. In spite of opposition from almost all major religions and in spite of laws to the contrary, in the U.S., a right against legal paternalism has gradually developed around personal choices concerning sex, love, and death.


 
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:
    Invited Symposium: Rethinking Just War Theory: Who is Innocent?
      1:00-4:00 p.m. Chair: Deen Chatterjee (University of Utah) Speakers: Lionel McPherson (Tufts University) "The Moral Agency of Combatants" Kai Draper (University of Delaware) "Noncombatant Liability" Virginia Held (Graduate Center, City University of New York) "Legitimate Authority in Non-State Groups Using Violence"
    Invited Symposium: Virtue Epistemology
      1:00-4:00 p.m. Chair: Jay Wood (Wheaton College) Speakers: Christopher Hookway (Sheffield University) "Epistemic Virtues and Reasons for Belief" John Greco (Fordham University) "Holding Defeat to the Fire: Virtue Epistemology and the Problem of Defeating Evidence" Christine McKinnon (Trent University) "Hypocrisy and Some Related Vices: Lessons for Virtue Epistemologies?" Commentator: Jay Wood (Wheaton College)
    Author Meets Critics: Fred D'Agostino, Incommensurability and Commensuration: The Common Denominator
      1:00-4:00 p.m. Chair: S. A. Lloyd (University of Southern California) Critics: Christopher MacMahon (University of California-Santa Barbara) Gerald Gaus (Tulane University) Author: Fred D'Agostino (University of New England, Australia)
    Author Meets Critics: Martha Nussbaum, Upheavals of Thought
      1:00-4:00 p.m. Chair: Rosalind Hursthouse (University of Auckland) Critics: John Deigh (University of Texas-Austin) Ronald deSousa (University of Toronto) Jerrold Levinson (University of Maryland-College Park) Author: Martha Nussbaum (University of Chicago)
    Colloquium: Moral Duties
      1:00-2:00 p.m. Chair: Geoffrey Sayre-McCord (University of North Carolina-Chapel Hill) Speaker: Steven Sverdlik (Southern Methodist University) "Acting from Duty and Self-Interest" Commentator: Mitch Avila (California State University-Fullerton) 2:00-3:00 p.m. Chair: James Anderson (University of San Diego) Speaker: Sergio Tenenbaum (University of Toronto) "Conventionalism about Promise Keeping" Commentator: Adam Moore (University of Washington) 3:00-4:00 p.m. Chair: Hans Seigfried (Loyola University-Chicago) Speaker: Willem F. Bakker (Washington University) "On the Supposed Duty to Promote Others' Perfection" Commentator: Susan M. Purviance (University of Toledo)
    Invited Symposium: Moral Realism
      4:00-6:00 p.m. Chair: John Devlin (Arizona State University) Speaker: James Dreier (Brown University) Commentators: Nadeem Hussain (Stanford University) Robert Johnson (University of Missouri-Columbia)
    Symposium: Blame
      4:00-6:00 p.m. Chair: Bryan Benham (University of Utah) Speaker: Pamela Hieronymi (University of California-Los Angeles) "The Fairness of Blame" Commentators: Michael McKenna (Ithaca College) Christopher Ciocchetti (Centenary College of Louisiana)


 
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:
    Amanda mentioned that when she was standing in line for Newdow, a gentleman bought a place in line for $100. I asked her whether she would have bought a place in line for $100 if she had arrived too late the night before to be sure to score a seat. No, she said, she could think of prized books of poetry she'd rather blow the money on. Then I asked her whether she would have sold her place in line for $100. No, she said, she wouldn't. Economists will recognize this as the psychological "endowment effect". That is, the effect that causes us to refuse to sell things we have, even when we would refuse to buy them if we did not. It drives pure economists nuts, even though it's a part of how we frequently live our lives. My own suspicion is that the vexing "endowment effect" could be more effectively labelled as a "transaction aversion."
Surf on over to Crescat Sententia for more.


 
APA Pacific Division Today Here are some of the programs at the APA Pacific Division in Pasadena This Morning:
    Invited Symposium: "Families of Choice? Autonomy and the Practice of Having and Raising Children"
      9:00 a.m.-12:00 p.m. Chair: Sara Goering (University of Washington) Speakers: Eva Kittay (State University of New York-Stony Brook) "Planning to Go to Italy and Winding up in Holland - The Delusion of Choice in Planning a Family" Carolyn McLeod (University of Western Ontario) "Triggering a Temptation for Control: The Move to Single Embryo Transfer in In Vitro Fertilization" Claudia Mills (University of Colorado) "Children and Culture: Some Questions about Transcultural Adoption"
    Author Meets Critics: Paul Bloomfield, Moral Reality
      9:00 a.m.-12:00 p.m. Chair: Albert Flores (California State University-Fullerton) Critics: John Doris (University of California-Santa Cruz) Don Loeb (University of Vermont) Russ Shafer-Landau (University of Wisconsin-Madison) Author: Paul Bloomfield (University of Connecticut)
    Author Meets Critics: Brad Hooker, Ideal Code, Real World
      9:00 a.m.-12:00 p.m. Chair: Thomas Carson (Loyola University-Chicago) Critics: Alison McIntyre (Wellesley College) Richard Arneson (University of California-San Diego) Author: Brad Hooker (University of Reading)
    Colloquium: Liberalism
      9:00-10:00 a.m. Chair: Simon Roberts-Thomson (University of Arizona) Speaker: Steven P. Scalet (Binghamton University) "Liberalism's Bind" Commentator: Walter Schaller (Texas Tech University) 10:00-11:00 a.m. Chair: Michael White (Arizona State University) Speaker: Robert B. Talisse (Vanderbilt University) "Problems with Galston's Pluralist Liberalism" Commentator: Craig Duncan (Ithaca College) 11:00 a.m.-12:00 p.m. Chair: Rodney Peffer (University of San Diego) Speaker: David Reidy (University of Tennessee) "Reciprocity Confronts Reasonable Disagreement: From Liberal to Democratic Legitimacy" Commentator: John Christman (Pennsylvania State University)
    More to come this afternoon!


 
Friday Calendar
    At the University of San Diego, Chris Drahozal presents Ex Ante Selection of Disputes for Litigation.
    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:
    The Information Society Project at Yale Law School is pleased to announce its upcoming conference on Cybercrime and Digital Law Enforcement entitled: "Digital Cops in Virtual Environment," which will take place on March 26-28, 2004 at Yale Law School. This ground-breaking conference will bring together policy makers, security experts, law enforcement personnel, social activists and academics to discuss the emerging phenomena of cybercrime and law enforcement. The conference will question both the efficacy of fighting cybercrime and the civil liberties implications arising from innovations in law enforcement methods of operation. During this weekend-long conference, a distinguished group of experts will discuss how a shift to a digital environment: (1) changes the crime scene; (2) facilitates the commission of new types of crimes; (3) leads to radical changes in law enforcement methods; (4) equips law enforcement with new tools of surveillance, technological design and risk sorting systems; (5) presents challenges for the legal process; and (6) introduces new forms of social resistance through hacktivism and counter-surveillance.


 
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:
    The Air Transportation Stabilization Board has followed its legislated mandate to provide appropriate stabilization to airlines for negative effects from the September 11 tragedy, but has not mission crept into saving airlines from pre-9/11 maladies. A laissez-faire libertarian who philosophically abhors industrial policy may have reason to feel comfortable that this program to assist an industry directly harmed by terrorism has provided an effective policy model for those rare circumstances when government intervention may be necessary.


 
Thompson on Human Form Michael Thompson has posted Apprehending Human Form. Here is a taste:
    My immediate aim in this lecture is to contribute something to the apt characterization of our representation and knowledge of the specifically human life form, as I will put it - and, to some extent, of things 'human' more generally. In particular I want to argue against an exaggerated empiricism about such cognition. Meditation on these themes might be pursued as having a kind of interest of its own, an epistemological and in the end metaphysical interest, but my own purpose in the matter is practical-philosophical. I want to employ my theses to make room for a certain range of doctrines in ethical theory and the theory of practical rationality - doctrines, namely, of natural normativity or natural goodness, as we may call them. I am not proposing to attempt a positive argument for any such 'neo-Aristotelian' position, but merely to defend such views against certain familiar lines of objection; and even here my aims will be limited, as will be seen.


 
Confrence Announcement: New Sources of Norms in International Law
    The Michigan Journal of International Law is pleased to announce its 25th Anniversary Symposium, to be held March 19-20, 2004: Diversity or Cacophony?: New Sources of Norms in International Law Overview: The symposium will examine one of the defining problems for the future of international law, namely the interplay between the current fragmentation of the international legal system and the simultaneous move of that system away from its traditional status as the exclusive realm of States. As the global legal system moves away from the traditional view of international law as purely the interaction of sovereign States, there has been a growing multiplicity of sources of international legal norms. For example, States have voluntarily bound themselves within supranational organizations at the same time as non-state actors are gaining access to international legal fora. Moreover, the traditional international legal system is increasingly encountering problems from jurisdictional overlap, as bodies and organizations designed to regulate limited areas of international law are being forced to recognize the relevance to their own deliberations of areas traditionally seen as outside their realm of concern. However, difficulties also arise when these "merging" tendencies are ignored, and specialized organizations develop rules while only paying attention to their limited brief. Since the international system remains essentially horizontal and decentralized, there is no agreed upon hierarchy of binding norms, and hence no established mechanism through which to resolve conflicts between bodies that have reached inconsistent views due to their differing areas of interest. This lack of structural unity also means that violations of international law can now be challenged in multiple tribunals, with different procedural rules, different remedies, and possibly different results, allowing important issues to be determined simply through forum shopping by States and/or individuals. These "problems" resulting from the fragmentation of the international legal order are intensified by the fact that sub-State actors (individuals, groups, corporations, etc.) are increasingly gaining access to fora traditionally reserved to States. Although individuals and organizations could, of course, always act internationally, they were nonetheless traditionally acting within boundaries set out by agreements between States. With the increasing access of sub-national entities to international law bodies, however, non-State groups have begun to gain the power to shape the international legal system directly, rather than by domestically influencing States. As a result, States may end up bound by decisions put forward by bodies they created as part of a traditional State-based system, but based upon reasoning put forward by a non-State. The goal of the Symposium is to present important contemporary work on this continuing trend in international law, addressing both its positive and negative aspects, as well as to serve as a gathering point for scholars from various disciplines who are interested in the future of international law. Call for Papers Symposium attendees will be invited to submit short (approximately 2-5 pages) response pieces to the views presented, for potential publication accompanying the articles by the Speakers (plus, of course, any response the Speaker may wish to make). These responses should be a sustained argument addressing a single point made by a Speaker. An attendee is allowed to submit more than one response, and may also have more than one such published in the Journal. This invitation is open to all symposium attendees, whether faculty, students, or the general public, and pieces will be selected based solely upon whether they make an argument the Journal feels should be presented alongside the views of the Speaker. All final publication determinations are at the discretion of the Journal staff. Responses will not be returned unless a stamped, self-addressed envelope is included with the submission. Schedule: Friday Afternoon 5.00 - Opening Address Iulia Motoc (Professor of Public International Law, University of Bucharest) 5.45 - Plenary Panel: Fragmentation and the Resolution of Public International Disputes John H. Jackson (University Professor, Georgetown University Law Center) Charles Koch (Dudley Warner Woolbridge Professor of Law, William and Mary School of Law) Joost Pauwelyn (Associate Professor of Law, Duke University School of Law) P.S. Rao (Member, International Law Commission) Moderator: William Burke-White (Lecturer of Public and International Affairs, Woodrow Wilson School of Public and International Affairs, Princeton University) Saturday 9.00 - First Talks: The Role of the State in International Law Daniel Philpott (Assistant Professor of Political Science, University of Notre Dame) Gunther Teubner (Professor of Private Law and Legal Sociology, University of Frankfurt) Moderator: Andreas Paulus (Assistant Professor of Law, Ludwig-Maximilians-University Munich; Visiting Assistant Professor of Law, University of Michigan) 10.30 - First Panel: The Creation of Supra-National Sovereignty Stephen Krasner (Graham H. Stuart Professor of International Relations, Stanford University) Dan Sarooshi (Herbert Smith University Lecturer in International Economic Law, Faculty of Law, University of Oxford) Saskia Sassen (Ralph Lewis Professor of Sociology, University of Chicago; Centennial Visiting Professor, London School of Economics) Karel Wellens (Professor of International Law, Catholic University of Nijmegen) Moderator: Daniel Halberstam (Assistant Professor of Law, University of Michigan Law School) Lunch: 12.30-1.30 1.30 - Second Panel: Non-State Actors and the Contemporary Legal Order Thomas Carbonneau (Samuel P. Orlando Distinguished Professor of Law, Dickinson School of Law) Francesco Francioni (Professor of International Law and Human Rights, European University Institute) Robert L. Howse (Alene and Allan F. Smith Professor of Law, University of Michigan Law School) Jordan Paust (UH Law Foundation Professor of Law, University of Houston Law Center) Moderator: Michael Barr (Assistant Professor of Law, University of Michigan Law School) 3.30 - Second Talks: Internal Fragmentation: Partial Sovereignty of Culturally Distinct Minorities Montserrat Guibernau (Reader in Politics, Open University) Olli Lagerspetz (Docent, Philosophy, bo Academy) Moderator: Margaret Moore (Professor of Political Science, Queens University) 5.00. Concluding Address Kalypso Nicolaidis (University Lecturer in International Relations, University of Oxford) Banquet: 6.30 Banquet Address Ambassador Emilio Cardenas (Adjunct Professor of Law, University of Michigan Law School) Registration will cost $35 for the Symposium, and $40 for the optional banquet on Saturday night with the Speakers. Participants interested in attending the banquet will be requested (though not required) to express an interest in a particular subject area of the Symposium, so that seating at the Banquet can be arranged to facilitate discussion. Official registration forms will be available from the Journal's website in early December. http://www.law.umich.edu/JournalsAndOrgs/mjil Any inquiries can be made to Tony Cole (ancole@umich.edu), Symposium Editor, Michigan Journal of International Law.


 
Sandefur & Lynch Debate Plea Bargaining
    Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project) has posted In Defense of Plea Bargaining (Regulation, Vol. 26, No. 3, pp.28-31, Fall 2003):
      Plea bargaining, like all government activities, is liable to abuse. Yet the mere fact that a process can be abused does not necessarily make that process unconstitutional, or immoral. Plea bargaining is rife with unfair prosecutorial tactics, and it needs reform. But the process itself is not unconstitutional, nor does it violate a defendant's rights.
    Timothy Lynch (Cato Institute) has posted The Case Against Plea Barganing (Regulation, Vol. 26, No. 3, pp. 24-27. Fall 2003).
      Plea bargaining has come to dominate the administration of justice in America. Even though plea bargaining pervades the justice system, I argue that the practice should be abolished because it is unconstitutional. There is no doubt that government officials deliberately use their power to pressure people who have been accused of crime, and who are presumed innocent, to confess their guilt and to waive their right to a formal trial.


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:
    Marriage and its benefits in each state shall be defined by the legislature or the people thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.
Compare this to the text of the Ninth Amendment:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
How would these two provisions interact? Kurt Lash offers the following analysis:
    Although there are a number of intriguing textual and historical questions about the Ninth Amendment, its interaction with the FMA is not difficult. The FMA either leaves Ninth Amendment retained rights unaffected or it actually serves to protect rights retained under the Ninth. Retained rights under the Ninth are either collective or personal. If personal, they are either natural, positive or both. For the purposes of the FMA, it does not matter which of these is the case. All retained rights referred to in the Ninth Amendment are subject to being delegated by the people to their respective state governments. The same is true for reserved powers under the Tenth Amendment--they too may be delegated by the people to their respective state governments. Both the Ninth and Tenth Amendments leave to the people control over non-delegated rights and powers. So, suppose that a retained right of the people is the right to marry, including the right to marry regardless of sex. The people retain the right to delegate control of marriage, including the right to marry regardless of sex, to their respective state government. Since the FMA basically allows the people to delegate control of such rights to their state government, the FMA is not in conflict with the Ninth. Even if this right is considered a natural right, and therefore not a matter legitimately delegated to state governments, it still remains under the control of the people of the several states. The people may assert such a right, and the enumeration in the federal constitution of certain rights shall not be contrued to deny or disparage such retained rights. But even if the federal constitution is not to be construed to deny or disparage such rights, this does not answer whether the people of a state have decided to deny regulatory power over marriage to the federal government, but delegate control over the same to state governments. It simply becomes an issue of state law. The clearest example of this is James Madison's arguments against the Alien and Sedition Acts. Madison believed that speech was a retained natural right of the people. His argument against the Sedition Acts, however, was that Congress had both violated the retained rights of the First Amendment and the reserved sovereignty of the states. In the alternative, suppose that the Ninth Amendment refers to collective as well as personal rights. For example, the people retain the colective right to regulate marriage at a local level. In this case, the FMA actually defends a retained right of the people. In this case, it defends the people's right to local control over marriage against interference by federal courts and their construction of the constitution. In fact, under this approach, the FMA becomes an example of how the Ninth Amendment was meant to be applied. If the Ninth, like the rest of the Bill of Rights, was meant to control federal interference with matters thought best left to the people of the several states, then the FMA could be placed directly after the Ninth and prefaced by the words "for example . . .
Kurt's important two part article on the Ninth Amendment has just been accepted by the Texas Law Review. You can download part I here and part II here.


 
Thursday Calendar


 
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:
    Marriage and monogamy feature prominently on the public stage, but not all romantic relationships come in pairs. While people across the political spectrum debate the different-sex requirement of civil marriage, this article focuses on another limiting principle of monogamy's core institution: the twoness requirement. In particular, the article elaborates the practice and ethical principles of contemporary relationships of more than two people, called polyamory. Such relationships take many forms and aspire to several identifiable values, including radical honesty, consent, and the privileging of more sexual and loving experiences over other activities and emotions such as jealousy. The article asks why polyamorous relationships face such severe normative censure. After considering various objections, the article concludes that one key component of the censure is, paradoxically, the ability of most people to imagine themselves having sex with someone other than a primary partner-in other words, a paradox of prevalence. Despite the widespread desire for more than one sexual partner, however, and despite relatively widespread nonmonogamy, most people do not engage in polyamorous relationships. But neither do most people affirmatively choose monogamy: Laws and norms exert strong pressure on people to promise monogamy, and most people simply succumb to this pressure. The article argues that although monogamy is a sound choice for many, polyamory is a sound choice for others. Building on this premise, the article considers some ways that information-forcing principles of contract law might be used to help encourage people to make active, reflective choices about monogamy.


 
Marmor on Constitutional Interpretation Andrei Marmor (University of Southern California - Law School) has posted Constitutional Interpretation on SSRN. Here is the abstract:
    This is the draft of a new chapter for the Revised Second Edition of my Interpretation and Legal Theory (forthcoming by Hart Publishing). It focuses on some of the unique moral and interpretative concerns of constitutional interpretation. The interpretation of a written constitution typically involves the power of the judiciary to determine issues of profound moral and political importance, on the basis of very limited textual guidance, resulting in decisions that may last for decades, and are practically almost impossible to change by regular democratic processes. This tension between the scope of the judicial power and the relative paucity of constraints informs the main concerns of constitutional interpretation. Accordingly, this essay concentrates on two main questions: The question of the moral legitimacy of a constitutional regime, and the question of how constitutional interpretation should be carried out. It is one of the main arguments of this essay that the answers to these two questions are closely related. The first part of the essay raises some concerns about the moral legitimacy of written constitutions and of judicial review. The second part strives to elaborate on certain methods of constitutional interpretation in the light of these moral concerns, arguing that constitutional interpretation should be guided by moral reasons and that it ought to be detached from any need to consult the framers' purposes or intentions.


 
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:
    This paper is the first part of a wide-ranging study of the role of intellectual property in the software industry. The project focuses on the software industry because of the importance of that industry to the modern economy, because of the importance of innovation to that industry, and because of the well-known difficulties of accommodating traditional intellectual-property regimes (patent, copyright, and trade secret) to innovation in the industry. This paper focuses on innovation in the hundreds of small venture-backed firms that form the bulk of the population of the industry. After a brief description of the history of the industry in Part II, Part III discusses the evidence on which the paper relies: a set of about 50 interviews of industry executives - diversified geographically, by size of company, and by role in the industry (software developers, venture capitalists, lenders, etc.). Relying on those interviews, the paper provides a detailed explication of the role that intellectual property plays in the industry. Parts IV through VI of the paper organize the information from the interviews and situate it in the extensive literatures on venture capital investing, the economics of innovation, and patents. The first substantive topic of the paper (Part IV) is the features of startup firms that attract investment by venture capitalists - generally something about the startup that suggests a sustainable differentiation of the firm from its competitors. The second substantive part of the paper (Part V) discusses the role of copyright. The major point of this part is that copyright protection is of little value to startup firms. Copyright protection is designed to protect expression, and not functionality. Thus, it provides little of the protection for which venture investors are looking. On the other hand, copyright protection does provide important protections in other areas, most obviously in protecting the later-stage firm's products from piracy. Generally, this part of the paper tells a story of unsuccessful efforts to stretch the copyright regime to do something it never was intended to do. The final substantive part of the paper (Part VI) discusses the role of patents. Because patents do protect functionality, they have at least the theoretical potential to provide the sustainable differentiation for which investors are looking. The problem, however, is that in many sectors of the software industry innovation is not of a character that a typical patent can protect a firm from competitors: often competitors would be able to design a competing product that works around a firm's patent. Thus, despite significant increases in patenting in the industry, about 80% of venture-backed software firms do not obtain patents during the early years of their existence. The question, then, is what benefits patents do provide to those firms. This part explores several benefits, including the classic benefit of excluding competitors. In this industry at least, that benefit accrues primarily to small firms, protecting them from the competitive depredations of incumbents. Incumbents, by contrast, rarely use patents to exclude smaller firms from the industry. The part also discusses a series of less conventional benefits small firms gain from software patents: as barter in cross-licensing arrangements, in signaling their technical competence to third parties, in converting tacit knowledge into a verifiable and transferable form, and in making the firm attractive to potential acquirers. The paper closes by discussing the implications of the patent analysis for recent debates about the value of patents in the software industry. The paper presents evidence about existing practices in the industry suggests that technology in fact is readily available, rebutting the prominent claims of a patent thicket that is supposedly stifling innovation in the industry. On the contrary, I argue, to the extent patents have an important effect in the industry, it is an effect that inures primarily to the benefit of the smaller firms trying to find a foothold from which they can compete.


Wednesday, March 24, 2004
 
Essay Contest: Law & Aesthetics
    LAW & aesthetics Imagine there is something called "Law & Aesthetics" that is studied and taught at law schools. Now, write its encyclopedia entry. There are no restrictions other than those suggested by the title of the encyclopedia entry. As you see fit, your assignment is to invent the history and/or substance of Law & Aesthetics, a discipline that does not presently exist. You are encouraged to: invent or rewrite history in order to accommodate your creative vision. attribute elements of the discipline to historical figures (artists, legal scholars, philosophers, judges, historians, etc.) or invent its participants out of whole cloth. integrate strands of existing theories and realms of inquiry you deem relevant or create something from scratch. chronicle the history and evolution of the discipline; catalog its adherents and critics and their contributions; detail its tenets and research program; summarize the leading books or articles; or all (or none) of the above. be creative. This creative writing contest is open to Boalt Hall Faculty, Students and Staff.* Winning entries will receive appropriate recognition. The author of the best entry will receive $150.00. Entries should be submitted to LawAesthetics@yahoo.com. The text of this announcement is available on request at this email address. Additional information probably will not be provided, however, in order to maintain a level playing field. Entries should be longer than, say, a dictionary entry but probably no more than a thousand or twelve hundred words. The submissions deadline is Wednesday, April 7, 2004. Contest rules may change; however, the cash prize will be awarded if a minimum number of entries are received. *and some others: the contest is open to Boalt Hall students, faculty, and staff; and to their friends, family, and household members; and to the friends of these people.


 
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:
    Proposals abound for the introduction of a national identification system, a computer-based record system in which a unique identifier (a national ID) would be associated with every U.S. citizen and permanent resident. These proposals have also attracted opposition from those who see national ID cards or national identification numbering systems as threats to privacy and liberty. Whatever one's opinion of the merits, it is undeniable that there is a substantial and powerful community which does advocate national ID cards. Here in the US, it seems that we are fated to have a national debate on ID cards if we are lucky; if we're unlucky we'll dispense with the debate and go straight to the cards and the databases.
This is a very important topic, and Froomkin has written a comprehensive analysis! Download it while its hot!


 
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:
    Marriage and its benefits in each state shall be defined by the legislature or the people thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.
Compare this to the text of the Ninth Amendment:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
How would these two provisions interact? Here are some thoughts:
  • The new version of the FMA would forbid federal courts from construing the equal protection clause, the due process clause, or the privileges and immunities clause in such a way as to require that marriage be extended to same sex unions.
  • The Ninth Amendment would prohibit the federal courts from using the fact that these clauses do not create a right to same sex marriage from disparaging such a right, assuming of course that such a right is "retained by the people."
  • But the FMA might be construed so as to apply to the Ninth Amendment itself. That is the FMA might prohibit a construction of the Ninth that would require that marriage be extended to same sex unions.
  • But the Ninth Amendment itself doesn't "require" anything. The Ninth only operates to defeat retained-rights denying or disparaging constructions of the enumerated rights.
  • And just as it might be argued that the FMA would limit the Ninth Amendment, it might also be argued that the Ninth Amendment should operate to limit the FMA. Of course, the FMA would be the after-enacted provision, but this fact does not, by itself, tell us how the two provisions interact. The 14th Amendment Section 5 power was enacted after the 1st Amendment, but no one thinks that that legislatition enacted pursuant to Section 5 can violate the 1st Amendment freedom of speech. (Well, maybe some people think that, but they are wrong.)
I could go on, but you begin to see the point. Two existing constitutional provisions (the Ninth and the Eleventh) act as hermeneutic imperatives--they are explicitly worded as prohibitions on constructions of the Constitution. On the one hand, one might think that this drafting technique has the advantage of being quite narrow and specific. We are only ruling out a particular construction--everything else is left in place. But the lesson of constitutional history is that this prediction is unlikely to come true. Both the Ninth and the Eleventh are notoriously difficulty to read. Interpreters always want to know why the foribidden construction was forbidden, and once the why is on the table, then the purpose that animates the construction forbidding provision itself becomes a principle of constitutional law (in the case of the Eleventh Amendment and constitutional sovereign immunity) or not (in the case of the recent history of the Ninth Amendment). "Nothing . . . shall be construed" or "shall not be construed"--wording like this seems to provoke more questions than it answers.
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 George Mason's Philosophy, Politics and Economics series, Josef Sima, Department of Economic Policy, Prague School of Economics, presents The Logic of Social Action: Austrian Law and Economics.
    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:
    There are two ways of viewing tort law in the debate over reparations for racial crimes. First - and most commonly - tort law is seen as a way of providing relief through courts. So Reparations Talk begins by exploring the requirements for lawsuits for reparations for slavery and for the Jim Crow era. It suggests some instances where lawsuits might be appropriate, such as riots, lynchings, and segregated libraries, and limited cases involving slavery. Tort doctrine also offers, however, a way of framing discussions of moral culpability. Reparations Talk, thus, moves beyond lawsuits to discuss some ways that tort law and unjust enrichment doctrine might be used to think about issues in reparations, such as how should claims by descendants of slaves be evaluated? How do we treat issues of causation across generations? It suggests several damages formulas as starting points for contemplating legislative reparations. Reparations talk concludes that, although it may be difficult to compute the exact amount of harm or to figure out where current generations would be without the crimes of slavery and Jim Crow, that discussion of reparations may benefit from the clarity that contemporary legal doctrine can bring to the subject, even as we struggle to define the precise goals of reparations.


 
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:
    What is the impact of the change to the Convention-method? My argument is that the shift to the Convention-method has significantly strengthened the possibilities for EU institutions such as the European Parliament and Commission to gain influence in comparison to traditional IGC's. This paper submits that the change in the negotiating context and conduct of treaty reform negotiations in the Convention-method opened more opportunities for influence for both the Commission and especially the European Parliament in comparison to IGC's, whereas the central role of the Council Secretariat was downgraded in the present European Convention. Drawing on mainstream negotiation theory and rational choice institutionalism, a leadership model of European integration is put forward that theorizes on the impact of the change in negotiating context and conduct of negotiations for the ability of actor to translate leadership resources into influence. The explanatory power of the model is demonstrated on developments in treaty reform negotiations since 1985. The conclusions point to the necessity for students of treaty reform of opening up the 'black box' of the actual treaty reform process to investigate how the context and conduct of negotiations matter - enabling us to better explain which actors won in a treaty reform negotiation and why.


 
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:
    Both literary scholars and students of copyright law have challenged the "romantic" model of authorship, a model emphasizing individual genius and creation ex nihilo. Authorship, they argue, is actually a collaborative effort. Authors assemble their works from the fragments of their cultural environment, transforming as much as creating. Copyright law, however, still champions the rights of authors and it requires a coherent theory of what authorship is. An alternative to the romantic model of authorship can be found in information theory, a branch of mathematics dealing, at a very fundamental level, with all forms of communication. Authorship could be defined simply as the unconstrained selection of one means of expression from an array of alternative means - a definition mirroring how information theorists quantify the information content encoded in a message. That conception of authorship, already suggested by existing parallels between information theory and copyright's doctrine of "merger," answers some of the criticism directed at the romantic model, namely its overemphasis on the inspired, meaning-defining, solitary author/genius. On the other hand, this "un-romantic" model would suggest that a broad array of texts qualify as copyrightable works of authorship, including some in which the means of expression are selected by random or mechanical processes.


 
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:
    Interest in the use of mediation to resolve probate disputes has been growing. As part of the larger trend in American courts to encourage alternative dispute resolution ("ADR"), and following the successful adoption of mediation to resolve divorce and other family disputes, there now exist a number of court-sponsored mediation programs designed to encourage the mediation of probate disputes. Moreover, many jurisdictions are considering adopting their own programs designed to encourage mediation of such disputes. Despite this trend, the use of mediation for resolving probate disputes has lagged far behind its use in other family matters. Many jurisdictions provide little or no formal opportunity for probate dispute mediation. Even where mediation is offered, judges and practitioners are often skeptical of its value in the realm of trusts and estates. Indeed, mediators themselves note that probate disputes are some of the most difficult to mediate. The following are some of the suggested impediments to the widespread adoption of mediation to resolve probate disputes: 1. Courts are not providing sufficient encouragement; 2. Probate disputes are relatively rare - particularly in comparison to divorce - and, therefore, it is not efficient to establish mediation programs specifically geared towards such disputes; 3. The number of qualified mediators with a good understanding of probate law is insufficient to handle probate disputes; 4. Estate planners already act as informal mediators in probate disputes and resolve many of the resolvable cases. If litigation is threatened, it is because the dispute is unlikely to be susceptible to successful mediation; 5. The probate bar lacks familiarity with mediation and is reluctant to embrace it; 6. The parties are unwilling to bear the costs of mediation; 7. In many probate disputes, at least one party's litigation expenses may be borne by the trust or the estate thereby reducing that party's incentive to settle; 8. The emotional nature of probate disputes makes the parties unwilling to settle through mediation; and 9. Probate disputes are difficult to mediate because the person whose views are most relevant, namely the testator in a will or the settlor of a trust, is dead and not able to participate in the mediation. In some jurisdictions, courts have attempted to address these concerns directly. For example, to overcome reluctance by the parties to use mediation, some judges require that all disputes go to mediation before they can proceed in court. To reduce the costs of mediation, some court-sponsored programs use volunteer mediators or fund the cost of mediation directly. Finally, to fill the perceived need for mediators who understand the substantive law of wills and trusts, some programs provide mediation training for lawyers practicing in the wills and trusts area, and others provide probate law training to experienced mediators. This Article examines six court-sponsored programs designed to encourage the use of mediation to resolve probate disputes in five jurisdictions: Texas, Florida, Georgia, California (Los Angeles and San Francisco), and Hawaii. Some of the programs are part of larger state-run programs designed to encourage the mediation of a variety of disputes, but all were studied in terms of their specific application to probate disputes. In discussing each of the programs, this Article focuses on the extent to which courts and practitioners either have addressed or proven false the suggested impediments to the use of mediation in resolving probate disputes. Part II of this Article provides a general description of mediation. It discusses the role of mediation in our current dispute resolution system and describes the mediation process. Part III then describes the six court-sponsored programs designed to encourage the use of mediation in probate disputes and offers attorney feedback with respect to each program. Finally, Part IV examines common issues that arise in developing court-sponsored programs designed to encourage the use of mediation in probate disputes.


Tuesday, March 23, 2004
 
Blogging from Cardozo: Session Four on Reform
    Dellinger The first speaker is Prof. Walter Dellinger, Duke Law School; O’Melveny & Myers LLP, and one of the great American legal academics. His paper is entitled The Judicial Appointments Breakdown – Is There a Solution? Dellinger believes that the process is in terrible trouble. Everyone understands that the opposition can block a certain number of nominees, but not all. A nominee may be rejected if the nominee is “outside the mainstream.” Dellinger would prefer complete deference to the status quo. Dellinger thinks that the current system encourages mediocrity or stealth candidates. Some of the best Bush nominees, i.e. Michael McConnell, were held up. Dellinger proposes that the Senate Democrats should meet at a retreat and come up with a list that the President should add to his list. If the Senate had come up with a list of 15 distinguished additions and the President had rejected them all, then the only reason for the President’s behavior would be a strict ideological test. Why would the President agree? Because the President would get more nominees confirmed!
    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 and Fisk First up are my dear friends Erwin Chemerinsky and Catherine Fisk (currently USC, but Duke next year). Their talk is entitled Filibustering Judicial Nominations. Fisk states their thesis: filibusters are a desirable feature of the nomination process. Moreover, she argues, that filibusters of the confirmation process has precedent—both in the filibuster of Abe Fortas and more generally in opposition to nonjudicial nominees.
    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. Michael Gerhardt, College of William & Mary School of Law, The Quest for the Best and the Middle: Forging Consensus on Criteria for Judicial Selection
    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
Prof. Dawn Johnsen, Indiana University School of Law, provided very helpful comments and Prof. Kyron Huigens, Benjamin N. Cardozo School of Law moderated the session.
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
    Today at Cardozo, there is a conference entitled Reconsidering the Federal Appointments Process. 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. I will be on the program at 10:15 a.m. See you there! My paper is entitled Judicial Selection: Ideology versus Character (comments welcome!).
    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:
    This paper is part of a forthcoming symposium that focuses on human embryonic stem cell research, and it responds to the lead paper by Ann Kiessling that urges the use of a more precise scientific definition of the term embryo to include only fertilized ova after implantation in the uterus, which would exclude the conceptus in vitro as well as the products of parthenogenesis and somatic cell nuclear transfer. Although agreeing with her about the desirability of promoting stem cell research, this paper quibbles with Kiessling's account of inconsistencies in definitions of the term embryo found in dictionaries, state statutes, judicial opinions, and advisory panel reports, and it emphasizes the extent to which the question turns on political rather than scientific factors. The paper explains that the federal government uses a definition directly at odds with the one Kiessling recommends, and it criticizes the extent to which the Bush administration has further politicized the issue, but the paper ultimately challenges the premise that semantic games can help to circumvent this debate.


 
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:
    Customary international law is an enigma. It is produced by the decentralized actions of states, and it generally lacks centralized enforcement mechanisms. Political science realists and some rationalist legal scholars argue that customary international law cannot affect state behavior: that it is "epiphenomenal." This article develops a model of an n-player prisoner's dilemma in the customary international law context that shows that it is plausible that states would comply with customary international law under certain circumstances. These circumstances relate to: (i) the relative value of cooperation versus defection, (ii) the number of states effectively involved, (iii) the extent to which increasing the number of states involved increases the value of cooperation or the detriments of defection, including whether the particular issue has characteristics of a commons problem, a public good, or a network, (iv) the information available to the states involved regarding compliance and defection, (v) the relative patience of states in valuing the benefits of long-term cooperation compared to short-term defection, (vi) the expected duration of interaction, (vii) the frequency of interaction, and (viii) whether there are also bilateral relationships or other multilateral relationships between the involved states. One implication of this model is to lend credence to customary international law. From a research standpoint, this model identifies a number of parameters for which data may be developed in order to test the model. From a policy standpoint, this model shows what types of contexts, including malleable institutional features, may affect the ability of states to reach stable and efficient equilibria in their customary international law relations.


 
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:
    This paper takes a critical look at German criminal law theory from an Anglo-American perspective. It seeks both to capture the basic conception of criminal law as science that has shaped the project of German criminal law theory for centuries and to investigate two of its key features: its theory of punishment ("positive general prevention") and its theory of criminalization (the theory of "legal goods").


 
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:
    Daubert v. Merrell Dow has deeply affected how courts evaluate testimony by putative experts of all kinds in a variety of legal contexts. But the influence of Daubert on the role of expert economic testimony in antitrust cases has been less clear. Several commentators have noted that, although Daubert motions do occur regularly in antitrust cases, courts also continue to scrutinize the legal sufficiency of expert testimony without reference to Daubert in motions for summary judgment or for judgment as a matter of law. In this article, we argue that, whatever the doctrinal rubric or procedural context in which courts examine economic testimony in antitrust cases, their inquiry is ultimately guided by economic authority, authoritative economic knowledge that courts have adopted from the scholarly literature. In interpreting and applying the antitrust laws, courts acquire their most important economic ideas by a pragmatic process that is independent of the strictures that Daubert places on the receipt of economic testimony. Once acquired, economic authority determines the qualifications trial experts must have, the issues on which they can testify, the models on which they can rely, and the methodologies they must use. In the past thirty years, the most important source of economic authority has been the Chicago School's models of the practices that most concern antitrust: cartels, tying, predatory pricing, resale price maintenance, and so forth. The Supreme Court has relied on these models not, for the most part, to adopt rules of per se legality, as some Chicagoans have suggested, but in less sweeping ways, such as limiting or abandoning rules of per se illegality, defining antitrust injury and standing, and determining the sufficiency of evidence. In some notable examples, of course, the Court has declined to follow Chicago models in favor of others. In all of these contexts, however, economic authority frames and defines the role of expert testimony. In the main part of the article, we examine how economic authority has defined the role of expertise in four critical contexts: predatory pricing; market definition and market power; the characterization and proof of price fixing; and the definition and proof of antitrust injury. In the final section we consider the legitimacy of the deference to economic authority over expertise in the formation of antitrust law, and suggest how our account of the role of economic authority affects the continuing confrontation between Chicago and Post-Chicago economics.


 
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:
    This paper offers a critical overview of several issues arising from the Convention's draft Treaty Establishing a Constitution for Europe, relevant to readers with a general interest in EU legal developments: rationalisation of the Union's constitutional architecture; the protection of fundamental rights; Union competences; reform of legal instruments; changes to the enhanced cooperation provisions; and ratification/amendment of the future Constitution. It is argued that the draft Constitution, despite its many successes, suffers from several legal shortcomings, for example: the unhelpful provisions on the legal effects of rights and principles within the Charter; an early warning system on subsidiarity which suffers from serious operational flaws; the inaccurate provisions on exclusive competence, particularly as regards competition law and external relations; the messy dividing line between shared and supporting competences; and a new hierarchy of norms which appears confused in its basic concepts, and confusing in the arrangements for supervising non-legislative acts. Despite M. Giscard d'Estaing's pleas for the Member States to respect the integrity of the text agreed by the Convention, one hopes that the IGC will revisit at least these provisions - since they might otherwise undermine the workability of the final Constitution by creating new and unnecessary problems for the future.


 
Conference Announcement: High Tech IP Issues in a Global Marketplace
    The World Intellectual Property Organization (WIPO) and the Stanford Program in Law, Science & Technology (LST) present: WIPO Comes to Silicon Valley High Tech IP Issues in a Global Marketplace May 17 and 18, 2004 Stanford Law School For the first time ever, the World Intellectual Property Organization and the Stanford Program in Law, Science & Technology have joined forces to bring to the fore issues relating to intellectual property and its growing importance in today's technology and knowledge driven economies. The conference entitled "WIPO Comes to Silicon Valley - High Tech IP Issues in a Global Marketplace" will take place on May 17 and 18, 2004 on Stanford University campus. The program will address timely issues relating to intellectual property including the international patent and trademark systems that WIPO runs, WIPO's alternative dispute resolution services, and WIPO's work relating to patent law harmonization. Domain names, software, and biotechnology patents, protection of genetic resources, and the link between public health and intellectual property are among the session topics. The event will bring together major players from Silicon Valley's high technology industries and venture capital community, patent and trademark practitioners, academics, and members of the public. Registration will open in the first week of April. Please check our website at for a link to the conference registration. Roland Vogl, Esq. Executive Director and Lecturer in Law Program in Law, Science & Technology lst.stanford.edu rvogl@law.stanford.edu


Sunday, March 21, 2004
 
Legal Theory Calendar
    Monday, March 22
      Today at Cardozo, there is a conference entitled Reconsidering the Federal Appointments Process. 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. I will be on the program at 10:15 a.m. See you there! My paper is entitled Judicial Selection: Ideology versus Character (comments welcome!).
      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.
    Wednesday, March 24
      At George Mason's Philosophy, Politics and Economics series, Josef Sima, Department of Economic Policy, Prague School of Economics, presents The Logic of Social Action: Austrian Law and Economics.
      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.
    Thursday, March 25
      At Michigan's Olin Seires, Kristin Madison, Pennsylvania, presents The Residency Match: Competitive Restraints in an Imperfect World.
      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.
    Friday, March 26
      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 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
    Introduction Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.
    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
      Rawls on the Concept and Conceptions of Justice Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.
      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.
    Conclusion The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.
    References
    • Ronald Dworkin, Law's Empire (Harvard University Press 1988).
    • W. B. Gallie, " Essentially Contested Concepts," 56 Proceedings of the Aristotelian Society 167 (1956).
    • John Ralws, A Theory of Justice ((Revised edition, Cambridge, Massachusetts: Belknap Press, 1999).
For a complete collection of Legal Theory Lexicon posts, surf here.


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:
    This essay, written for a symposium in honor of Frank Michelman, explores Michelman's most recent views on constitutional legitimacy. The legitimacy of a constitutional/governmental system is less than full justice and more than mere legal validity. Legitimacy means that the constitutional/governmental system is sufficiently worthy of respect that members of the political community can accept its power to coerce obedience to law and enjoy the goods of political union. The Constitution is not legitimate because it is a contract for legitimacy, because it contains a certain fixed substantive content, or because a certain group of people agreed to it long ago. It is legitimate to the extent that the members of the political community, each interpreting its meaning and its content in his or her own way, can reasonably assent to it and give it their respect. This account of legitimacy, nevertheless, is incomplete in three respects. First, because the constitutional/legal system will change, judgments of legitimacy must be grounded in faith about the future as well as in beliefs about the current content of the constitutional/legal system. Second, for the same reason, judgments of legitimacy require that members of the political community be able to see themselves as part of a political project that extends over time, working toward a goal that is worth striving for even if it is not yet completely achieved. Third, the legitimacy of the system requires that there be some method of feedback - whether formal or informal - through which members of the political community can challenge dominant understandings of the constitutional/legal system that they believe to be mistaken. In terms of the American constitutional system, with its practice of judicial review, there must be formal and informal methods through which dissenting constitutional interpreters can shape, influence, and affect official interpretations of the Constitution. Although some scholars have argued that the legitimacy of the American system depends on the judiciary having the final word on the meaning of the Constitution, in fact the opposite is the case: Constitutional legitimacy ultimately depends on disagreements about constitutional meanings, and a protestant approach to constitutional interpretation.
Download it while its hot!


 
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:
    A few days ago this article appeared in the New York Times about the problem of girl scouts selling cookies on eBay. The girl scout rules forbid this, in order to promote "the activity" of selling to the public. I see their point. Unfortunately, market forces are tearing the rule apart. In some areas, there's a surplus of supply because of high scout concentrations. In other areas, you can't get ahold of the cookies to save your life. It doesn't take Milton Friedman to see what's going to happen - the scouts use loopholes to circumvent the restriction. The most popular way, it seems, is to auction off cookie order forms. However, I'd advise the method often used with Southwest Airlines' rapid rewards tickets (which also have a restriction on alienability) - people sell "one free alcoholic beverage" tickets for about $180, with the "bonus" gift of a rapid rewards ticket. It seems the difference is whether something is purchased or given, but clearly the distinction is spurious in practice. This situation reminds me of the general principle in property law against restrictions on alienability.
Surf on over to read the whole thing!


 
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:
    In a decision released yesterday, the FCC announced a new doctrine of fining "profane" broadcasts. Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression. Could the FCC be getting into the business of regulating hate speech?
But you want to read the whole post!


 
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 the University of San Diego, the Institute for Law and Philosophy is hosting the Roundtable on Criminal Responsibility. This should be a very fine event, and I am looking forward to some very stimulating discussions. The list of participants includes:
      Larry Alexander--University of San Diego Richard Arneson--University of California at San Diego Mitchell Berman--University of Texas David Brink--University of California at San Diego John Fischer--University of California at Riverside Heidi Hurd--University of Illinois Douglas Husak--Rutgers Michael Moore--University of Illinois Stephen Morse--University of Pennsylvania Dana Nelkin--University of California at San Diego Sam Rickless--University of California at San Diego Connie Rosati--University of California at Davis, Visiting University of San Diego Maimon Schwarzschild--University of San Diego Kadri Vihvelin--University of Southern California Gideon Yaffe--University of Southern California Matt Zwolinski--University of San Diego
    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.


 
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:
    The conventional wisdom about jurisdiction is based on a false premise - that the true concept of jurisidiction is distinct from the true concept of the merits. According to this wisdom, if a judge is smart enough and searches hard enough, he or she can always distinguish issues that are jurisdictional from issues that go only to the merits. By the same token, this wisdom holds that every legal issue is either jurisdictional or non-jurisdictional. This paper argues that the conventional wisdom is wrong - that there can be no hard conceptual difference between jurisdiction and the merits. The line between jurisdictional issues and merits issues is always at some level arbitrary. Furthermore, the conventional wisdom is dangerous because it indoctrinates judges to think that the only issue is whether they can exercise their ability to do justice rather than whether they should exercise that ability.
And here are some comments:
    Lee's basic strategy is to argue that the "essence" of jurisdiction is either de facto power or legitimate authority. Lee is quite right to argue that the contemporary concept of jurisdiction is not reducible to raw power. After all, in a post-Pennoyer world, states can assert personal jurisdiction on the basis of minimum contacts even when the defendant is outside the territory of the state. Lee then argues that the concept of legitimate authority is much broader than the concept of jurisdiction, and he is right about this too. The legitimate authority of an adjudicatory proceeding depends on much more than jurisdiction; most obviously, procedural legitimacy requires a right of participation. But this only goes to show that the concept of jurisdiction is reducible to neither de facto power nor legitimate authority, although it is related to both of these concepts. Indeed, there is no single concept of jurisdiction, as subject-matter jurisdiction and territorial (or pesonal) jurisdiction are conceptually quite distinct. At a general and abstract level, jurisdiction is based on the concept of authorization. A tribunal has jurisdiction to take an action just in case there is a legal norm (a secondary rule in H.L.A. Hart's sense) which authorizes that action. Hence, subject-matter jurisdiction is conferred on the federal by jurisdictional provisions in the constitution and by jurisdictional statutes. These secondary rules authorizes the federal courts to take cognizance of cases on the basis of certain characteristics, i.e. "diversity of citizenship" or "a federal question." When Lee asks for an "essence" of jurisdiction that is something more than this, he is simply asking the wrong question. "Essence" is a tricky concept, but when Lee is looking for a metaphysical essence for jurisdiction, he is barking up the wrong tree. Jurisdiction is legal through and through; it certainly isn't a natural kind like water or gold. Subject-matter jurisdiction and personal jurisdiction are both threshold issues, which do go to the power of the tribunal (to hear the case or to compel the defendant to appear at the risk of a binding default judgment), and without jurisdiction, the tribunal does lack legitimate authority. But power and legitimacy are consequences of jurisdiction, not criteria for its application. If a court lacks jurisdiciton, then it lacks power and legitimacy, but not vice vesa.
    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.
Download it while its hot!


 
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:
    This article explores the relationship between the proposed Uniform Computer Information Act (UCITA) and copyright law, focusing on flaws in the respective legislative processes. UCITA's transactional framework conflicts with traditional copyright rules and policies, but accords with recent paracopyright laws like the Digital Millenium Copyright Act which favor the interests of information providers over those of information users. While some commentators have suggested that traditional copyright law may serve as a consumer protection statute overriding onerous information licensing practices, copyright is not well-suited to such a task since it is subject to the same interest group pressures that produced UCITA. The article applies basic principles of interest group theory to the legislative processes producing copyright law and uniform laws and suggests that the drafting processes for both sets of laws should be reformed to provide better representation for public interest groups, particularly those representing consumers. Moreover, the two processes ought to be coordinated to produce a coherent national information policy that can be consistently implemented through contractual default rules governing particular transactions. Such reform might help future proposals avoid the controversy which has brought UCITA to a halt in state legislatures.


 
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:
    News media outlets (newspapers, radio and television broadcasts and websites) have finite capacities. Newspapers have practical limits to the number of articles that can be printed each day. Radio and television broadcasters can fit only so many stories into a 30 minute newscast, and news websites must select which stories fit on their homepages. The genesis of this paper was the anecdotal observation that major English-language news media outlets devote more attention to some countries than to others. This is to be expected: in a given week, some countries will experience newsworthy events like wars, natural disasters, scientific discoveries, economic collapses, sports championships, while others will not. But it is equally clear, on an anecdotal basis, that some countries get far more attention on a consistent basis, without regard to the relative frequency or magnitude of newsworthy events. How do newspapers, newscasts and website divide their attention between regions of the world? To which countries do they devote the most attention? Why do some countries get more attention than others? Do factors like a country's population and the size of its economy predict which countries will command the most attention from media channels? This paper begins to answer some of these questions with repeatable, transparent statistical tools. It introduces the Global Attention Profile (GAP) as a portrait of a news media outlet's attention to various nations. GAP software automatically crawls a news media outlet's website and calculates country-by-country story counts over a period of time. This paper reports these story counts and correlates them to a wide range of country data sets provided by the World Bank. GAP research demonstrates that the most accurate predictor of a media outlet's attention is the size of a nation's gross domestic product. This correlation is significantly greater than the correlation between media attention and the size of a nation's population, and appears to be the strongest correlation between media attention and 21 factors examined. Generally speaking, violent conflict seems to have less effect on media attention than the size of a nation's economy does. While most media sources studied demonstrate similar patterns, one media outlet - the BBC News - shows radically different patterns. The BBC's media attention is more closely correlated to the size of a nation's population than to the size of its economy.


 
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:
    While in Europe legal problems related to information quality have been primarily of academic interest, a publicly recognized debate on information quality, which is also relevant for legal practice, has emerged in the United States. The origin of this discussion was the enactment of section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001, better known as the Federal Data Quality Act, and its implementing Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, issued by the Office of Management and Budget (OMB). In essence, the Act and OMB Guidelines are intended to ensure and maximize the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies. Agencies, in turn, were required to issue their own implementing guidelines by October 1, 2002. This essay seeks to provide, first, a brief overview over the genesis and content of the Federal Data Quality Act and the implementing OMB Guidelines. Second, against this background, the article examines this set of rules and regulations from the viewpoint of what - at least in the European context - is termed information law. It may be of interest to compare the U.S.'s attempt at a functional and open regulation of information quality by law with earlier contributions of European theorists to this area of law.


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:
    A Horizontal Leap Forward: Formulating a Layered Policy Approach to Internet Protocol with Richard S. Whitt (Senior Director, Global Policy and Planning, MCI and Author, A Horizontal Leap Forward: Formulating A New Public Policy Framework Based On The Network Layers Model).
      U.S. policymakers face a virtual conundrum: how to best incorporate the new Internet Protocol (IP)-centric services, applications, and facilities into the nation's pre-existing legal and public policy construct. Over the next several years, legislators and regulators will find themselves increasingly challenged to make the Internet adapt itself to the already well-defined bricks-and-mortar, services-and-technologies environment that exists today under the Communications Act and other statues. In this paper and in his presentation, Richard Whitt will explain that trying to impose the current outmoded legal system onto the Internet and all its IP progeny is flawed, damaging, and ultimately doomed approach. Instead, policy makers should adopt a new public policy framework that regulates along horizontal network layers, rather than legacy vertical silos.
    Event Details
      Thursday 12:15pm-1:45pm March 18, 2004 Location New America Foundation 1630 Connecticut Ave, 7th Floor Washington , DC 20009 Format: Brownbag Lunch Event Registration: RSVP to Jennifer Buntman at 202-986-4901 or to buntman@newamerica.net
Minn Chung and I have written a paper that deals with the implications of layered internet architecture for regulatiton of the Internet: The Layers Principle: Internet Architecture and the Law. If anyone attends the talk and/or can provide a copy of the paper, I would be most appreciative.


 
Thursday Workshops
    Seyla Benhabib's Tanner Lectures conclude today at U.C. Berkeley.
    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:
    ICANN's experimentation in running a representative and open corporate decision-making process to manage the domain name system has largely failed. This failure has manifested itself most explicitly by ICANN's retreat from its effort to enable the direct election of a subset of its Board members and, less explicitly, by the extent to which other efforts to engage the Internet user community in the decision-making process have proven ineffective. A systematic review of over 100,000 comments by public participants in ICANN, other inputs that the Board considered, and the Election of 2000 for five ICANN Board members, reveal that ICANN has never fully succeeded in integrating users into the governance model in other than an ad-hoc fashion. Instead, the Board appears largely to have based its decisions upon the recommendations of professional staff and of the powerful Supporting Organizations (SOs), in which users can participate. An Internet user approaching the ICANN process from the outside would have little way to determine how to participate meaningfully in the decision-making process. Three lessons emerge from this study. First, ICANN's failure shines further light upon the need for an overhaul of its governance structure. Second, ICANN should clarify the way in which users can involve themselves in the decision-making process for managing the domain name system, arguably through the Supporting Organization process. Third, we should look beyond the ICANN model, which has never been the appropriate venue for experimentation in global decision-making, toward new ways to govern the technical architecture of the Internet in an increasingly networked, less clearly bordered world.


 
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:
    While selection effects have important implications for empirical studies of the litigation process, existing theories of case selection are incomplete. Existing theories focus on "ex post selection" - selection resulting from choices made by parties after a dispute arises, such as by settlement or jury trial demands. But parties also engage in "ex ante selection" - selection resulting from choices made before a dispute arises. A common form of ex ante selection occurs when parties include a pre-dispute arbitration clause in their contract, agreeing to have future disputes resolved in arbitration rather than in court. This paper develops a theory of ex ante selection of disputes for litigation, and examines implications of the theory for empirical studies of litigation. Studies comparing outcomes in arbitration and litigation provide evidence that ex ante selection occurs. This paper argues that the effects of ex ante selection are not limited to such studies, but also may affect studies that examine only the litigation process. The central intuition is that the disputes for which litigation is most likely to be problematic (and thus of interest to researchers) are the very disputes most likely to end up in arbitration. When parties expect litigation to be costly or damage awards excessive, they have an incentive to provide for arbitration to resolve future disputes. Such ex ante selection may mask characteristics of the litigation process that empirical studies are seeking to examine.


 
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:
    This paper critically analyzes the possibility and structure of First Amendment defenses to actions, both private and public, arising out of sexual misconduct by members of the clergy. Part I traces the expansion of relevant theories of tort and criminal liability, and the waning of immunities, constitutional and statutory, that once applied to such actions. Part II of the paper advances a normative theory of the constitutional distinctiveness of religion, and ties that theory to the possibility of ecclesiastical immunity. Most conceptions of such immunity represent assertions of the liberty of religious organizations, and are grounded in the Constitution's Free Exercise Clause. Our approach, however, is grounded in the Establishment Clause, and proceeds from a vision of jurisdictional limits on civil government. Part III of the paper then brings the lessons of Part II to bear on the particular problems of sexual abuse by clergy, and the criminal and civil liability of secondary actors and enterprises for such misconduct. Woven into the fabric of Part III are three major themes. First, those who perpetrate sexual harms against children, or against others who lack capacity to consent, have no claim of ecclesiastical immunity. Second, the religious status of persons, and the religious character of institutions should not give rise to fiduciary duties as a matter of law. The judicial creation of such duties violates the constitutional prohibition on discrimination against religion as compared with its secular counterparts. Third, adjudication of wrongful acts in the hiring and supervision of clergy must be conducted with sensitivity to constitutional concerns of both substance and process. Borrowing from the law concerning First Amendment limitations on the tort liability of the press, we argue that liability of supervising institutions should be limited to cases involving an "intentional failure to supervise," and that processes of adjudication should be tailored to maintain compliance with that standard.


 
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:
    We hypothesize that insiders strategically choose disclosure policies and the timing of their equity trades to maximize trading profits. We find that managers provide more good news forecasts in periods when they sell more and buy fewer shares. Managers also increase the number of bad news forecasts when they purchase more and sell less equity. These relations are stronger for trades of the chief executive officer than for other executives. Consistent with Noe (1999), we also find that managers are successful in timing their trades both before and after management forecasts depending on whether the news is good or bad.


 
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:
    This Comment expands upon Clayton Gillette's defense of Article 8(2) of the Convention on the International Sale of Goods (CISG), which directs tribunals to incorporate international trade usage into private contracts governed by the Convention, unless the parties agree otherwise. The Comment attempts to offer a more robust and systematic account of when substantive interpretative doctrines such as trade usage might be desirable, as well as why such doctrines appear to be especially useful in the transnational setting of the CISG. It argues that Gillette's account is incomplete because he does not provide an explanation of why international tribunals have been more restrained than US domestic courts in their use of trade usage, and because he focuses primarily on the costs of interpretative uncertainty to the exclusion of a fuller list of costs and benefits relevant to the choice of interpretative regime. Taking this fuller list of considerations into account renders the widespread use of trade usage and similar contextual standards in the transnational setting more comprehensible, and reinforces Gillette's conclusions regarding trade usage's commercial functionality.


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:
    One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Logically, the DNS is organized into Top Level Domains (such as .com), Second Level Domains (such as amazon.com), and third, fourth, and higher level domains (such as www.amazon.com). The physically infrastructure of the DNS consists of name servers, including the Root Server System which provides the information that directs name queries for each Top Level Domain to the appropriate server. ICANN is responsible for the allocation of the root and the creation or reallocation of Top Level Domains. The Root Server System and associated name space are scarce resources in the economic sense. The root servers have a finite capacity and expansion of the system is costly. The name space is scarce, because each string (or set of characters) can only be allocated to one Registry (or operator of a Top Level Domain). In addition, name service is not a public good in the economic sense, because it is possible to exclude strings from the DNS and because the allocation of a string to one firm results in the inability of other firms to use that name string. From the economic perspective, therefore, the question arises: what is the most efficient method for allocating the root resource? There are only five basic options available for allocation of the root. (1) a static root, equivalent to a decision to waste the currently unallocated capacity; (2) public interest hearings (or beauty contests); (3) lotteries; (4) a queuing mechanism; or (5) an auction. The fundamental economic question about the Domain Name System is which of these provides the most efficient mechanism for allocating the root resource? This resource allocation problem is analogous to problems raised in the telecommunications sector, where the Federal Communications Commission has a long history of attempting to allocate broadcast spectrum and the telephone number space. This experience reveals that a case-by-case allocation on the basis of ad hoc judgments about the public interest is doomed to failure, and that auctions (as opposed to lotteries or queues) provide the best mechanism for insuring that such public-trust resources find their highest and best use. Based on the telecommunications experience, the best method for ICANN to allocate new Top Level Domains would be to conduct an auction. Many auction designs are possible. One proposal is to auction a fixed number of new Top Level Domain slots each year. This proposal would both expand the root resource at a reasonable pace and insure that the slots went to their highest and best use. Public interest Top Level Domains could be allocated by another mechanism such as a lottery and their costs to ICANN could be subsidized by the proceeds of the auction.
As always, comments are very much appreciated. If you email me, I will forward your comments to my coauthor Karl Manheim.


 
Wednesday Workshops
    At the University of Manchester's philosophy series, Christina Howells (Oxford) presents Mortal Subjects.
    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:
    This essay, written for a symposium in honor of Frank Michelman, explores Michelman's most recent views on constitutional legitimacy. The legitimacy of a constitutional/governmental system is less than full justice and more than mere legal validity. Legitimacy means that the constitutional/governmental system is sufficiently worthy of respect that members of the political community can accept its power to coerce obedience to law and enjoy the goods of political union. The Constitution is not legitimate because it is a contract for legitimacy, because it contains a certain fixed substantive content, or because a certain group of people agreed to it long ago. It is legitimate to the extent that the members of the political community, each interpreting its meaning and its content in his or her own way, can reasonably assent to it and give it their respect. This account of legitimacy, nevertheless, is incomplete in three respects. First, because the constitutional/legal system will change, judgments of legitimacy must be grounded in faith about the future as well as in beliefs about the current content of the constitutional/legal system. Second, for the same reason, judgments of legitimacy require that members of the political community be able to see themselves as part of a political project that extends over time, working toward a goal that is worth striving for even if it is not yet completely achieved. Third, the legitimacy of the system requires that there be some method of feedback - whether formal or informal - through which members of the political community can challenge dominant understandings of the constitutional/legal system that they believe to be mistaken. In terms of the American constitutional system, with its practice of judicial review, there must be formal and informal methods through which dissenting constitutional interpreters can shape, influence, and affect official interpretations of the Constitution. Although some scholars have argued that the legitimacy of the American system depends on the judiciary having the final word on the meaning of the Constitution, in fact the opposite is the case: Constitutional legitimacy ultimately depends on disagreements about constitutional meanings, and a protestant approach to constitutional interpretation.
I always read Balkin!


 
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:
    Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. In interpreting the Free Exercise clause the United States Supreme Court has argued that in the absence of discrimination against religion or in the presence of other constitutional values, there is no violation of the Constitution when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in contending that an equality emphasis misses much of importance in religion clause jurisprudence, but their emphasis on liberty or equal liberty is too narrow. Instead, he suggests an understanding of the proper place of equality in religion clause jurisprudence requires an appreciation of a wider range of values. Professor Shiffrin recognizes that the equality value is important, but shows that many deviations from religious equality are deeply embedded in the framework of government operations. It will not work to maintain that our Constitution regards religion and non-religion as equal. Indeed, the religion clauses are best interpreted to protect religion not just because of values like autonomy, equality, community, and religious peace, but because religion is regarded as important. This, he suggests, is a regrettable interpretation. It obviously is a bitter pill for religious skeptics to swallow, and it should even be a source of regret for most religious believers. Nonetheless, it is the best reading of our evolving Constitution. The foundational view that religion is important, however, does not flirt with theocracy. Far from it. The Constitution forbids coercion and, with exceptions, the favoring of one religion over another. Even more important, with some exceptions, the Constitution is best interpreted to curb government intervention to favor religion, not because religion is a constitutional stepchild, but because the seductions of governmental dependence are great and because government is not to be trusted. In applying his analysis, Professor Shiffrin explores many examples including (1) the ingestion of peyote; (2) animal sacrifice; (3) the government's use of religious symbols; (4) government's involvement with monotheistic prayer, including the Pledge of Allegiance; (5) the teaching of evolution in the public schools; (6) government protection of conscientious objectors and those who refuse to work on the Sabbath; and (7) voucher programs together with government support for religion within the public schools. Given the pluralistic character of the values underlying the religion clauses and the variety of contexts in which questions about the legal status of religion arise, he concludes, that equality can best be seen as one important value in a rich and evolving tradition. This tradition, he argues, is misunderstood by both the secular left and the religious right. The secular left does not understand the importance of religion in our constitutional tradition, and the religious right does not understand that government harms religion when it tries to help. Neither the secular left, nor the religious right understands the complex dimensions of religious equality.


 
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:
    Long before the enactment of the first corporate reorganization statutes in the 1930s, the federal courts developed a method of reorganizing financially distressed corporations, especially railroads, within the existing architecture of the equity receivership. From 1850 to 1932 these receiverships were the only form of relief available to financially distressed railroads, as they were prohibited from liquidating or filing under the Bankruptcy Act. Several leading scholars have begun to ask if railroad receiverships might hold important insights into the issue of sovereign debt restructuring, or at least inform the analysis. This paper takes a closer look at the analogy between railroads and countries to see if it holds beyond its superficial appeal. In particular, I examine how railroad receiverships addressed the problems of holdouts and individual creditor action, the key stumbling blocks for most of today's approaches to sovereign debt restructuring. I conclude that receiverships overcame these problems in ways that could be useful with respect to today's sovereign borrowers, although the utility of receiverships should not be overstated. Plainly there are historical lessons awaiting application, but I argue that only selective and considered reference to the early days of corporate bankruptcy will translate into meaningful improvement of sovereign debt restructuring.


 
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:
    This Article takes a fresh look at the misalignment of interests between class attorneys and their clients. Specifically, it examines the class attorneys' opportunity for shirking and for striking collusive settlements with corporate defendants. Both case law and scholarly writings offer numerous solutions to this misalignment of interests; yet, those solutions suffer from serious flaws. Professors Harel and Stein examine the reasons for that failure and propose a new solution that overcomes the class action agency problem. They argue that the law should resolve this problem by choosing between two basic paradigms of class action lawyering: Attorney-as-Owner and Attorney-as-Servant (Ownership and Servantship). The Ownership paradigm seeks to align the attorney's and the claimants' interests by giving the attorney a proprietary right in the action (usually, through a contingent-fee arrangement). The Servantship paradigm attains this alignment through the attorney's supervision and monitoring, coupled with penalties for inadequate performance. Professors Harel and Stein analyze these paradigms by rigorously identifying the attorney's "conflict-of-interests differential" and by juxtaposing the two paradigmatic attempts to bring this differential down to zero. Subsequently, they develop a new competition-based mechanism that operates under the Servantship paradigm and aligns the interests of class attorneys and their clients.


 
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:
    Procedural criminal law is heavily constitutionalized, whereas substantive criminal law has largely escaped constitutional scrutiny. In this article, Professor Markus Dubber lays out a framework for the development of a general constitutional law of crime and punishment, with a particular emphasis on the general and special part of substantive criminal law. Constitutional criminal law, Dubber argues, rests on the concept of respect for the autonomy and dignity of persons that is reflected in such constitutional guarantees as the right to due process and the proscription against cruel and unusual punishments.


Tuesday, March 16, 2004
 
Tuesday Workshops
    At the University of Pennsylvania's philosophy series, G.A. Cohen (All Souls College, University of Oxford) presents Saving Justice from Constructivism.
    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:
    The Motion Picture Association of America and its content affiliates would like all consumer electronics and information technology companies to innovate according to the rules - ensuring that Hollywood's movies are specially protected from unauthorized redistribution through adherence to a broadcast flag scheme (proposed to be implemented by the FCC) and through anticipated legislation that will require U.S. manufacturers to follow policies designed to ensure that protection signals are not lost in any digital-analog-digital conversions (so that the analog hole is closed). The arguments made by the MPAA and its content colleagues in support of national (and, eventually, global) control over the functionality of the devices that manipulate content are fundamentally troubling for the future of innovation and the future of law itself. And Social Darwinism of the kind being invoked by the MPAA has a long history in the U.S., and has been used as justification for any number of ultimately undesirable end-goals. But the content industry has hit on a very important way of thinking about law. We should pay attention to the evolutionary ecosystem of the law as the background medium in which innovation occurs, business models evolve, and social factions grow and prosper. This article argues that preserving the flexibility and evolutionary richness of the code/law background medium (code/law) should be our aim. We need to avoid both codes and laws that unduly freeze innovation, so that code/law can continue to evolve. Competitive DRM systems - self-enforcing private ordering - are a better solution in this context than harmonized code/law.
Download it while its hot!


 
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:
    Like much of life, corporate governance is about control. One of the most interesting and controversial subjects in corporate law concerns the market for corporate control - the buying and selling of companies. Should boards have the authority to fend off hostile takeover attempts, including the right to "just say no," or should target shareholders have the right to decide whether or not to sell the company to a willing buyer, overriding the board's objections? After nearly twenty years of doctrinal developments since the landmark Unocal case, the Delaware Supreme Court and the Delaware Chancery Court continue to struggle with the proper role of directors and shareholders in responding to a bid for the company. Lawyers, investment bankers, corporate executives, directors, shareholders, and legal scholars also remain unclear about the extent to which directors can impede the decision of shareholders to sell to a bidder. The Delaware Supreme Court's most recent takeover decision, Omnicare, Inc. v. NCS Healthcare, Inc., seems to confuse things only more. This Article offers a model of Delaware takeover law that explains how the leading Delaware Supreme Court takeover cases fit together. Instead of looking at takeover law through the lens of fiduciary duty, this Article's "control-based" approach to Delaware takeover law relies on the theory of the firm, as well as positive corporate law, to understand how control is allocated between the board and shareholders. At bottom, there are separate spheres of board (managerial) control and shareholder (residual) control. The takeover decision occurs at the intersection where board and shareholder control meet and in fact overlaps both spheres. One might think that shareholders have an absolute right to sell to a bidder, since alienability is a characteristic feature of ownership. However, the fact that a shareholder quite literally owns her shares is not enough to resolve the debate over defensive tactics, because the sale of the company can significantly impact the target's corporate strategy, over which the board exercises authority. According to the "control-based" model of takeover law, the extent to which target directors can adopt defensive tactics depends on whether the takeover attempt primarily implicates board control or shareholder control - in other words, on whether the bid raises matters of corporate policy and strategy sufficient to justify the board in blocking shareholders from selling. This general framework is then applied to explain how the leading Delaware takeover cases fit together and sheds light on two particularly important questions: first, what triggers Revlon; and second, can target boards "just say no"? The paper concludes with a blueprint for the future development of Delaware takeover law in a way that would ultimately lead to more shareholder choice and limits on defensive tactics.


 
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:
    Understanding the sexualization of interracial relationships in the past illuminates the attitudes prevalent today towards same-sex couples and the continued opposition to same-sex marriage. This Article compares heterosexual mixed-race and same-sex unions (including both mixed-race and mono-race couples) in the context of history, both legal and cultural. The history of opposition to interracial marriage in this country is replete with sexual undertones. Mixed-race couples were viewed as sexually perverse, and the ban on marriage and sexual relationships in the States served to run these human connections underground, making them secret, closeted and sinful liaisons. In the courts, arguments were made to oppose the abolition of mixed-race sexuality and marriage that are similar to arguments currently brought forth to prevent same-sex marriage. In particular, opponents of mixed-race marriage - like current opponents of same-sex marriage - were concerned with biblical creed, natural law, and with the raising of future generations of Americans. This article also examines the real-life similarities between couples whose marriages break race taboos and couples whose marriages break gender taboos. Even recently, when mixed-race marriage has been legal for over three decades, many mixed-race couples encounter problems that should persuade skeptics that the analogy between same-sex love and mixed-race love is not just a glib legal argument. The sexualization of mixed-race couples served the same end it does for gay couples today, including making the deprivation of marriage rights seem fair. Due to sexual stereotyping, the "privilege" that allows only some couples to marry does not have to be understood as a "structured advantage;" instead it is seen as "deserved and fair."


 
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:
    Critics of the patent system suggest the rules for determining patentability should be stricter, subjecting patents to more scrutiny during Patent Office examination. This Article offers a counterintuitive model system under which patent applications are registered, not examined, to elucidate a new normative view that sees present positive law rules for obtaining patents as primarily operating to minimize social cost, and that accounts for otherwise puzzling aspects of the patent system. This "registration" theory for patent-obtaining rules is a companion to the "commercialization" theory for patent-enforcing rules by the same author. This Article shows how these theories together offer a more coherent view of the patent system than the "reward," "prospect," and "rent dissipation" theories. This Article further identifies those patentability rules that are essential and those that should be reformed, while revealing inherent registration aspects of our present system and reasons for eschewing reforms presented elsewhere.


 
Conference Announcement: Privacy: An Interdisciplinary Colloquium
    The Department of Philosophy of the University of Utah presents Privacy: An Interdisciplinary Colloquium University of Utah Salt Lake City, Utah April 1-3, 2004 for active links, go to http://www.hum.utah.edu/philosophy/news/conferences/privacy.html Conference Schedule
      Thursday, April 1 5 pm Rod P. Dixon Lecture: Bruce Jennings (Hastings Center), "Two Concepts of Privacy: Reflections on Isaiah Berlin, Hannah Arendt, and Bioethics 6:30 pm Reception, everyone invited 7:30 pm Division of Medical Ethics evening ethics discussion group, everyone invited Friday, April 2 8:00-9:00 am William Edmundson (Georgia State), "Privacy as a Rightto do Wrong" 9:00-10:20 Virgil Aldrich Lecture: Anita Allen (Penn), "The Racial Privacy Initiative: The Early Death of a Bad Idea" 10:20-10:40 Coffee 10:40-11:40 Daniel Sturgis (Colorado/Boulder), "Is Voting a Private Matter? 11:40-1:00 William Talbott (Washington), "The Evolution of a ‘Penumbral’ Right to a Protected Sphere of Autonomy" 1:00-2:00 pm Lunch (catered) 2:00-3:00 Gary Wihl (Rice), "Protecting Privacy Within Nearly Just Societies" 3:00-4:20 Pamela Sankar (Penn), "Genetic Privacy" 4:20-4:40 Coffee 4:40-5:40 David Meeler (Winthrop), "Keeping Private Matters Private" 5:40-6:40 Scott Anderson (British Columbia), "Who Needs Privacy?" Saturday, April 3 9:15-10:15 Alan Rubel (Wisconsin/Madison), "The Patriot Act and a Warranted Concern Account of Privacy” 10:30-12:00 Roundtable Discussion, all speakers invited Moderator: Peggy Battin (Utah) Discussants at-large: Nicholas White (Irvine) Christina Chwaszcza (Kiel) Special Events. There will be a reception Thursday evening following the Rod P. Dixon Lecture. Also, there will be a conference dinner Friday evening at the close of that day's sessions, at the home of Leslie Francis.
    Registration, Accommodation, and Travel Registration. Please email Lenna Hanson (lenna.hanson@hum.utah.edu) with your name, affiliation and number of companions traveling with you.Correct counts will allow us to plan receptions. Extra-Curricular Activities. Salt Lake City, world-renowned as the host city of the 2002 Olympic Games, is a haven for winter sport enthusiasts. Conferees are encouraged to enjoy the great outdoors while visiting Salt Lake City. Where to Stay. Speakers will be accommodated at the University Guest House. Other out-of-town conferees are also welcome to stay at the University Guest House. The University Guest House is $65 per night for the conference rate. Call 801/587-1000 or toll free at 888/416-4075. More information about the Guest House can be found here. How to Get Here
      >From Salt Lake International Airport. Leave the airport grounds and follow signs for I-80 East. Remain on I-80 East until the Exit for Foothill Drive / Parleys Way. Follow signs for Foothill Drive, and remain on Foothill Drive until you reach the Wasatch Drive. Take a right onto Wasatch Drive and follow through first set of lights. After going under the Legacy Bridge, merge into the turning lane and take a left. Follow this road to the golf course and take the first available left hand turn. At the first intersection, take a left. Follow this street until you come to the Olpin Union. The parking lot at the Union is open to visitors. Proceed to Orson Spencer Hall, the building directly SW. This campus map might help. >From Los Angeles, CA, Arizona and points south and west of Utah. Follow I-15 North through Las Vegas to the Salt Lake valley. When you pass Provo, follow I-15 until the I-80 interchange. Take I-80 East to the Exit for Foothill Drive / Parleys Way. Follow signs for Foothill Drive, and remain on Foothill Drive until you reach Wasatch Drive. Take a right onto Wasatch Drive and follow through the first set of lights. After going under the Legacy Bridge, merge into the turning lane and take a left. Follow this road to the golf course and take the first available left hand turn. At the first intersection, take a left. Follow this street until you come to the Olpin Union. The parking lot at the Union is open to visitors. Proceed to Orson Spencer Hall, the building directly SW. This campus map might help. >From San Francisco, CA, Reno, NV, and points west of Utah. Follow I-80 East until you pass Salt Lake International Airport. Then, follow the directions above from Salt Lake International Airport. >From Denver and points east of Utah. There are two ways of getting to Salt Lake City from Denver. The easiest route to follow is I-25 North to Cheyenne, WY and I-80 West to Salt Lake City. Salt Lake City is 25 miles West of Park City. Take the Foothill Drive / Parleys Way Exit and follow the directions given above. >From Idaho and points north of Utah. Follow I-15 South until you reach Salt Lake City. Then, use the directions above to get to the university.
    Inquiries. For all other inquiries, please email Mariam Thalos (mthalos@philosophy.utah.edu) or Leslie Francis(francisl@law.utah.edu). Conference Sponsors. We would like to thank the following organizations for providing financial support of this conference:
      Department of Philosophy Division of Medical Ethics Tanner Humanities Center Utah Humanities Council


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:
    Gay couples tend to be childless, and even when surrogacy or adoption provides children, they are deprived of the mutually supportive and complementary perspectives of mother and father. Although it isn't required of every husband and wife, marriage cannot be separated from procreation and the development of a child's character within a stable family. The prosperity of the American republic, and civilizations before it, has depended on families for this vital instruction. It is irreplaceable. These are not new insights. The word "matrimony" is from the Latin matrimonium ducere — reflecting the unity of man and woman for the purpose of having children. Plato insisted that "marriage laws first [be] laid down" and that a fine be levied on those who don't marry because "intercourse and partnership between married spouses is the original cause of childbirths." Aristotle made marriage between husband and wife paramount because the "legislator should begin by considering how the frames of the children whom [they are] rearing may be as good as possible." Later, Rousseau noted that "marriage has civil consequences without which it would be impossible for society itself to subsist."
There is more to Kmiec's argument, but I must admit that despite my great respect for Kmiec's intellect, I was almost wholly unmoved. Let's focus on this sentence:
    "Marriage cannot be seperated from procreation and the development of a child's behavior within a stable family."
What does this mean? Kmiec has used the modal verb "can" which is used to express relationships of possibility and necessity. So what kind of impossibility does Kmiec mean to invoke when he uses the negative form of "can," i.e. "cannot." Consider these possibilities:
  • Conceptual necessity. Perhaps, Kmiec means that marriage is conceptually inseperable from procreation. If that is his claim, then it is clearly false. It is obviously possible to have a concept of childless marriage; indeed Kmiec's op/ed uses that concept.
  • Physical necessity. Perhaps Kmiec means that it is physically impossible to have a marriage that is childless. But Kmiec himself admits that this is not the case. So that cannot be what Kmiec means.
  • Moral necessity. Sometimes we use the words "must" or "can" to express a moral argument. For example, "You must lie," or "One cannot kill an innocent person." This seems to be the only plausible interpretation of Kmiec's claim. In other words, when he said
      "Marriage cannot be seperated from procreation and the development of a child's behavior within a stable family."
    what he meant was
      "Marriage should not be seperated from procreation and the development of a child's behavior within a stable family."
    But if that is Kmiec's meaning, then his argument is much weaker than it might at first seem. The whole argument then depends on the specific reasons that Kmiec has for prohibiting gay marriage. And what are those reasons? Many of the reasons Kmiec provides are actually supposed disadvantages of gay or lesbian households as the primary situs of caregiving. But these are not arguments against gay marriage per se as Kmiec himself seems to realize, when he recognizes that the marriage question has been and can be seperated from the custodial parenting question. When it comes to arguments directed at gay marriage itself, Kmiec simply doesn't have an argument. Not one. Zippo. Zilch. Nil. Nothing. Nada. Don't take my word for it. Read his op/ed for yourself.
I respect those whose opposition to gay marriage is rooted in their religious beliefs, and I support the legal right of religious traditions to refuse to sanction gay marriages and to oppose the legalization of gay marriage. But I have yet to see a convincing argument against gay marriage that appeals to public reasons--reasons that are accessible to all citizens irrespective of their comprehensive moral or religious doctrines. Kmiec hasn't even come close to providing a convincing public reason for prohibiting gay marriage.


 
Monday Workshops
    Update: At Vanderbilt, The Legacy of John Rawls Lecture Series continues with Russell Hardin, Political Science, NYU, presenting From Order to Justice: Hobbes and Rawls.
    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:
    This paper explores whether national political questions during the second party system were resolved into questions adjudicated by the Supreme Court of the United States. The essay details an appropriate test for Tocqueville's thesis, demonstrates that most national political questions that excited Jacksonians were not resolved into judicial questions, and explains why Tocqueville's thesis does not accurately describe national constitutional politics during the three decades before the Civil War. That most political questions were not resolved into judicial questions during the three decades before the Civil War given common political science claim that "(v)irtually any issue the Court might wish to resolve is offered to it." That Jacksonian political actors did not resolve all political questions into constitutional questions or into constitutional questions adjudicated by the Supreme Court requires major rethinking of the role of law and political choice in structuring the Supreme Court's agenda.


 
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:
    Asbestos was once referred to as a 'miracle mineral' for its ability to withstand heat and it was used in thousands of products. But exposure to asbestos causes cancer and other diseases. As of the beginning of 2001, 600,000 individuals had filed lawsuits for asbestos-related diseases against more than 6,000 defendants. 85 firms have filed for bankruptcy due to asbestos liabilities and several insurers have failed or are in financial distress. More than $54 billion has been spent on the litigation - higher than any other mass tort. Estimates of the eventual cost of asbestos litigation range from $200 to $265 billion. The paper examines the history of asbestos regulation and asbestos liability and argues that it was liability rather than regulation that eventually caused producers to eliminate asbestos from most products by the late 1970s. But despite the disappearance of asbestos products from the marketplace, asbestos litigation continued to grow. Plaintiffs' lawyers used forum-shopping to select the most favorable state courts techniques for mass processing of claims, and substituted new defendants when old ones went bankrupt. Because representing asbestos victims was extremely profitable, lawyers had an incentive to seek out large numbers of additional plaintiffs, including many claimants who were not harmed by asbestos exposure. The paper contrasts asbestos litigation to other mass torts involving personal injury and concludes that asbestos was unique in a number of ways, so that future mass torts are unlikely to be as big. However new legal innovations developed for asbestos are likely to make future mass torts larger and more expensive. I explore two mechanisms - bankruptcies and class action settlements - that the legal system has developed to resolve mass torts and show that neither has worked for asbestos litigation. The first, bankruptcy by individual asbestos defendants, exacerbates the litigation by spreading it to non-bankrupt defendants. The second, a class action settlement, is impractical for asbestos litigation because of the large number of defendants. As a result, Congressional legislation is needed and the paper discusses the compensation fund approach that Congress is currently considering.


 
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:
    Corporate America considers risk management vitally important and considers derivative financial products an indispensable tool for managing many types of financial risk regularly faced by today's corporations. Not content with criticizing derivatives speculation as undesirable, however, some academics have begun to question the seemingly more benign use of derivatives as hedging devices, arguing that, under the irrelevance theorem developed by Franco Modigliani and Merton Miller, such hedging by corporations harms diversified shareholders. This has led some legal commentators to conclude that current corporate law norms fail to provide adequate guidance to management in a world characterized by derivatives and other new financial innovations. In this article, I demonstrate that a broad rethinking of the basic principles of corporate law as applied to corporate derivatives hedging is neither necessary nor warranted. In fact, such arguments raise a severe danger, if adopted by future courts judging management decisions regarding corporate hedging, of undermining the business judgement rule as applied to management hedging decisions. I demonstrate, through both a theoretical and empirical analysis, that because many potential benefits may flow to corporate shareholders due to firm-level hedging, the corporate hedging decision is a business decision just like many other decisions impacting shareholder welfare that are commonly made by corporate management. Accordingly, the decision of whether and how much to hedge should be protected by the business judgement rule, so long as that decision is made in good faith by fully informed and disinterested corporate managers.


 
Conference Announcement: Insufficient Reason: Non-Rational Elements in Judgment and Action
    2nd ANNUAL CORK ROUNDTABLE IN PHILOSOPHY: Insufficient Reason: Non-Rational Elements in Judgment and Action 26-27 MARCH 2004 Council Room, North Wing, University College Cork PROGRAMME
      Friday 26 March 1.50 - 2.00 pm Official Welcome and Opening of the Roundtable 2004 2.00 - 3.00 pm: Sabina Lovibond (Oxford): Akrasia and the Indeterminacy of Practical Judgment 3.00 - 4.00 pm: Heike Schmidt-Felzmann (NUI Galway): Moral Practice: Identification and Affect 4.00 - 4.30 pm: Coffee 4.30 - 5.30 pm: Rowland Stout (UC Dublin): Does Practical Rationality Lead a Dynamic Life? 5.30 - 6.30 pm: David Hemp (UC Cork): Insufficient Evidence 8.00 pm Roundtable Dinner at Greene's Restaurant, McCurtain Street, Cork Saturday 27 March 10.00 - 11.00 am: Maeve Cooke (UC Dublin): Re-Presenting Truth 11.00 - 11.30 am: Coffee 11.30 - 12.30 pm: Joseph Biehl (UC Cork): Nihilism About Reason 12.30 - 1.30 pm: Oliver Ranner (UC Cork): Plato and the Non-Rational Foundation of Philosophy
    All Welcome The organizers gratefully acknowledge the generous support of the Department of Philosophy and the Arts Faculty at University College Cork. Contact: David Hemp: d.hemp@ucc.ie Tel: +353 21 490 2550 Julia Jansen: j.jansen@ucc.ie Tel: +353 21 490 2562 Oliver Ranner: o.ranner@ucc.ie Tel: +353 21 490 2054


 
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:
    Whether insurance companies should have access to genetic test results of insurance applicants and/or should be allowed to impose such testing as part of insurance underwriting remains hotly debated. In Canada, as in other countries with universal health care coverage, the debate focuses on the use of genetics in the context of life insurance and additional health insurance. This article first discusses how human rights law and insurance law provide some protection in Canada against genetic discrimination, even in the absence of specific statutes or regulations. It then highlights why the use of genetic information for private insurance contracts still raises concerns in the context of country with a universal health care system and with some legislative protection. In the second part of the article, various legal and policy options are discussed in comparative perspective. The author analyzes how different options have been implemented in other countries, in particular in Europe. The article describes the experience of these countries with: moratoria on the use of genetic information; industry self-regulation; changes to insurance law, including prohibiting the use of genetic information and setting a ceiling on insurance coverage; and changes to human rights law. The author calls in conclusion for the introduction of a more general regulatory review process for genetic testing.


 
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
    Monday, March 15
      Update: At Vanderbilt, The Legacy of John Rawls Lecture Series continues with Russell Hardin, Political Science, NYU, presenting From Order to Justice: Hobbes and Rawls.
      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.
    Tuesday, March 16
      At the University of Pennsylvania's philosophy series, G.A. Cohen (All Souls College, University of Oxford) presents Saving Justice from Constructivism.
      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.
    Wednesday, March 17
      Update: At the University of Manchester's philosophy series, Christina Howells (Oxford) presents Mortal Subjects.
      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.
    Thursday, March 18
      Seyla Benhabib's Tanner Lectures conclude today at U.C. Berkeley.
      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.
    Friday, March 19
      At the University of San Diego, the Institute for Law and Philosophy is hosting the Roundtable on Criminal Responsibility.
      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
    Introduction Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory.
    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":
      a bipedal primate mammal (Homo sapiens)
    And person is sometimes defined as a "human" or "individual". But "person" has another meaning, one that distinguishes the concept of person from the concept of human. Suppose, for example, an intelligent alien species were to arrive on Earth (or humans were to encounter them elsewhere). If the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.
    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:
    • Intelligence--One possibility is that the possession of "intelligence" (at some threshold level) is the criterion for moral personhood. Of course, "intelligence" itself is hardly a transparent concept.
    • Autonomy--Another idea is that persons must be capable of autonomy. But what is autonomy? One notion is that autonomous beings must be capable of second-order beliefs and motivations. That is, autonomy requires that one be able to have beliefs about one's beliefs and desires about one's desires.
    • Communication--Yet another possibility is that personhood requires the ability to communicate with others or to use language. On this criterion, it is possible that some higher primates might qualify for personhood--although the empirical evidence on primate use of human language is disputed.
    • Self-Awareness--Finally, some have argued that the criterion for moral personhood should be self-awareness or reflexive consciousness. To be a person, I must be aware of the my own consciousness.
    This is not an exhaustive list of the criteria for moral personhood. Moreover, these criteria might be combined in various ways. For example, it might be argued that only an intelligent, autonomous, language-using, self-conscious being would be a full moral person.
    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
    • John Chipman Gray, The Nature and Sources of the Law (Roland Gray ed., MacMillan 1921)
    • Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 North Carolina Law Review 1233 (1992).
    • Christopher Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972)
    • Richard Tur, The 'Person' in Law in Persons and Personality: A Contemporary Inquiry (Arthur Peacocke & Grant Gillett eds., 1987)


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 something manipulative about using religious arguments that you do not yourself to subscribe to. Rather than invoking the truth (as you understand it), you are simply grasping at whatever will get the other person to act the way that you want them to act. It is not quite the same as lying to get someone to do something, but it seems similar. That said, I do think that there are ways of invoking the religious beliefs of others in arguments that do not rub me the wrong way. One might try to build a working coalition that is explicitly neutral as to justifications. One might understand religious texts as expressing some "deeper" truth to which one actually does subscribe.
This is a fascinating question. On the one hand, we think we ought to be sincere offering others reasons in which we believe. Depending on the way in which a nonbeliever presented a religious argument, the presentation might well be deceptive. In order to avoid deception, the nonbeliever would need to either disavow belief in the argument or make the argument condition, with clauses like if all persons were created equal, before delivering the punch line of the argument. On the other hand, though, respect for others requires that we give our fellow citizens reasons which are accessible to them. It would be awfully strange to begin an argument addressed at a believer, with something like, "My first premise is that religion is false."
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:
    For another, there's no ethical obligation to be "honest" in argumentation in this sense. Arguments exist in the abstract; people are just argument delivery devices. If there exists an argument that shows that my philosophy is inconsistent so that I have to adjust the philosophy or change a position or even consciously choose to live with an inconsistency, I should deal with that argument, regardless of whether the guy presenting the argument is self-serving or a creep or Hitler.
And there is more from Bainbridge and from Rick Garnett.


 
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:
    A group of companies is proposing the creation of a new Internet top level domain called ".mobile", with rules that require sites in .mobile to be optimized for viewing on small-display devices like mobile phones. This seems like a bad idea. A better approach is to let website authors create mobile-specific versions of their sites, but serve out those versions from ordinary .com addresses. A mobile version of weather.com, for example, would be served out from the weather.com address. The protocol used to fetch webpages, HTTP, already tells the server what kind of device the content will be displayed on, so the server could easily send different versions of a page to different devices. This lets every site have a single URL, rather than having to promote separate URLs for separate purposes; and it lets any page link to any other page with a single hyperlink, rather than an awkward "click here on mobile phones, or here on other devices" construction. The .mobile proposal looks like a textbook example of Lessig's point about how changing the architecture of the net can increase its regulability. .mobile would be a regulated space, in the sense that somebody would make rules controlling how sites in .mobile work. And this, I suspect, is the real purpose of .mobile -- to give one group control over how mobile web technology develops. We're better off without that control, letting the technology develop on its own over in the less regulated .com.
I have the greatest respect for Felten, who writes incisively on the relationship between information technology, but I think that Felten's position on .mobile is fundamentally misguided:
  • The .mobile TLD, if created by ICANN, is simply an attempt to create a standard. Its success will depend on the market. If Felten is right and a "better approach is to let website authors create mobile-specific versions of their sites, but serve out those versions from ordinary .com addresses," there is no a priori reason to believe that the market won't favor the better alternative.
  • But if the .mobile TLD is never created at all, because ICANN accepts arguments like Felten's, then the market will never have an opportunity to make the choice between the two models. ICANN is not well suited to act as a regulator of the Internet. Most obviously, ICANN is a very lean organization. It does not have a professional staff of policy-scientists, economists, lawyers, and technologists who can do a really thorough analysis of proposals like the .mobile TLD idea and the objections like Felten's.
  • Moreover, creating .mobile would not change "the architecture of the net" in a way that would increase its regulability. Quite the contrary, the current policy, which imposes artificial restrictions on the number of TLDs, is the real culprit. The solution is for ICANN to begin the process of opening up the root, preferably by auctioning new TLDS. A modest and entirely sensible first step would be for ICANN to auction off 50 new TLD slots. If the experiment succeeds (and it will), then ICANN could continue to auction a significant number of new TLD slots each year.
Karl Manheim and I have written a comprehensive analysis of these issues. Our paper, An Economic Analysis of Domain Name Policy, has just come out (Hastings Communications and Entertainment Law Journal, Vol. 25, p. 317, 2004), and it also can be downloaded by clicking on the title.


 
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:
    Should laws about sex and pornography be based on social conventions about what is disgusting? Should felons be required to display bumper stickers or wear T-shirts that announce their crimes? This powerful and elegantly written book, by one of America's most influential philosophers, presents a critique of the role that shame and disgust play in our individual and social lives and, in particular, in the law. Martha Nussbaum argues that we should be wary of these emotions because they are associated in troubling ways with a desire to hide from our humanity, embodying an unrealistic and sometimes pathological wish to be invulnerable. Nussbaum argues that the thought-content of disgust embodies "magical ideas of contamination, and impossible aspirations to purity that are just not in line with human life as we know it." She argues that disgust should never be the basis for criminalizing an act, or play either the aggravating or the mitigating role in criminal law it currently does. She writes that we should be similarly suspicious of what she calls "primitive shame," a shame "at the very fact of human imperfection," and she is harshly critical of the role that such shame plays in certain punishments. Drawing on an extraordinarily rich variety of philosophical, psychological, and historical references--from Aristotle and Freud to Nazi ideas about purity--and on legal examples as diverse as the trials of Oscar Wilde and the Martha Stewart insider trading case, this is a major work of legal and moral philosophy.
And you read the introduction here. I have found Nussbaum's work to be consistently illuminating and strikingly original. Her latest book is especially timely, as emotions of disgust play an important role in the kulturkampf over the intersection between law & sexuality, gender, and family.


 
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:
    the President enjoys a "residual" foreign affairs power under Article II, Section 1's grant of "the executive Power." As we seek to establish in this Article, the ordinary eighteenth-century meaning of executive power--as reflected, for example, in the works of leading political writers known to the constitutional generation, such as Locke, Montesquieu, and Blackstone--included foreign affairs powers. By using a common phrase infused with that meaning, the Constitution establishes a presumption that the President will enjoy those foreign affairs powers that were traditionally part of the executive power.
Now Curtis A. Bradley (University of Virginia) and Martin S. Flaherty (Fordham) have posted Executive Power Essentialism and Foreign Affairs (Michigan Law Review, Vol. 102, 2004) on SSRN. Here is a taste of the critique of the Prakash-Ramsey interpretation of the vestings clause:
    The so-called "Vesting Clause" of Article II of the Constitution, which provides that "The executive Power shall be vested in a President of the United States of America," stands in apparent contrast with the Article I Vesting Clause, which provides that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President an array of residual powers, especially foreign affairs powers, that are not specified in the remainder of Article II. This argument, which we call the "Vesting Clause Thesis," was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washington’s 1793 Neutrality Proclamation. In recent years, the Vesting Clause Thesis has gained newfound popularity. White House officials were apparently prepared to deploy the argument in support of the Bush Administration's authority to use military force against Iraq had Congress not expressly granted such authority. Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. Professor John Yoo has invoked the Thesis in a number of recent articles as support for a variety of alleged presidential foreign affairs powers. The Thesis also has received recent support from Professor Phillip Trimble, and its historical account of executive foreign affairs authority is similar to the account developed in a thoughtful recent book by Professor H. Jefferson Powell. This Article critiques the Vesting Clause Thesis on both textual and historical grounds. As for text, the difference in wording between the Article I and Article II Vesting Clauses can be explained on a number of other plausible grounds and need not be read as distinguishing between a limited grant of legislative powers and a plenary grant of executive power. As for history, the narrative that is offered by proponents of the Vesting Clause Thesis has two central features. First, it is a story of continuity, whereby European political theory is carried forward, relatively unblemished, into American constitutional design and practice. Second, the narrative relies on what could be called "executive power essentialism" - the proposition that the Founders had in mind, and intended the Constitution to reflect, a conception of what is "naturally" or "essentially" within executive power. We argue that this historical narrative is wrong on both counts. Among other things, the narrative fails to take account of complexity within eighteenth century political theory, the experience of state constitutionalism before 1787, and the self-conscious rejection by the Founders of the British model of government. The narrative also understates the degree to which the constitutional Founders were functionalists, willing to deviate from pure political theory and essentialist categories in order to design an effective government.
Download it while its hot!
And if I may be so bold, I also recommend my own The Aretaic Turn in Constitutional Theory.


 
Conference at Sheffield Today Today at the University of Sheffield, a one day Kant Conference.


Friday, March 12, 2004
 
Friday Workshops
    At SUNY Buffalo, Robert Goodin, Australian National University, presents Democratic Accountability: The Third Sector and All with comments by James Gardner, UB, & Ken Shockley, UB.
    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:
    The Catholic Archdiocese of Boston faced the threat of large tort judgments as a result of acts of sexual abuse committed by its priests. Because the Archdiocese is a public charity, it has been suggested that the Archdiocese could invoke the Massachusetts charitable immunity statute, which in certain circumstances places a $20,000 cap on the tort liability of a charitable organization. This Article explores the role of charitable organizations in our culture, and the distinctive type of state oversight to which they are subject. It then discusses various rationales for the doctrine of charitable immunity. The Article determines that charitable immunity is best understood as a limitation on vicarious liability. Finally, the Article examines these competing policy objectives as applied to the particular facts of the Archdiocese sexual abuse scandal. Although many of the cases involved have recently been settled, the legal and moral propriety of invoking the charitable immunity statute in such a situation is still an open question.


 
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:
    The fact of a small number of hostile takeover bids in Japan the recent past, together with technical amendments of the Civil Code that would allow a poison pill-like security, raises the question of how a poison pill would operate in Japan should it be widely deployed. This paper reviews the U.S. experience with the pill to the end of identifying what institutions operated to prevent the poison pill from fully enabling the target board to block a hostile takeover. It then considers whether similar ameliorating institutions are available in Japan, and concludes that with the exception of the court system, Japan lacks the range institutions that proved to be effective in the United States. As a result, the Japanese courts will have a heavy responsibility in framing limits on the use of poison pills.


 
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:
    The Daubert trilogy of Supreme Court cases - Daubert, Joiner, and Kumho Tire, codified in Federal Rule of Evidence 702 - has established new rules for the admissibility of scientific evidence in federal court. The situation in state courts is far more unsettled. First, a significant number of courts have continued to adhere to the tests they used before Daubert, either the Frye general acceptance test or some other test. Even among those states that have adopted Daubert, its application has been decidedly nonuniform. Only a few states have adopted the Daubert trilogy in its entirety. Some states have adopted Daubert, but have not yet adopted Kumho Tire or Joiner. Others have adopted Daubert and Kumho Tire, but not Joiner, or have adopted only part of Joiner. Still other states view the Daubert trilogy as only instructive, or as consistent with their own traditional state tests but not binding. This article analyzes the degree to which the holdings of the Daubert trilogy have been adopted by state courts. This analysis shows that there is a rich diversity of tests within the states. Indeed, contrary to the prevailing wisdom, the Daubert trilogy is not yet the majority standard even among the states that have rejected Frye.


 
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:
    Once it is conceded that a political structure defined by religious principles will exclude those who do not choose to adopt those principles, then there is little left in the search for religious unity. If cultural and political unity is a desirable goal, therefore, we must search for a secular alternative to the religious unity model. I sketch the outlines of two such secular options in this essay. One, which I will term the affirmative case for constitutional secularism, takes as its starting point the essential functions of a democracy, and uses those essential functions as the lodestar for political unity. The second, darker model, which I will term the negative case for constitutional secularism, is based on the indisputable recognition that the very factors that make religion exclusive and disunifying are also the factors that can lead diverse groups of religious adherents to give up their quest for unity through dominance in exchange for a guarantee of survival. After exploring in a bit more detail the nature of religious exclusivity, I turn to the a fuller explanation of the two options for achieving real - i.e., secular - national unity.


Thursday, March 11, 2004
 
Thursday Workshops
    At the University of Michigan's law and economics series, Robert Daines presents Liquidity, Asymmetric Information and Mandatory Disclosure: The Impact of the 1934 Act.
    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:
      Though there is no right against legal paternalism as such currently enacted anywhere in the world, the historical development of human rights cannot be understood unless it is seen as, in part, the development of rights against legal paternalism. The most important event in the historical development of rights against legal paternalism is the development of a right to religious freedom. The reason is simple: There is no greater harm a person could do to herself than to bring it about that she suffers unbearable torment for all eternity. Suppose I believe that will be your fate if you do not practice my religion. I propose to save you (and others like you) from eternal suffering by making it illegal for you to practice any religion but mine. This legal establishment of my religion would be an example of legal paternalism, because enforcing it would involve my overruling your own judgment about what is good for you. 2 A right to freedom of religion represents a rejection of this kind of paternalism. Once it is allowed that people should be free to make and follow their own judgments of what will be to their eternal benefit and harm, it is hard to see why they should not be equally free to make and act on less momentous decisions about what is good for them.
    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.


 
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:
    Focusing on the election of Arnold Schwarzenegger as governor in California, this article examines the curious reemergence of direct democracy. The article begins by tracing the disfavored status of any direct democratic mechanism in the original constitutional design. In addition, the use of recalls further violates the Framers' commitment to fixed terms of office to insulate wise political leadership from immediate accountability to the potentially inflamed desires of political majorities. Despite this background, the Article argues that a significant part of the current impulse toward plebiscitary forms of governance owes to the increasing unaccountability of legislative branches of government toward median preferences. As a result of gerrymandering and other distortive features of modern districting, there is a growing gulf between increasingly polarized and fractious legislative delegations and the centrist preferences of the bulk of the voting public. Schwarzenegger provides a striking example with a candidate able to muster half the votes in a crowded field, yet running on a platform that could not have prevailed in the primary of either major party. This article was originally presented as the 2004 Cutler Lecture at William and Mary.


 
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:
    Informal rulemaking is about to be transformed by the silent revolution of E-Government, the widespread incorporation of web-based technology in the public sector. With funding and impetus provided by the Electronic Government Act of 2002, the federal government is accelerating the transition by agencies from paper-based to electronic crafting of regulations. E-rulemaking, augurs the end of autonomous agency practice and the beginning of centralization through automation. According to current administration plans, notice-and-comment rulemaking will take place at one website under the direction of the Office of Management and Budget. This E-rulemaking Initiative is perhaps the most far-reaching such governmental transformation ever effected. At the same time, this radical overhaul is taking place without without regard for how it will impact the right of citizens to participate. This Article focuses on participation in rulemaking and how technology is likely to change it. The necessity to design information and communication systems for on-line rulemaking precipitates nothing less than a rethinking of bureaucracy itself. Having to translate rulemaking into a set of software specifications confronts the question of how to embed the desired practices for participation into the design of software. This Article argues that designing for e-rulemaking should shift the emphasis away from one-off commenting on a document and toward cultivating on-going communities of interest and expertise. Simply putting notice and comment on-line makes the cost of speech cheaper. This only opens the floodgates to a quantity of undifferentiated public input - notice and spam. Nor does the mere right to participate ensure successful democratic practice. A legal rule by itself cannot institutionalize the capacity necessary to form communities of participation. What is crucial is the way tools might be designed to embed methods of interpersonal communication to structure dialogue. These speech tools - and the legal policy which gives rise to them - could provide the processes to make participation practicable and avoid the current situation where public comment reading has to be outsourced to third party consultants. This design-centered approach has the potential to ground the law of rulemaking in actual practice and to anchor that practice in the theory of participatory democracy and collective action. While the Article explains the current state of electronic rulemaking on an agency-level and the central Federal Electronic Rulemaking Initiative, it proposes new designs for cost-effective speech tools for notice-and-comment rulemaking. The Article also proposes the development of dialogic methodologies to promote more collaborative, less hierarchical and more sustained policy juries and articulates the metrics for evaluating their success. Only through evaluation can OMB identify best practices and code them into the design of the tools for e-rulemaking.


 
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:
    This short op-ed-length article discusses one instance, characteristic of Russia's stock markets in the 1990s, in which an oligarch engaged in extensive self-dealing with a controlled company, to the severe detriment of minority shareholders, ignoring both the Russian company law and the company's own charter. Shareholder attempts to seek redress in the Russian courts were dismissed on such odd grounds that corruption is the only plausible explanation. I have updated the original article slightly to reflect facts not available at the time.


 
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:
    This paper explains why so called "world best practices" in corporate governance developed in the US and the UK represent the problem not the solution for the crisis in capitalism that has reduced share values by trillions of dollars. One reason is that a unitary board has absolute power to manage its own conflicts of interest to allow absolute corruption. Another reason is that directors have no systemic process to obtain independently of management, the information, will and capability to act to protect themselves, shareholders and stakeholders. Nor do directors have a systemic process to discover if their trust in management might be misplaced. Shareholders have the power to correct these problems by changing corporate constitutions to introduce stakeholder communications networks to minimise the control of information by management. Also, to separate the power to manage from the power to govern to provide checks and balances to minimise and/or manage conflict of interests.


 
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:
    In this article, we explore the hypothesis that Enron's financial releases were so complex and misleading that no one could have predicted its rapid downfall, and we find that, contrary to our hypothesis, a number of people were contradicting Enron's own rosy view of itself long before the middle of 2001. We then talk about the ways in which Enron became part of the public consciousness, far beyond what it had done merely as a business entity.


 
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:
    There is a built-in paradox in the emergence of international law over the last decade as a core concern of academics and policy-makers. On the one hand, it is difficult to imagine any other period in history that has witnessed such a profusion of attempts to tame the anarchical society by hedging it in a straight-jacket of legalities. Throughout the 1990s, international conferences generated reams of treaties, codes, and agendas for action. International adjudicatory tribunals proliferated, and endeavored to give teeth to ideas and obligations hitherto thought to be essentially aspirational. And yet, the ability of international law to regulate state behavior has rarely been more suspect than it is today. The mono-optic lens through which the United States views the relevance of international law to the regulation of her global conduct - relevant when it confers on her a benefit, and irrelevant when it purports to constrain her - far from being exceptional, is actually illustrative of the approach taken by many members of the international society to international law. From Australia to Denmark, or Spain to Malaysia, and as a response to domestic political forces, unilateralism reigns supreme in the visitation of disabilities on immigrants. International society continues to distinguish substantively and substantially between nationals and "aliens," citizens and non-citizens, insiders and outsiders, members of the community and the "other." This essay discusses the role of the idea of the "other" in the construction of international law. It argues that far from existing in antithetical opposition, the frameworks of international legalisms popularized in the 1990s were built upon, and in fact would not be viable without, the explicit understanding that legalities are framed by reference to a constructed "other." Rather than being aberrational, the tendency and capacity of powerful states to seek to use rules to bind others while exempting the application of such rules to themselves, are integral to international legal order, and notwithstanding the 1990s, this is no less true today than it was previously.


Wednesday, March 10, 2004
 
Wednesday Workshops
    At University College London's Colloquium in Legal and Social Philosophy, Cass Sunstein (University of Chicago) presents Valuing Lives.
    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:
    This paper identifies eight reasons why it is rational not to trust large complex Anglo corporations and how these reasons could be removed. Two reasons are that directors are overloaded with information but also lack information independent of management to evaluate management and the business. A third reason is that directors do not have systemic processes to discover if their trust in management is misplaced. A fourth and fifth reason is that directors have absolute power to manage their own conflicts of interest and a dominant shareholder can enter into related party transactions that can unfairly extract value. The sixth and seventh reasons are the incentive for directors not to blow the whistle on their colleagues and the impotence of a director to act alone. The eighth reason is that shares can be manipulated and traded covertly. Four changes in corporate constitutions are identified that could remove these concerns. These are to establish a watchdog board, introduce cumulative voting for directors, establish stakeholder councils and introducing sunlight share trading.


 
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:
    The past two decades have witnessed widespread attempts to reform tax structures in developing countries. As the relatively small formal sector limits the base for taxes on income, the major reform is to replace trade taxes with sales taxes. To the extent that this has involved rationalisation of taxes, reducing the level and range of tax rates, and a shift away from taxes on international trade, the reforms are likely to have improved economic and collection efficiency. However, little attention has focussed on the likely effects on distribution and the poor. This paper reviews available evidence on the effects of various taxes on distribution and the poor to address this neglected aspect of reform. Taxes on exports and goods consumed especially by the poor (e.g. kerosene) are the most consistently found to be regressive, whereas taxes on 'luxury' items such as cars, beverages and alcohol are the most likely to be progressive. The available evidence suggests that sales taxes are slightly more progressive. The available evidence suggests that sales taxes are slightly more progressive, or less regressive, than taxes on imports. Consequently, it seems likely that the reforms will not have worsened the effects of the tax structure on distribution and the poor.


 
Somin on Posner Ilya Somin (George Mason University - School of Law) has posted Richard Posner's Democratic Pragmatism on SSRN. Here is the abstract:
    Judge Richard Posner's recent book, "Law, Pragmatism, and Democracy", is a major contribution to the ongoing debate over the best conception of democracy and the role of judicial review within it. Posner urges that political and legal decision-makers should be guided by what he calls everyday pragmatism rather than worry about abstract moral considerations (chs. 1-2). He links this conception of pragmatic government to an unromantic theory of democracy that rejects more demanding and idealistic views currently embraced by many political theorists and legal scholars. In contrast to deliberative democracy and other theories that require a high level of disinterested political involvement on the part of citizens, Posner follows Joseph Schumpeter in defending a theory of democracy limited to a competitive power struggle among members of a political elite for the electoral support of the masses. He further argues that judicial review should be based on a combination of pragmatism and adherence to his limited conception of democracy, rather than sticking closely to formalist theories of adjudication, which demand strict adherence to the text of the Constitution, legal precedent, or the original intent of the framers (chs. 6-10). Judge Posner makes a large number of powerful points and his critiques of opposing views are often devastating. Unfortunately, he is less persuasive in defending the central theses of this book: his theories of pragmatism, democracy, and judicial review. Posner's version of pragmatism is both too narrow and too broad. Its excessive narrowness resides in Posner's failure to come to grips with the fact that the pragmatic soundness of an action cannot be assessed without a prior determination of whether the results it accomplishes are normatively desirable. This latter judgment cannot itself be a purely pragmatic one, but requires some sort of normative theory of ends. On the other hand, Posnerian pragmatism is also too broad because it is not clear what if any considerations can be excluded from its scope. A theory that incorporates everything ultimately proves nothing. Posner's model of democracy likewise suffers from important deficiencies. While he is surely correct in claiming that Schumpeterian democracy is a superior alternative to the unrealistic visions of deliberative democrats, he is too quick to conclude that it is the best currently available version. Posner's defense of Schumpeter does not sufficiently consider the shortcomings exposed in recent scholarship in political science and economics. As a result, Posner fails to adequately refute the possibility that Schumpeterian democracy might function better if the powers of democratic legislatures were much more severely restricted than he considers desirable. Finally, Posner's argument that judicial decision-making should be based on his theories of pragmatism and democracy suffers from the limitations of those theories themselves. It also has additional shortcomings of its own, including the likely inability of judges to implement those theories. As Posner himself partially acknowledges, judges may often serve democracy better by staying within the bounds of formalism.


 
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:
    This paper identifies eight reasons why it is rational not to trust large complex Anglo corporations and how these reasons could be removed. Two reasons are that directors are overloaded with information but also lack information independent of management to evaluate management and the business. A third reason is that directors do not have systemic processes to discover if their trust in management is misplaced. A fourth and fifth reason is that directors have absolute power to manage their own conflicts of interest and a dominant shareholder can enter into related party transactions that can unfairly extract value. The sixth and seventh reasons are the incentive for directors not to blow the whistle on their colleagues and the impotence of a director to act alone. The eighth reason is that shares can be manipulated and traded covertly. Four changes in corporate constitutions are identified that could remove these concerns. These are to establish a watchdog board, introduce cumulative voting for directors, establish stakeholder councils and introducing sunlight share trading.


 
Conference Announcement: Preference Information and Well-Being
    THE ROYAL INSTITUTE OF PHILOSOPHY ANNUAL CONFERENCE: PREFERENCE-FORMATION AND WELL-BEING ST JOHN'S COLLEGE, CAMBRIDGE, UK 14-16 JULY 2004 Organisers: Dr Serena Olsaretti, Dr Ross Harrison (University of Cambridge) In a number of areas of contemporary moral and political philosophy, as well as in philosophy of economics, the positions philosophers defend rely on the assumption that a cogent and defensible account of preference-formation can be developed. This is particularly evident in debates about distributive justice and about well-being. While substantial work has been carried out on the relevance of preferences for well-being, their representation and measurement, less attention has been devoted to the explicit discussion of candidate accounts of preference-formation, the desiderata such accounts should meet, and the integration of such accounts into theories of well-being. This conference brings together philosophers and economists working on preference-formation, rationality and well-being, to initiate a discussion with salient implications for these philosophical debates. SPEAKERS INCLUDE: · Richard Arneson (University of California, San Diego) · Nancy Cartwright (London School of Economics) · Daniel Hausman (University of Wisconsin) · Mozaffar Qizilbash (University of East Anglia) · Philip Pettit (Princeton University) · Connie Rosati (University of California, Davis) · Johan Brännmark (University of Lund) · Alex Voorhoeve (University College London) Registration until 15 May 2004 Applications for student bursaries to cover up to 50% of conference fee and accommodation costs will be considered. Full information and registration forms available at http://www.phil.cam.ac.uk/news_events/royal_inst_conf.html All queries should be addressed to kch24@cam.ac.uk or by snail-mail to: Katherine Harloe Faculty of Philosophy University of Cambridge Sidgwick Avenue Cambridge CB3 9DA United Kingdom


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:
    The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, Interpretation and Institutions. Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argue that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue.
Download it while its hot!


 
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:
    In a letter released Monday, Kennedy, a high-ranking member of the Senate Judiciary Committee, wrote to the 11th U.S. Circuit Court of Appeals that "a serious question exists as to whether Judge Pryor's recess appointment is constitutional." He asked the court to determine the validity of the appointment, so as to not taint any decisions in which Pryor may be involved. Recess appointments can only come "at the end of a Congress or the recess between the annual sessions of Congress," Kennedy wrote. "No other Article III judge in the nation's history has ever received a recess appointment during a brief holiday period in the midst of a session of Congress," Kennedy added in a memo attached to the letter.
On the one hand, there is strong historical support for Kennedy's argument, as my colleague Michael Rapport (The Right Coast) tells me whenever we discuss the issue. On the other hand, recess appointments have been made during brief recesses many, many times over a period of decades. For a review of the evidence, check out this report from the Federalist Society.
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 San Diego's colloquium series, Connie Rosati (U.C. Davis, Visiting USD) presents Some Puzzles about the Objectivity of Law.
    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:
    It seems that the European Union is currently undergoing the process of fundamental constitutional choice. This is why the process, initiated by the establishment of the Convention on the Future of Europe, turns attention of many observers not only to the first such successful experiment, the one of the United States, but also to some failures in experimentation with constitutional choices. The crucial problem lies in the way the federal principle would be applied in the final act of the Convention as a basis for the new Constitutional Treaty of the European Union. Most important for the Convention members is to be aware of the limited alternatives in the process of formulating the final text. The process will continue after the finalisation of the Convention's work for a long time. We propose that the Convention include into its final document the provision for periodic reconsideration of the functioning of the resulting Constitutional Treaty.


 
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:
    This paper uses event study methodology to measure whether firms that gave soft money to political parties received excessively high rates of returns from their contributions. We measure the excess returns of firms that gave large amounts of soft money and firms that gave no soft money, and changes in those excess returns around five key events in the approval of the Bi-Partisan Campaign Reform Act: the House of Representatives passes BCRA, the Senate passes BCRA, the President announces his intention to sign BCRA, the Supreme Court hears oral arguments, and the Court announced its decision to uphold the Act. These actions, especially the Court's decision, involved considerable uncertainty, and in some cases went against the conventional wisdom. Other studies have found that stock market prices do respond to surprising political events, such as the death of the powerful Senator Henry Jackson of Washington. We find that the five events surrounding the BCRA had no noticeable effect on the valuation of Fortune 500 firms that gave large amounts of soft money, relative to the firms that gave no soft money.


 
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:
    With The End of History and the Last Man, Fukuyama established himself as the prophet of liberal democracy and free markets, heralding their final triumph as the only form of governance capable of commanding legitimacy. Asked to reflect on his predictions a decade later, Fukuyama concluded that the greatest threat to liberalism comes from biotechnology because it alone has the potential to remake the human nature liberal democracy was designed to serve. Fukuyama makes a compelling case that biotechnology may produce developments that should concern us; he is ironically less persuasive in articulating a liberal democratic framework for governing the developments he fears. This review will consider the implications of Fukuyama's work for the future regulation of biotechnology. First, the review will maintain that Fukuyama is almost certainly right that biological innovations span a continuum of developments that range from vitamins enhancing infant cognition to research unlocking the secrets of cellular aging. Second, the review will argue that the value of Fukuyama's analysis cannot lie in the precision of his prescriptions, which are in any event vague. Finally, the review will consider the prospects for a different approach to biotechnology's governance. Many of the most controversial of the developments Fukuyama describes - use of the nuclear cell transfer technology associated with cloning, selection of embryos with desirable traits - have already been done in readily moveable fertility clinics with a small amount of private funding from a determined clientele. The potential applications with the greatest promise, however - such as genetically modified plants that address the nutritional needs of the developing world, or breakthroughs in the use of stem cells to treat paralysis, cancer, or diabetes - require public funding and/or a large measure of international acceptance. Fukuyama correctly observes that we do not have the infrastructure necessary to either promote or control these developments. Whatever our conclusions about the wisdom of the new technology, we are far behind in developing political oversight capable of even keeping track of the new developments' scientific, ethical and social implications. Reconnecting political participation with scientific innovation will be biotechnology's greatest challenge.


 
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:
    The diversity rationale the Supreme Court articulated in Grutter v. Bollinger encompassed two different sorts of "educational benefits" produced by student-body diversity. First, "discourse" benefits accrue from the exchange of diverse viewpoints and experiences on campus. Such benefits may have lasting effects beyond school, as minority and majority students alike apply lessons from school to life at large. This was the diversity rationale championed by Justice Powell's opinion in Bakke. Second, and in a departure from Powell's understanding of diversity in Bakke, the Grutter Court acknowledged that our multi-racial society realizes "leadership" benefits when minority graduates of top universities assume leadership positions in nationally important non-educational institutions like the military, Congress, leading U.S. corporations, and the federal judiciary. From this perspective, the presence of a diverse student body at an educational unit is important not so much for discourse on campus and its societal reverberations, but because the school serves as a "gatekeeper" institution to nationally sensitive leadership. The leadership-benefit concept of diversity was notably advanced by an amicus brief in Grutter filed by retired military officers. There is marked variation in the extent to which higher educational institutions seek to, and in fact, confer these two sorts of benefits. Liberal-arts colleges represent the strongest case for the discourse benefits of student-body diversity. The selective military academies, whose graduates become commissioned officers of an institution quintessential to national interests, represent the strongest case for the gate-keeping leadership benefits of diversity. Undergraduate institutions, however, cannot stake as persuasive a claim to leadership benefits, because positions of national leadership in America today increasingly require graduate or professional education, the providers of which can correspondingly stake stronger claims to leadership benefits. The compelling interest test as formulated in Grutter should take account of this variation in mission and causation, with the consequence that student-body diversity might not suffice as a compelling government interest in every single higher educational context.


 
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:
    During the last years, interest in national parliaments and their participation in European matters has increased greatly. This paper looks at how such involvement has, and might be further, developed. Collective modes of co-operation by national parliaments, such as the Assizes, COSAC and the Conventions, will be investigated, as will national-level scrutiny of government activities at the European level, specifically those in Denmark, Italy and the UK.


 
Jargon Or Why Neither "Judicial Activism" Nor "Liberal" versus "Conservative" Provide Meaningful Focus for Constitutional Debate
    You are the activist! Am not. You're the activist! No way! You're the activist. Introduction Replying to Jonah Goldberg, the ever acute Jack Balkin recently wrote:
      [L]iberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens, the gutting of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughterhouse Cases less than five years after the Amendment was ratified; striking down the Civil Rights Act of 1875, which was passed by the very same Congress that passed the Fourteenth Amendment, in the Civil Rights Cases; the creation of the police power jurisprudence of the Lochner Era which selectively struck down labor laws that conservatives didn't like; striking down the federal income tax in the Pollock case; reading the words "other states" in the Eleventh Amendment to mean "other states or same state" in Hans v. Louisiana; the creation of the exception to Hans in Ex Parte Young when Hans turned out to prevent conservative judges from enjoining laws that were inconsistent with their laissez-faire values; the manufacture of federalism doctrines out of whole cloth in National League of Cities v. Usery; and, after National League of Cities was overruled, the creation of new federalism doctrines out of whole cloth to the same effect in Seminole Tribe and Alden v. Maine; the manufacture of the "congruent and proportional" test and its use to limit civil rights legislation in Kimel and Garrett; the continued development of commercial speech doctrine to limit government power to regulate advertising; and last but not least, the application of strict scrutiny to race conscious affirmative action in the face of evidence that the Fourteenth Amendment was not intended or written to enforce a colorblind Constitution.
    And responding to Stuart Buck, Balkin has recently elaborated on his earlier remarks:
      Jonah [Goldberg] claimed that judicial activism is a liberal phenomenon. I said that historically it was the product of conservative forces. So to see whether my historical claim is correct we have to look at what those people who were generally regarded in their own time as conservative believed to be the best interpretation of the Constitution. We can't impose the principles of contemporary conservatism because that is anachronistic and indeed, irrelevant to my quarrel with Jonah. For example, the vast majority of conservatives today think Brown v. Board is rightly decided. But in 1954 many, if not most, had very serious doubts about the opinion. The same is true for a whole host of other liberal causes of the 1950s and 1960s which have become part of the consensus that contemporary liberals and conservatives now share.
    Something very interesting is going on in these two passages. Let's see if we can unpack it!
    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:
      a doctrine or practice that emphasizes direct vigorous action especially in support of or opposition to one side of a controversial issue
    Every decision by every court is "activist" in the sense that decisions decide, they resolve the legal issue before the court. When a case is controversial or politically contentious, then the losing side will see the Court as having taken an "activist" stance. The winning side is likely to regard the very same decision as simply the normal operation of the rule of law--exercising the passive virtues and allowing the law to speak through the court. Courts are forced to be active--they must decide the cases before them, and as Balkin would be the first to admit, passive modes of decision (invocation of justiciability, abstention, and the like) are nonetheless decisions. The "ism" is added to "active" when we object to the result or the reasoning of a legal decision.
    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 truth of the matter is, whether people like it our not, we have a two track system for changing constitutional meanings. Article V amendments, and Article III interpretations. Liberal judges and conservative judges alike engage in constitutional change through judicial interpretation. Although some judges say they are only following precedent or only following original understanding, that's just simply not true. They are using the modalities of precedent or history or text or structure in order to argue for their preferred vision of constitutional norms. (See my previous post on Scalia's jurisprudence for my discussion of how he selectively invokes original meaning and precedent to get where he wants to go).
      The fact is, we are all living constitutionalists now; but only some of us are honest about it.
    But if is "simply not true" when "judges say they are only following precedent or only following original understandings" because judges really say those things "to argue for their preferred vision of constitutional norms," then all judges are activist in the sense that they read their own values into the Constitution.
    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:
      We can't impose the principles of contemporary conservatism because that is anachronistic and indeed, irrelevant to my quarrel with Jonah. For example, the vast majority of conservatives today think Brown v. Board is rightly decided. But in 1954 many, if not most, had very serious doubts about the opinion.
    What on earth can Balkin have in mind? We should note in passing that many liberals were critical of Brown v. Board at the time it was decided--precisely because it was hard to square with New Deal theorizing about the role of the Supreme Court. The more serious problem is with Balkin's apparent endorsement of nominalism about the categories of "liberal" and conservative." Political parties change their ideologies, and political labels change their meaning. The Democrats were the party of segregation until the 1950s; Republicans took up the banner of state's rights with Nixon's "southern strategy" in the late 1960s. The label "liberal" was associated with free markets and individual liberties until fairly recently; now, these ideas are considered "conservative" by some and "libertarian" by others. Of course, we can be nominalist about our labels for political ideologies. We can say, "By 'conservatism' we just mean whatever is called by that name." But if this is what Balkin means, then his claim that conservatives have a much longer history of judicial activism is not much of a claim.
    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.
For more of my recent thoughts about these issues, see The Aretaic Turn in Constitutional Theory.
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:
  • New Board Reviewing Articles Now--Yale Law Journal, Harvard Law Review, Stanford Law Review, Columbia Law Review, Michigan Law Review, California Law Review, Texas Law Review, Virginia Law Review, Georgetown Law Journal, Duke Law Journal, Vanderbilt Law Review, Ohio State Law Journal, Minnesota Law Review, George Washington Law Review, Hastings Law Journal, North Carolina Law Review, Emory Law Journal, Notre Dame Law Review, William and Mary Law Review, Florida State University Law Review, Georgia Law Review, Alabama Law Review, Suffolk University Law Review, William Mitchell Law Review
  • New Board Begins Operating in March--Cornell Law Review, Fordham Law Review, Iowa Law Review, Washington University Law Quarterly, U.C. Davis Law Review, Arizona State Law Journal, Tulane Law Review, University of Cincinatti Law Review
  • New Board Not Selected Until After March--University of Chicago Law Review, Wisconsin Law Review, Washington & Lee Law Review (old board reviewing for next year now), Buffalo Law Review, Hastings Communications and Entertainment Law Journal (old board reviewing manuscripts now).
And here is the detailed information on each journal:
  • Yale Law Journal--the incoming Editor-in-Chief reports that the new board is considering articles for next year's volume.
  • Harvard Law Review--an editor reports that the new articles office is up and running.
  • University of Chicago Law Review--the Editor-in-Chief reports that the Board turns over in mid-April of this year -- about a month after the boards of most other law reviews. The new articles editors begin considering submissions immediately thereafter. Chicago strongly encourages that articles be submitted whenever they are ready, even if that is before mid-April.
  • Stanford Law Review--the Senior Articles Editor reports that the new board is in place and accepting manuscripts for next year.
  • Columbia Law Review--the Executive Articles Editor reports that the incoming Articles Committee began reviewing submissions on March 1, 2004.
  • California Law Review--the Managing Editor reports that the new board began considering manuscripts in late February.
  • Michigan Law Review--the Articles Editor reports that the new board has been elected, they are now reading articles for the new volume, and the official transition will occur on March 10.
  • Texas Law Review--the outgoing Edition-in-Chief reports that the the new editorial board of the Texas Law Review began to review articles this week.
  • Virginia Law Review--the incoming Articles Editor reports that the new board was elected on Friday, February 13, is now accepting submissions and will begin reviewing them forthwith.
  • Georgetown Law Journal--the Senior Articles Editor reports that the new board is in place and has been considering articles since February 13th.
  • Cornell Law Review--an editor reports that the new board will begin making decisions after March 20.
  • Northwestern University Law Review--the website reports that submissions for the Fall and Winter issues will be accepted beginning in February.
  • Duke Law Journal--the outgoing Editor-in-Chief reports that the new board is in place and submissions are currently being considered for the new volume. The incoming Managing editor reports that review began on February 20.
  • Vanderbilt Law Review--the website reports that submissions are being accepted as of March 1.
  • Iowa Law Review--the editors report that the new board will begin reviewing submissions on March 15.
  • Minnesota Law Review--a faculty member reports that the new board was elected on Saturday and begin reviewing manuscripts on March 8.
  • Wisconsin Law Review--The Senior Articles Editor reports that the new board will begin reviewing submissions on April 1.
  • George Washington Law Review--the Editor-in-Chief reports that the new editorial board is selected on February 20 and the incoming Articles Committee began reviewing submissions on March 1, 2004 for Volume 73, the first issue of which will print in November 2004. The old board does not exit until April 1.
  • University of Illinois Law Review--the website reports that articles will be accepted starting January 20. I have been unable to confirm the board transition date.
  • Fordham Law Review--the Editor-in-Chief reports that the new board will begin considering submissions for next year at the end of March.
  • Hastings Law Journal--the Editor-in-Chief reports that Hastings is still considering articles for the current volume. The new board will be in place by first week in March and will begin considering articles for the new volume in the second week of March.
  • Washington University Law Quarterly--the incoming Executive Articles Editor reports that they will begin reviewing submissions in mid-March.
  • Emory Law Journal--the editors report that the new board began reviewing articles on March 1.
  • Ohio State Law Journal--the incoming Editor-in-Chief writes they began accepting submissions for its Fall 2004/Spring 2005 issues on March 1, 2004.
  • U.C. Davis Law Review--the new board will begin reviewing submissions on March 29.
  • North Carolina Law Review--the website indicates that submissions will be considered for next year's volume starting on March 1.
  • Notre Dame Law Review--the incoming Executive Editor reports that the new Board is in place and reviewing manuscripts for next year.
  • Arizona State Law Journal--the website reports that submissions for the next volume will be accepted sometime in March.
  • Tulane Law Review--the website reports that submissions of the next volume will be considered beginning at the end of March.
  • William & Mary Law Review--the editors report that the new board is in place and considering submissions for next year's volume.
  • Washington & Lee Law Review--the editors report that the new board is selected in April, but that articles are reviewed continuously.
  • Florida State University Law Review--the editors are reviewing manuscripts and making offers as of late February.
  • Buffalo Law Review--the outgoing Executive Editor reports that the new new board will take office in early April. Articles are not being reviewed until that time.
  • Georgia Law Review--the outgoing Executive Editor reports that the new board began reviewing articles on March 1.
  • University of Cincinnati Law Review--the incoming Editor-in-Chief reports that the new editorial board has been elected, and will begin reviewing submissions on March 8th.
  • Alabama Law Review--the acquisitions editor reports that the new board has been selected, the transition is underway, and the new board is currently evaluating submissions for next year's volume.
  • Suffolk University Law Review--the Editor-in-Chief reports that the new board is in place and reviewing articles for next year's volume.
  • William Mitchell Law Review--the Editor-in-Chief reports that the new board has been selected and is considering articles for next year's volume.
And from specialized journals:
  • Hastings Communications and Entertainment Law Journal--The outgoing Editor-in-Chief reports that the board turns over in March-April; however, the board constantly reviews incoming submissions on a rolling basis as they come in. They are currently evaluating submissions for issues to be published in early summer and early fall of 2004.
If you would like me to list information for your journal, please email the details (including the date the new articles editors will begin work) to lsolum@sandiego.edu.


 
Monday Workshops
    At Oxford's Centre for Ethics and the Philosophy of Law, the Oxford Legal Philosophy Colloquium 2004. Participants include: John Stanton-Ife (KCL), Nick Barber (Oxford), Pierluigi Chiassoni (Genoa), Timothy Endicott (Oxford), Nicola Lacey (LSE/Yale), Tony Honoré (Oxford), Michael Otsuka (UCL), Tom Campbell (ANU / KCL), Samantha Besson (Oxford / Geneva), Grant Lamond (Oxford), John Finnis (Oxford), Hans Oberdiek (Swarthmore College), Dwight Newman (Oxford).
    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:
    The so-called "Vesting Clause" of Article II of the Constitution, which provides that "The executive Power shall be vested in a President of the United States of America," stands in apparent contrast with the Article I Vesting Clause, which provides that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President an array of residual powers, especially foreign affairs powers, that are not specified in the remainder of Article II. This argument, which we call the "Vesting Clause Thesis," was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washington’s 1793 Neutrality Proclamation. In recent years, the Vesting Clause Thesis has gained newfound popularity. White House officials were apparently prepared to deploy the argument in support of the Bush Administration's authority to use military force against Iraq had Congress not expressly granted such authority. Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. Professor John Yoo has invoked the Thesis in a number of recent articles as support for a variety of alleged presidential foreign affairs powers. The Thesis also has received recent support from Professor Phillip Trimble, and its historical account of executive foreign affairs authority is similar to the account developed in a thoughtful recent book by Professor H. Jefferson Powell. This Article critiques the Vesting Clause Thesis on both textual and historical grounds. As for text, the difference in wording between the Article I and Article II Vesting Clauses can be explained on a number of other plausible grounds and need not be read as distinguishing between a limited grant of legislative powers and a plenary grant of executive power. As for history, the narrative that is offered by proponents of the Vesting Clause Thesis has two central features. First, it is a story of continuity, whereby European political theory is carried forward, relatively unblemished, into American constitutional design and practice. Second, the narrative relies on what could be called "executive power essentialism" - the proposition that the Founders had in mind, and intended the Constitution to reflect, a conception of what is "naturally" or "essentially" within executive power. We argue that this historical narrative is wrong on both counts. Among other things, the narrative fails to take account of complexity within eighteenth century political theory, the experience of state constitutionalism before 1787, and the self-conscious rejection by the Founders of the British model of government. The narrative also understates the degree to which the constitutional Founders were functionalists, willing to deviate from pure political theory and essentialist categories in order to design an effective government.


 
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:
    This article presents a conceptual framework for analyzing the design of international agreements. This inquiry is guided by a simple fact: international agreements are rarely crafted to maximize cooperation. They frequently lack provisions, such as monitoring systems, that even the most rudimentary analysis suggests are necessary if agreements are to meet their goals. Using the concepts of form and substance I examine three features of international agreements, two related to form and one to substance. Legality refers to the choice between legally-binding and non-legally binding rules; structure to an agreement's provisions for monitoring and sanctioning non-compliance; and substance to the degree of deviation from the status quo ante that an agreement generally demands. Each of these terms represents a distinct design element, yet there are systematic tradeoffs among these elements. Only by understanding these tradeoffs - and the domestic political factors that often determine them - can we understand why agreements are constructed in the manner that they are. I make four core claims. First, the dichotomy of "hard" and "soft" law is not coherent and obscures more than illuminates. I reject the notion that soft law is an analytically useful category. Legality, I argue, is a binary variable. Second, I provide an account of the choice of legal form. I argue that states choose between legal and nonlegal agreements - what I term contracts and pledges - based on a combination of functional concerns, such as uncertainty and credibility; the configuration of power in a given issue-area; and, most significantly, the demands of domestic interest groups and the implications of domestic institutions. These factors roughly correspond to the three prevailing traditions in IR theory: institutionalism; realism; and liberalism. Third, I analyze the relationships between the legality, structure and substance of international agreements. I argue that the differing domestic politics of different issues - such as trade liberalization or environmental protection - help explain when contracts are substantively deep and demanding and when they are shallow and weak. I also examine how the structure of compliance review influences the substance of agreements. Fourth, I conclude with some normative claims about the design of agreements. The systematic preference for contracts in international cooperation often weakens the substance and structure of agreements when states are uncertain about their ability to comply. Consequently, although pledges are often viewed as second-best alternatives, they can, under some circumstances, be first-best.


 
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:
    Both defamation law and the tort of false light invasion of privacy have been widely criticized as confusing in theory and arbitrary in result. A significant source of dissatisfaction, this Article contends, is that the prevailing system fails to account adequately for the existence of genuinely close cases under both torts. Such cases inevitably arise under doctrines that, like defamation and false light, contain major elements of indeterminacy. Yet, defamation and false light rules are generally based on a winner-take-all approach that departs from modern notions of apportionment. This Article proposes a new tort, wrongful mispresentation of character, as a device to enable jurors in appropriate cases to register their sense that both parties in a defamation or false light suit have staked out substantial positions. Rather than supplanting existing causes of action, the wrongful mispresentation would offer an additional option to juries legitimately torn between compelling arguments for both the plaintiff and defendant. Moreover, by conferring legal status on this compromise, the tort might stimulate settlements along this line between parties who would otherwise contest their suit to the bitter end. Part I provides an overview of salient developments in defamation and false light doctrines, and of criticisms and reforms that have been advanced. Part II describes the nature of the proposed tort of wrongful mispresentation and the circumstances under which it would be available; in addition, this Part discusses arguments that might be raised for and against the proposal. Part III identifies several areas in which the difficulty of principled resolution is a recurring phenomenon, and analyzes how wrongful mispresentation might provide a useful outlet in each area.


 
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:
    This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test.


Sunday, March 07, 2004
 
Legal Theory Calendar
    Monday, March 8
      At Oxford's Centre for Ethics and the Philosophy of Law, the Oxford Legal Philosophy Colloquium 2004. Participants include: John Stanton-Ife (KCL), Nick Barber (Oxford), Pierluigi Chiassoni (Genoa), Timothy Endicott (Oxford), Nicola Lacey (LSE/Yale), Tony Honoré (Oxford), Michael Otsuka (UCL), Tom Campbell (ANU / KCL), Samantha Besson (Oxford / Geneva), Grant Lamond (Oxford), John Finnis (Oxford), Hans Oberdiek (Swarthmore College), Dwight Newman (Oxford).
      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.
    Tuesday, March 9
      At the University of San Diego's colloquium series, Connie Rosati (U.C. Davis, Visiting USD) presents Some Puzzles about the Objectivity of Law.
      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.
    Wednesday, March 10
      At University College London's Colloquium in Legal and Social Philosophy, Cass Sunstein (University of Chicago) presents Valuing Rights.
      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.
    Thursday, March 11 Firday, March 12
      At SUNY Buffalo, Robert Goodin, Australian National University, presents Democratic Accountability: The Third Sector and All with comments by James Gardner, UB, & Ken Shockley, UB.
      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.
    Saturday, March 12


 
Legal Theory Lexicon: Rules, Standards, and Principles
    Introduction Early on in law school, law students begin to realize that legal norms are not all cut from the same cloth. Some rules provide "bright lines," others "fuzzy lines," and yet others, no lines at all. The "reasonable person" test in tort law constrains in a very different way than does the rule against perpetuities in property. That is, legal norms differ in extent to which they constrain those who are charged with applying them.
    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 are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant.
    • Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; for example, a standard may provide a framework for balancing several factors.
    • Principles are less constraining still. Principles provide mandatory considerations judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a nonexhaustive set, leaving open the possibility that other considerations may be relevant to the decision.
    This post provides an introduction to rules, standards, and principles for law students (especially first-year law students) with an interest in legal theory.
    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:
      In one torts casebook, for instance, Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite sides of a railroad crossing dispute. They disagree about what standard of conduct should define the obligations of a driver who comes to an unguarded railroad crossing. Holmes offers a rule: The driver must stop and look. Cardozo rejects the rule and instead offers a standard: The driver must act with reasonable caution. Which is the preferable approach? Holmes suggests that the requirements of due care at railroad crossings are clear and, therefore, it is appropriate to crystallize these obligations into a simple rule of law. Cardozo counters with scenarios in which it would be neither wise nor prudent for a driver to stop and look. Holmes might well have answered that Cardozo's scenarios are exceptions and that exceptions prove the rule. Indeed, Holmes might have parried by suggesting that the definition of a standard of conduct by means of a legal rule is predictable and certain, whereas standards and juries are not. This dispute could go on for quite some time.
    Here are some basic ideas about the appropriateness of rules, standards, and principles:
    • Predictability and certainty. If your goal is ex ante predictability and certainty, then rules are usually the way to go. Predictability and certainty are particularly important when the law seeks to guide future conduct. For example, if we want to deter particular forms of conduct, we may do better to define the conduct in a rule (or in a set of rules) that would enable those who engage in the conduct to clearly see that the proscribed conduct is forbidden. Standards provide less guidance, and principles, almost no guidance at all.
      Fairness and sensitivity. On the other hand, if our goal is to insure ex post fairness, then standards may be the way to go. Standards permit flexibility and the consideration of mitigating circumstances. Rigid rules are likely to lead to unfairness in particular cases, because it may be difficult to define in advance all of the circumstances which should count as exceptions to the rule.
      The job of principles. Principles seem best suited for another sort of legal task. Principles cut across doctrinal fields. The same principle--one may not benefit from one's own wrong, for example--may apply in torts, contracts, and the law of wills. Thus, principles are particularly well suited to give legal form to concerns which operate in a wide variety of particular contexts.
    Conclusion Legal theorists need to be able to identify rules, standards, and principles, and more importantly, to be able to argue the pros and cons of formulating legal norms in these standard forms. The main goal of this post has been to enable you to distinguish a rule from a standard and to see that principles operate in a different way than either rules or principles. I also hope that the post has provided you with some tools that will enable you to make arguments like: “this rule would better be reformulated as a standard, because . . ." And arguments, like, “that legal norm really isn't a standard at all, it is better described as a principle.” I've provided some additional references, for those who want to pursue these ideas further.
    References
      Baird & Weisberg, Rules, Standards, and the Battle of the Forms: A Reassessment of § 2-207, 68 Virginia Law Review 1217 (1982).
      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).
    • Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985).
For a complete collection of Legal Theory Lexicon posts, click on this link.


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:
    George Lucas is legendary for bringing digital technology into the movies, but his next release may drive fans to digital piracy instead. The first three Star Wars movies are scheduled to come out on DVD this September after years of delays, but the releases will include only Lucas' modified 1997 versions of his trilogy. The originals' miniature model spaceships have been replaced with computer simulations, and several key scenes have been altered. Lucas, who claims the updates more closely match his vision, is adamant that fans won't get their hands on the previous takes. His executive producer told USA Today, "The original versions technically don't exist." Too late: Fans are already passing around copies of them on BitTorrent, a fast-growing file-sharing network that makes it possible to swap huge, multigigabyte files over less-than-lightning fast Internet connections.


 
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:
  • "I found Constitutional Faith a profound and profoundly unsettling examination of the paradoxes of Constitutional history. I imagine it will be necessary reading from now on to all those readers, and not only scholars, sensitive to the delicate web of beliefs that gives cohesion to our national life and identity."--E. L. Doctorow
  • "The signal virtue of these fascinating travels through the metaphoric and historical life of the secular worship of the Constitution is the challenge . . . to work out the terms of one's own constitutional faith."--Michael Meltsner, The Nation
  • "[Levinson] brilliantly transposes his concern from the overfamiliar problem of how judges should decide cases and how they can be restrained from becoming tyrants to the question of what it means to adhere to a constitution. . . . [The book] is rich and pleasingly conversational."--Thomas Morawetz, The Philadelphia Inquirer
  • "Sanford Levinson is a man of the left who takes patriotism seriously. In Constitutional Faith, he offers a timely meditation on exactly what, if anything, America can stand for."--Stephen Macedo, The New Republic


 
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:
    The traditional theory of the just war comprises two sets of principles, one governing the resort to war (jus ad bellum) and the other governing the conduct of war (jus in bello). One of the central pillars of the traditional theory is that the two set of principles are, in Michael Walzer’s words, “logically independent. It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules.” Let us say that those who fight in a just war are just combatants, while those who fight in a war that is unjust because it lacks a just cause (that is, an aim capable of justifying the resort to war) are unjust combatants. Walzer’s claim that an unjust war can be fought in accordance with the rules of jus in bello presupposes that those rules do not discriminate between just and unjust combatants but apply equally to both. So his claim echoes that of Henry Sidgwick, who urged that “in formulating the rules which civilised opinion should attempt to impose on combatants, we must abstract from all consideration of the justice of the war.”
Download it while its hot!


Friday, March 05, 2004
 
Call for Papers: Nietzsche & Ethics
    Final Call for Papers Nietzsche and Ethics 14th Annual Conference of the Friedrich Nietzsche Society University of Sussex, Brighton UK 10th-12th Sept 2004 Keynote Speakers: Maudemarie Clark (Colgate University) Rosalyn Diprose (University of New South Wales) Volker Gerhardt (Humboldt-Universit t zu Berlin) Brian Leiter (University of Texas at Austin) Henry Staten (Washington University) Deadline for Abstracts 1st April 2004 Deadline for Residential Bookings 1st June 2004 Please send a 500 word abstract for a 30 minute paper on any aspect of Nietzsche's ethical thought to S.Gillham@sussex.ac.uk cc to F.Hyde-Thompson@sussex.ac.uk To read the full call for papers or to download a registration form please visit http://www.sussex.ac.uk/philosophy/1-3-5-1-1.html


 
International Justice Worskhop in London Today
    Society for Applied Philosophy Workshop Friday March 5th International Justice 6-8 pm Room 349, Senate House, Malet Street, London WC1 Nearest tube Russell Square. All welcome -- no fee! Further details from Phil Cole at p.cole@mdx.ac.uk Chair: Dr. Doris Schroeder Senior Lecturer in Philosophy Co-ordinator of European Project "Benefit Sharing with Developing Countries" Centre for Professional Ethics University of Central Lancashire Speaker 1: Dr. Katrin Flikschuh Lecturer in Political Theory and Philosophy Department of Government London School of Economics Speaker 2: Dr. Miltos Ladikas International Research Officer Member of European Project "Benefit Sharing with Developing Countries" Centre for Economic and Social Aspects of Genomics Lancaster University The discussions on the theme of 'international justice' will revolve around two questions. 1) Can we continue to assume with confidence that liberal morality is capable of providing the solution to ever increasing levels of global deprivation and injustice? 2) Is there a shift from individualistic to communal values when looking at global questions of benefit sharing? On the first question, Katrin Flikschuh will argue that one can only sustain an optimistic assumption about the benign force of liberal morality by abstracting it from its statist political and its competitive economic setting. Were that setting to be taken into account, some liberal values might be shown to be less universalisable than they are routinely assumed to be. In that case, we should not argue, implausibly, for the extension of these values to the global context, but should focus on their critical revision in the context of mature liberal societiesí domestic politics. On the second question, Miltos Ladikas will argue that a remarkable move from individualistic to communal values is indeed evident in international debates about issues such as "benefit sharing". Representatives of the global community have worked in a consistent manner to produce guidelines on how benefits from research deriving from local/indigenous knowledge can be shared fairly. However, such guidelines often fall short on definitions of 'community' and feasible ideas on ensuring community participation in decision-making, which do not suffer from a western/individualistic bias. There is an implicit shift of focus from individualistic to community values that requires a subsequent shift of thinking from scholars in the West.


 
Friday Workshops
    At the University of San Diego, Randy Barnett presents The Presumption of Liberty. I am looking forward to this!
    At Michigan's law and economics series, Vicki Been presents Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?.
    At UCLA's tax policy series, David Schizer, Columbia Law School, presents Inconsistencies, Imbalances, and the Taxation of Derivative Securities: An Agenda for Reform.
    At MIT's philosophy series, Elisabeth Lloyd, Indiana University, presents How Should We Understand Bias in Scientific Explanations?.
    At Oxford's Faculty of Law, Michael Rowe presents Vertical Agreements – Freezer Exclusivity.
    At Oxford's Human Rights Discussion Group, Liora Lazarus presents Prisoners` Rights in England and Germany.
    At Oxford's Institute of European and Comparative Law, Chris Hilson presents What’s in a Right? The Relationship Between Community, Fundamental and Citizenship Rights in EU Law.
    At UCLA, Owen Jones (ASU) presents Law and Behavioral Biology.
    At Tulane's Center for Ethics and Public Affairs, Geoffrey Sayre-McCord, University of North Carolina-Chapel Hill, presents Normative Concepts.
    At Princeton's philosophy department, Michael Strevens, Stanford University, presents Why Explanations Lie: An Account of Idealization in Explanation.
    At the Society for Applied for Philosophy in London, there will be a program on International Justice: Theory and Practice with Miltos Ladikos (Lancaster) & Katrin Filkschuh (LSE) as speakers and Doris Schroeder (Central Lancashire) as chair.


 
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:
    Firms going public have increasingly been incorporating antitakeover provisions in their IPO charters, while shareholders of existing companies have increasingly been voting in opposition to such charter provisions. This paper identifies and analyzes possible explanations for this empirical pattern. Specifically, I analyze explanations based on (1) the role of antitakeover arrangements in encouraging founders to break up their initial control blocks, (2) efficient private benefits of control, (3) agency problems among pre-IPO shareholders, (4) agency problems between pre-IPO shareholders and their IPO lawyers, (5) asymmetric information between founders and public investors about the firm's future growth prospects, and (6) bounded attention and imperfect pricing at the IPO stage. I also discuss the policy implications of the possible explanations. Among other things, the analysis implies that researchers should not automatically infer that arrangements adopted in IPO charters are ones that enhance shareholder value. The analysis also indicates that board veto arrangements is unlikely to serve shareholders in companies with dispersed ownership and should not be chosen as a default. The analysis provides some support for limits on contractual freedom at the IPO stage. Finally, the analysis suggests that it might be desirable for corporate law to use sunset strategies, requiring that entrenching arrangements adopted by charter provisions lapse after a certain period unless renewed by a shareholder vote.


 
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:
    What, if anything, do organized sports owe individuals who are seeking to be the best [they] can possibly be? This article explores that question in two dimensions. First, it examines the consequences for organized sports of statutory rights given to persons with disabilities. It then looks at the legal and policy issues raised by individuals' attempts to enhance their athletic success in various ways. It then urges that neither the questions posed by disability nor those posed by enhancement can be answered without addressing deeper questions about the various meanings we put on fair competition in sports. As to disability, it concludes that the application of the Americans with Disabilities Act to sports in the Casey Martin case was generally appropriate, although the Supreme Court's decision does leave open some hard questions. As to enhancement, it questions whether a strong case can be made for singling out for negative treatment performance-enhancing drugs from among all the ways in which top athletes enhance themselves. It suggests we may want to think harder about other ways to deal with such pharmacological enhancements.


 
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:
    The Article seeks a deeper understanding of the role voluntary associations play in society by analyzing the paths by which they mediate between the individual and the collective. Identifying this fundamental mediating function of associations sheds new light on the Supreme Court's handling of various cases involving associations, as it allows us to see the core associational values at stake in a given case and flesh out the individualist-collectivist tensions at play. Viewed in a more holistic light - i.e., engaging the associational interests and values at issue, rather than simply the constitutional doctrine implicated - the resolution of the cases will take on a different gloss, for the disputes are not zero-sum contests between the individual and the association or the association and the state, but rather the association in tension with both. The Article concludes that when any single anchor of the association in relationship (individual versus association versus state) is given unfettered authority to pursue its own interests at the expense of the others, the resulting disparity eviscerates the association's mediating values, thereby threatening to negate the very reasons we seek a vibrant associational life in the first place.


 
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:
    One of the enduring puzzles of New York City's housing market, is the persistence of the housing cooperative, despite the prevailing wisdom that condominiums are more valuable than cooperatives. In this article, we examine the theoretical advantages and disadvantages of cooperatives and condominiums, and apply these theoretical insights to empirically test whether there is a price premium attributable to condominium housing. We then use our findings to speculate as to why the cooperative form remains dominant in New York City and whether its dominance is likely to continue in the future. The empirical analysis is based on hedonic models of house values and uses rich data on apartments sold in New York City between 1984 and 2002. In most instances, theory suggests several reasons why the condominium may be a more efficient and desirable housing form than the cooperative. Unlike the case of cooperatives, condominium owners do not share liability on mortgage debt, they are free to transfer their apartments to whomever they choose, they are subject to fewer rules than cooperative apartment owners and, correspondingly, they need spend less time in internal governance. Our empirical findings confirm the theoretical prediction that legal form does indeed matter. With one important exception, condominium apartments are significantly more valuable than comparable cooperative apartments. The one exception suggests that for some owners, the benefits of restriction and exclusivity that the cooperative form offers may be utility-maximizing. Therefore, we speculate that, except for the segment of the market that seeks a socially exclusive residential environment, the continued dominance of cooperative housing in New York City is probably more a function of legal impediments to conversion and transaction costs than the economic advantages offered by the form.


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:
    The title of this blog is taken from a Latin maxim: "lex est tutissima cassis." roughly translated, it means "law is the strongest armor." Like so many Latinate common law maxims, this one goes back to Sir Edward Coke (1552-1634).
Surf on over!


 
Weatherson on Friedman Brian Weatherson has a marvelous post on Crooked Timber entitled Idealisations in Economics. Here is a taste:
    Friedman was writing (in 1953) in response to the first stirrings of experimental economics, and the results that seemed to show people are not ideal maximisers. The actual experimental data involved wasn’t the most compelling, but I think with 50 years more data we can be fairly confident that there are systematic divergences between actual human behaviour and the behaviour of people typical of economic models. The experimentalists urged that we should throw out the existing models and build models based on the actual behaviour of people. Friedman’s position was that this was too hasty. He argued that it was OK for models to be built on false premises, provided that the actual predictions of the model, in the intended area of application, are verified by experience. Hence he thought the impact of these experimental results was less than the experimenters claimed. When I first heard this position I thought it was absurd. How could we have a science based on false assumptions? This now strikes me as entirely the wrong attitude. Friedman’s overall position is broadly correct, provided certain facts turn out the right way. But he’s wrong that this means we can largely ignore the experimental results, as I’ll argue.


 
Thursday Workshops
    At Florida State, Bill Page, University of Florida, presents Economic Authority and the Limits of Expertise in Antitrust Cases.
    At Yale's Legal Theory Workshop, Alex Aleinikoff, Georgetown (Law) presents The Constitution And the Challenge of Transnational Law. Here is a preview:
      It is commonplace to note the rising impact of transnational legal norms in the U.S. legal system. Scholars and lawyers pressing such claims have argued that international law has been applied in U.S. courts since the beginning of the Republic and that the Supreme Court has repeatedly recognized that “international law is part of our law.” They note both the utility and morality of bringing transnational norms to the U.S. legal system.
      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 Princeton's Political Philosophy Colloquium, Jeff McMahan, Rutgers, presents Unjust War. Here is a taste:
      The traditional theory of the just war comprises two sets of principles, one governing the resort to war (jus ad bellum) and the other governing the conduct of war (jus in bello). One of the central pillars of the traditional theory is that the two set of principles are, in Michael Walzer’s words, “logically independent. It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules.” Let us say that those who fight in a just war are just combatants, while those who fight in a war that is unjust because it lacks a just cause (that is, an aim capable of justifying the resort to war) are unjust combatants. Walzer’s claim that an unjust war can be fought in accordance with the rules of jus in bello presupposes that those rules do not discriminate between just and unjust combatants but apply equally to both. So his claim echoes that of Henry Sidgwick, who urged that “in formulating the rules which civilised opinion should attempt to impose on combatants, we must abstract from all consideration of the justice of the war.”
    At Stanford's Olin Series, Ian Ayres (Yale Law School) presents To Insure Prejudice: Racial Disparities in Taxicab Tipping
    At Berkeley's GALA series, Peter Westen, University of Michigan Law School, presents Some Common Confusions About Consent in Rape Cases.
    At the University of Texas's Constitutional & Legal Theory Colloquium, Richard Primus (University of Michigan) presents Bolling Alone. Here is a tiny taste:
      This Article is about a case, a doctrine, and a surprising fact about our constitutional system. The case is Bolling v. Sharpe, and the doctrine is reverse incorporation. In Bolling, decided the same day as Brown v. Board of Education, the Supreme Court ruled that the District of Columbia may not segregate its public schools even though the Equal Protection Clause is addressed only to states. It would be “unthinkable,” the Court declared, to hold that the Constitution imposes a lesser duty of nondiscrimination on the federal government than it does on the states. That declaration has become the keystone for the reverse incorporation doctrine: just as the Fourteenth Amendment’s Due Process Clause has been held to incorporate provisions of the first eight amendments, the Fifth Amendment’s Due Process Clause was construed to incorporate at least some—and later all—of the equal protection guarantee of the Fourteenth. Constitutional scholars have traditionally taken the view that reverse incorporation makes no sense as a matter of ordinary constitutional interpretation. They have usually also held, however, that the doctrine is nonetheless justified, because the normative need to prohibit racial discrimination by the federal government was and is overwhelming. Each part of this answer has been subject to debate. The stakes in this debate include both the legitimacy of judicial action against segregation fifty years ago and, to the extent that reverse incorporation is the source of the Supreme Court’s ruling in Adarand v. Pena, the status of affirmative action today. This Article analyzes a surprising fact that bears on, but does not resolve, that normative debate. The fact is this: in its heartland area of protecting minorities against racial discrimination, the reverse incorporation doctrine is almost never applied. Since Bolling, the Supreme Court has never declared a federal statute or regulation unconstitutional on the grounds that it discriminates against such a group. More broadly, the Court has never found that a federal prosecutor impermissibly struck a juror from a venire on account of race, that a federal law enforcement officer engaged in unconstitutional racial discrimination against criminal suspects, or that a federal employer fired an employee for unconstitutional racial reasons. This does not mean that reverse incorporation has had no progeny at all. As already noted, the courts have invoked Bolling to limit the use of affirmative action. They have also struck down federal measures as unconstitutionally discriminatory in nonracial contexts like sex and alienage. But in the Supreme Court’s decisions with respect to the heartland of equal protection—the defense of racial minority groups against governmental discrimination—reverse incorporation has been a rule for Bolling alone.
    At Boson University, Jim Lindgren is speaking.
    At George Mason, D. Bruce Johnsen, GMU School of Law, presents The Politicization of American Savings.
    At U.C. Berkeley's philosophy series, Julia Annas, University of Arizona, presents Virtue Ethics and Social Psychology.
    At Australian National University's RSSS, Luke Russell (University of Sydney) presents Developmental Systems Theory and the Evolution of Moral Behaviour.
    At UCLA's legal theory series, Deborah Hellman is speaking, but I do not have a title.


 
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:
    Our paper explores how the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple informed the notorious mid-nineteenth century New York City trial of Amelia Norman for attempting to kill the man who seduced her. Once newspapers, defense lawyers, and reformers recast the defendant as a sentimental heroine, the trial became about seduction, and Norman was acquitted against the weight of the evidence. Sentimental novels turn on the contrast between the passive victim status of the heroine and the active libidinal quest of the rake-villain. As Cathy Davidson points out, this fiction is about silence, subservience, stasis (the accepted attributes of women as traditionally defined) in contradistinction to conflicting impulses toward independence, action, and self-expression (the ideals of the new American nation). The seduction plot diverts attention from this disparity by establishing an affective solidarity between heroine and reader and elevating the ruined woman to a tragic status. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf (conveyed to the jury through the legal vehicle of the insanity defense). Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial, like many other highly sensationalized mid-century seduction-murder trials, spectacularized the disparity which the sentimental novels conjures up and displaces but never resolves. The trial also generated legal change. Norman's case helped persuade the New York legislature to criminalize seduction. The trial also changed the civil law. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when the authors of the Field Code of Civil Procedure (including Norman's lawyer David Graham) granted seduced women standing to bring their own, personal cause of action, and the question of women's consent to sex became important as it had never been before. Norman's trial demonstrates that sentimental novels helped lay the groundwork for this shift in the law. Yet the doctrinal implications of Norman's trial had a second, more ambiguous strain. Other women on trial for killing their seducers followed Norman's example and used the insanity defense to bring their stories before the jury. Soon, however, men on trial for killing their wives' seducers made use of the same strategy. With the male honor defense, the sentimental narrative was appropriated to reinforce male sexual norms. In the end, Norman's trial fostered legal change but also made clear that progressive change in the sexual status of women could not depend on doctrinal tinkering or spectacular trials. As Norman's protector Lydia Child realized - an insight that led her twice to fictionalize Norman's story - only sustained and multifaceted efforts to change cultural as well as legal norms could succeed.


 
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:
    This reviews Judge John T. Noonan's Narrowing the Nation's Power: The Supreme Court Sides With the States. Judge Noonan's book criticizes City of Boerne v. Flores and five later cases in which the Court narrowly construes Congress's power to enforce the Fourteenth Amendment. Judge Noonan compares the Boerne line of cases to Dred Scott v. Sandford and contends that it poses a present danger to the exercise of democratic government. Some prior commentary has found Judge Noonan's legal analysis flawed, while other commentary has praised the book for publicizing the esoteric but important recent case law on federalism. This review explores the connection between the book's flawed legal analysis, on the one hand, and its potential strongly to influence public opinion, on the other hand. In short, the flaws in Noonan's legal analysis stem from his effort to depict the Boerne line of cases as the bastard spawn of the Rehnquist Court, with which he must do knightly battle to liberate our beleaguered democracy.


 
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:
    In this article, I explore the contention of Jeffrey Skilling, former Enron CEO, that Enron's debacle was due to a perfect storm of events. I reject his contention, arguing instead that Enron's downfall was more like Titanic's - hubris and an over-reliance on checks and balances led to Enron's downfall. I then explore how character (especially of those at the top of an organization) can lead to Enron-like disasters, and I talk about how cognitive dissonance can lead to very smart people making very stupid decisions. I end with some musings about how lawyers can learn from Enron.


 
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:
    This essay attempts to achieve the same goal for the complex and confusing topic of sovereign debt restructuring that the "Idiot's Guide" series of books achieve for their covered topics: to provide a systematic, accessible, and easy-to-grasp overview, so that readers can understand issues in context and go on to more advanced study. The essay also compares and contrasts public-law and private-law approaches to sovereign debt restructuring.
But does the title infringe the "Idiot's Guide" trademark?


 
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:
    The paper summarizes various agency cost and market theories of insider trading propounded over the course of the perennial law and economics debate over insider trading. The paper then suggests three testable hypotheses regarding the relationship between insider trading laws and several measures of financial performance. Using international data and alternative regression specifications, the paper finds that more stringent insider trading laws and enforcement are generally associated with greater ownership dispersion, greater stock price accuracy and greater stock market liquidity. This set of findings provides empirical support to theoretical arguments in favor of more stringent insider trading legislation and enforcement.


Wednesday, March 03, 2004
 
Wednesday Workshops
    At the University of London's famous Colloquium in Legal and Social Philosophy, Nigel Simmonds (Corpus Christi, Cambridge) presents Law as a Moral Idea. Here is a taste:
      Most of the time we are inclined to regard law as a set of rather mundane arrangements whereby transactions are regulated and the more objectionable forms of conduct are punished. We take for granted the idea that authorities must decide upon the content of the law, and will choose to enact as law those rules that they hope will advance certain goals or implement certain values. If they pursue goals or espouse values that we do not share, we may find that the laws they enact are not to our taste; indeed, we may sometimes consider the law to be grossly unjust. From this perspective, law appears to be a device that can be used for diverse purposes. Law can serve justice, but can also be employed as an instrument of exploitation. In itself, therefore, law seems to be morally neutral, deriving any moral properties that it may possess from its variable and contingent content. There are times, however, when we think of law in a different way, as embodying an elevated aspiration. Consider, for example, the complex and conflicting feelings that surrounded the trials of the Nazi bosses at Nuremberg. Adherence to the forms and processes of law must there have seemed like a proud proclamation of the values for which the Second World War had been fought, rather than a matter of simple efficacy. The trials that resulted were significant as a forum for the articulation and affirmation of values, and as a visible expression of commitment to legality: they were not seen simply as the best way of establishing the culpability of the accused. In such contexts, law sheds its familiar and workaday garb, and appears on the stage as a lofty aspiration. Governance by law is seen as being in itself a virtue of a just political community; it is not thought of as an instrumentality that is here employed to serve justice, but might in other circumstance have been employed with equal efficacy in the service of evil. Of course, law cannot simultaneously be a lofty moral aspiration and a morally neutral instrument that is as serviceable for evil as for good. When expressed in these terms, our conventional understandings of law seem to embody a fundamental contradiction. Might there be a better way of capturing the mundane and aspirational aspects of law, so as to dissolve the apparent conflict between them?
    At Northwestern's constitutional law series, Jed Rubenfeld, Yale University Law School, presents The Structure of American Constitutional Law. And here is a bit from the middle of the paper:
      Interpretation should hold a normative practice to be intention-based when the normative basis for the undertaking makes it appropriate to hold an agent to all his intentions at a particular moment in the past. When parties enter into a contract, for example, there is no difficulty conceiving their undertaking in intention-based terms, because the normative framework for contract is bargained-for promising. At time 1, when a contract between A and B is formed, A makes a bargained-for promise to B, and if the parties share an express, definite understanding that this promise does not oblige A to x, it is perfectly appropriate that the contract should be so interpreted in future. B cannot later claim that a court should discount this No-Application Understanding as a “mere intention,” rather than a commitment; B would be using the language of commitment as a device to get more than he bargained for. In other words, there is no place here for a distinction, either in what the parties meant to be doing at time 1 or in how their contract should later be interpreted, between mere intentions and commitments. For constitutional law, therefore, interpretation’s first question is whether to understand constitutionalism as a commitment-based practice, in which commitments bind, but mere intentions do not. If constitutional law is not viewed in commitment-based terms, then commitmentarian interpretation has no particular significance for it.
    At Oxford, Lady Justice Arden presents the Halsbury Annual Lecture: Terrorism and Human Rights.
    At Oxford's Environmental Law Discussion Group, Xabier Ezeizabarrena presents The `Prestige` shipwreck: Some limits of international environmental law.
    At NYU's legal history series, Williamjames Hoffer, History, Seton Hall, presents Leviathan Bound: Lawyers, Congress, and the Building of the U.S. State, 1858-1891.


 
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:
    This Article argues that corporate status became popular in the nineteenth century as a way to organize production because of the unique manner in which incorporation permitted organizers to lock in financial capital. Unlike participants in a partnership, shareholders in an incorporated enterprise could not extract capital from the firm without explicit approval of a board of directors charged with representing the interests of the incorporated entity, even when that interest might sometimes conflict with the interests of individual shareholders. While this ability to lock in capital has occasionally led to abuses, the ability to commit capital generally helped promote and protect the interests of shareholders as a group by making it possible for the entity to invest in long-term, highly specific investments. It also helped protect a wide range of enterprise participants who made specialized investments in reliance on the continued existence and financial viability of the corporation. The ability to lock in capital grew out of the fact that a corporate charter created a separate legal entity, whose existence and governance were separate from any of its participants. Although the idea that the law creates a separate legal person when a corporation is formed has been played down in the legal scholarship of the last two decades in favor of the view that a corporation is simply a nexus through which natural persons interact, recent legal scholarship has begun to reconsider the importance of entity status. Entity status under the law, and the associated separation of governance from contribution of financial capital through the formation of a corporation, allowed corporate participants to do something more than engage in a series of business transactions, or relationships, or even projects. It made it possible to build lasting institutions. Investments could be made in long-lived and specialized physical assets, in information and control systems, in specialized knowledge and routines, and in reputation and relationships, all of which could be sustained even as individual participants in the enterprise came and went. And these business institutions, in turn, could accomplish more toward the improvement of the wealth and standard of living of their participants in the long run than the same individuals could by holding separate property claims on business assets and engaging in a series of separate contracts with each other.


 
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:
    The emphasis on firing-based litigation has had subtle but important effects. In the debate over the legislation that would become the 1991 Civil Rights Act, supporters of the bill argued that it was necessary to open opportunities for women and minorities in industries that had traditionally been unwelcoming, while opponents criticized it as a "quota bill" and "lawyers' bonanza." Our research suggests that the opponents' quota-based hiring fears were unfounded, but the bill also appears not to have improved minority employment in traditionally exclusionary industries, and may have even reversed what to that point had been improving minority employment trends in those industries.


 
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:
    This Article argues that corporate status became popular in the nineteenth century as a way to organize production because of the unique manner in which incorporation permitted organizers to lock in financial capital. Unlike participants in a partnership, shareholders in an incorporated enterprise could not extract capital from the firm without explicit approval of a board of directors charged with representing the interests of the incorporated entity, even when that interest might sometimes conflict with the interests of individual shareholders. While this ability to lock in capital has occasionally led to abuses, the ability to commit capital generally helped promote and protect the interests of shareholders as a group by making it possible for the entity to invest in long-term, highly specific investments. It also helped protect a wide range of enterprise participants who made specialized investments in reliance on the continued existence and financial viability of the corporation. The ability to lock in capital grew out of the fact that a corporate charter created a separate legal entity, whose existence and governance were separate from any of its participants. Although the idea that the law creates a separate legal person when a corporation is formed has been played down in the legal scholarship of the last two decades in favor of the view that a corporation is simply a nexus through which natural persons interact, recent legal scholarship has begun to reconsider the importance of entity status. Entity status under the law, and the associated separation of governance from contribution of financial capital through the formation of a corporation, allowed corporate participants to do something more than engage in a series of business transactions, or relationships, or even projects. It made it possible to build lasting institutions. Investments could be made in long-lived and specialized physical assets, in information and control systems, in specialized knowledge and routines, and in reputation and relationships, all of which could be sustained even as individual participants in the enterprise came and went. And these business institutions, in turn, could accomplish more toward the improvement of the wealth and standard of living of their participants in the long run than the same individuals could by holding separate property claims on business assets and engaging in a series of separate contracts with each other.


 
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:
    This paper uses data from the Health and Retirement Survey to measure the effects of alcohol on the incidence of morbidity and death. The study is able to reproduce the implied benefits of engaging in moderate levels of alcohol consumption, even after controlling for a large number of independent variables not usually available in health data sets. In fact, the controls work in the direction of supporting the benefits of engaging in even higher dose levels than conventionally recommended. It turns out, however, that smokers and quitters enjoy most of the benefits of unusually high alcohol consumption. Non-smokers evince modest benefits that are completely captured at very low dose levels. In general, the results suggest that studies of alcohol intake on health need to pay more attention to the characteristics of users. It may be that alcohol is especially beneficial for populations that are deficient in their health for other reasons like smoking or poor eating, whereas populations who follow good diets and do not smoke benefit very little from alcohol use.


 
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:
    This Article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This Article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based joint problem-solving, collaboration with professionals in other disciplines, and intentional development of a new legal culture through activities of local practice groups. Although the DA is undoubtedly helpful in many cases, it also can invite abuse by inappropriately or excessively pressuring some parties to settle when it would be in their interest to litigate. It is unclear whether the DAs violate rules of professional conduct governing withdrawal of attorneys. This Article encourages courts and ethics committees to permit people to use them unless and until there is evidence that they produce a significant risk of serious harm. The Article also urges CL practitioners to experiment with "cooperative negotiation," i.e., using CL techniques without the DAs. CL groups should cooperate with empirical researchers to determine how much the benefits of CL are caused by these agreements as compared with other aspects of the process.


Tuesday, March 02, 2004
 
Tuesday Workshops
    At the University of Chicago's political theory workshop, Luis Medina, University of Chicago, presents Who Is Afraid of Collective Intentionality?
    At Chicago's Olin series, Suzanne Scotchmer, Professor of Economics and Public Policy, University of California, Berkeley, presents Procuring Knowledge, coauthored with Stephen M. Maurer.
    At Oxford's Jurisprudence Discussion Group, Shlomit Wallerstein, presents Justifying the Right of Self Defence: The Problem of Self Preference.
    At Oxford's Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents What We Owe to Our Children.


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 Columbia's law and economics series, Lee Anne Fennell (Texas) presents Common Interest Tragedies. This should be good!. Here is a taste:
      Despite its success, the emerging concept of the anticommons requires further clarification and refinement if it is to serve the diverse array of purposes for which it is now being deployed. This Article begins with a quite basic question that has not received a satisfactory answer in the literature: What distinguishes the problems associated with the anticommons from those associated with the old-fashioned tragedy of the commons? Significantly, some of the key criteria scholars have offered for identifying an anticommons and distinguishing it from an ordinary commons collapse upon scrutiny, as soon as one moves from the pure or prototypical versions of these forms of property to applied incarnations of them. The fragility of the boundaries between commons and anticommons suggests a deeper conceptual blurring that is likely both to impede the development of meaningful theoretical approaches and to hamper efforts to devise appropriate legal responses to real-world resource allocation problems. Pushing a bit on the anticommons idea, then, leads to a broader rethinking of the nature of commons dilemmas and the prospects for their solution. These efforts open up the larger question that takes center stage here: How might the universe of common and interdependent resource problems be most usefully carved up?
    At NYU, Paul Chevigny presents Social Dancing and Social Association.
    At George Mason's Philosophy, Politics, & Economics series, Christopher Mantzavinos, Research Group in Collective Goods, Max Planck Institute, presents Naturalistic Hermeneutics. Here is a taste from near the end of this fascinating draft:
      The arguments investigated in this book have shown that the philosophical hermeneutics so predominant in the German speaking world is afflicted with many grave deficiencies and contains little of use. In particular, the hermeneutic views of Heidegger and Gadamer offer no satisfactory solutions – either to the problem of text interpretation or to any other problems. Heidegger’s philosophy, developed with impressively formulated, excessive claims, in principle offers nothing more than a series of trivialities, which are practically devoid of information. Gadamer’s conception, although more closely connected with the traditional hermeneutical questions, possesses a very low problem-solving capacity: the transcendental vocabulary and the claim to the universality of the approach are not sufficiently substantiated, and they neither offer a correct analysis of the process of understanding nor a useful methodological guide for interpretive praxis. Notwithstanding the fact that philosophical hermeneutics is a source of inspiration for the work of many contemporary authors, it remains essentially misguided.
    At the University of Chicago's law and philosophy series, Emily Buss, University of Chicago Law School, presents The Relationship Between Procreative and Parental Rights.
    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:
    This is a review of the book Raghuram G. Rajan & Luigi Zingales, Saving Capitalism from the Capitalists (2003). In this book, the authors appear as latter-day Adam Smiths to tout the power and beauty of free markets, or more specifically the power of capital markets. Their tale is informed by recent work in psychology as well as two well-functioning hearts and focuses considerable attention on the important role free capital markets can play in the developing world. Despite the story's frequent elegance, in the end, it is more a fairy tale than an accurate description of the liberating powers of finance. The authors remain so committed to the ideal of a free market that they too frequently fail to see the full effect of its deformities, and ignore the many stories of the harm that free markets often bestow.


 
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:
    This paper addresses an indefinite, but fundamental question that has received little attention in the literature on corporate law theory and policy in England: What purpose lies at the heart of the company's cause of action which justifies the use of derivative actions? The derivative action's usual raison d'etre is ". . . a form of pleading originally introduced on the ground of necessity alone in order to prevent a wrong going without redress". However, this traditional view of the derivative action, envisioning both the necessity and the inevitability of vindicating a company's rights is troubling nonetheless because litigation is costly, sometimes infeasible and shareholders rarely initiate derivative actions in England because of well-documented reasons. In addition, shareholders often refrain from pursuing legal proceedings on behalf of the company, because they lack funds, and they are hamstrung by the existing law in entering into imaginative arrangements whereby funds might be made available to them. For these reasons it is hard to rely on litigation when its occurrence is somehow fortuitous. At the same time, this view is not entirely satisfactory because it explains why derivative actions are allowed, but not what purpose they serve. Resolution of this question has remained beyond the ambit of academic discussion in England. But if derivative actions are to play any role in English company law, the question is what would be the net benefit of these actions for companies, shareholders and the business community overall. The paper proceeds as follows. Section II rehearses the main common arguments in favor and against derivative actions. Section III then turns to discuss the two main purposes the derivative action is usually said to serve, namely deterrence and compensation. Firstly, it explores the primary purposes for derivative actions in the US. Then it addresses the question under what circumstances can derivative actions increase the value of the company. This leads us to consider a third issue which is shareholders' commitment to a policy of suit. Section IV then assesses whether there is any viable role for derivative action in England in light of the discussions in sections II and III. As part of that, possible benefits of deterrence in public companies are explored.


 
Franke on Post Colonial Homophobia Katherine M. Franke (Columbia Law School) has posted Sexual Tensions of Post-Empire on SSRN. Here is the abstract:
    In this essay Katherine Franke examines two contemporary cites in which state efforts to eradicate the traces of empire and to resurrect an authentic post-colonial nation have produced sexual subjects that serve as a kind of existential residue and reminder of a demonized colonial past and absence. Looking first at post-colonial Zimbabwe, Franke argues that President Mugabe's aggressively homophobic policies have played a key role in fortifying his leadership as authentically African and post-colonial. Franke then turns to current efforts by the Mubarak government in Egypt to publically prosecute men for having sex with men. The Mubarak government has used homosexual show trials, first in security courts, and then in civilian courts, as a dry run for the reorganization of the Egyptian court system's jurisdiction over dissenters and outcasts.


 
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:
    We present a method to calibrate empirically the demand parameters in a merger simulation model by using brand-level profit margin data. While the approach can be generalized, we develop these ideas within an articular framework - the PCAIDS (proportionality-calibrated AIDS) model. We show that the brand-level margins effectively define product "nests" (products that are especially close substitutes) and substantially increase the flexibility of PCAIDS for modeling critical own- and cross-price elasticities. The model is particularly valuable for transactions at the wholesale level (where scanner data do not exist) and for geographic markets that span national borders (where comparable data may not be available), since other methods to derive elasticities, particularly those based on econometric estimation, may not be possible or may not be reliable.


 
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:
    This paper reconsiders the merits of at-large representation in municipal councils from a positive perspective. After briefly reviewing the normative justifications for at-large representation, I develop a voting model of a council election that includes some at-large representation and show that under this model a citizen's voting power is maximized when the number of at-large representatives is roughly the square root of the total number of representatives. This is the first positive model to establish the benefits of at-large representation and the only positive model of an election that produces such explicit recommendations. The voting model I employ is based on an earlier voting model developed by John Banzhaf that has been used in litigation several times. I provide both an explication of his model and a review and critique of its uses by the courts. I conclude the essay with a discussion of the legal and policy implications of these results.