Legal Theory Blog |
|
 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? (Eric Muller) --Law & Society Weblog (Group Blog) --The Leiter Reports (Brian Leiter) --Lessig Blog (Lawrence Lessig) --Marstonalia (Brett Marston) --Paper Chase @ Jurist (Bernard Hibbitts) --Political Arguments (Group Blog) --ProfessorBainbridge.com (Stephen Bainbridge) --Pea Soup (Group Blog) --Punishment Theory (Group Blog) --The Right Coast (Group Blog) --SCOTUS Blog (Group Blog) --Sentencing Law and Policy (Douglas Berman --Statutory Construction Zone (Gary O'Connor) --TaxProf Blog (Paul Caron) --Volokh Conspiracy (Group Blog) Websites of Interest +Arts and Letters Daily +Conference Alerts +Daily Whirl +fa.philos-l +Economic Theory News +Encyclopedia of Law and Economics +Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. Oddi) --Infothought (Seth Finkelstein) --IPKat (Jeremy Phillips and Ilanah Simon) --Law and Economics Blog (Greg Goelzhauser) --Law Dork (Chris Geidner) --Law Meme (Group Blog) --Lee Blog Edward Lee --Legal Ramblings (Steven Wu) --Lenz Blog (Karl-Friedrich Lenz) --Letters of Marque (Heidi Bond) --The Light of Reason (Arthur Silber) --Matthew Yglesias --philosophy.com (Gary Sauer-Thompson ) --Public Defender Dude --Rodger A. Payne's Blog --Southern Appeal (Group Blog) --Strange Doctrines/A> --Susan Crawford blog --A Taxing Blog (Group Blog) --That's News to Me (Group Blog) --Thoughts Arguments and Rants (Brian Weatherson) --Three Years of Hell to Become the Devil --The Trademark Blog (Martin Schwimmer) --Troppo Armadillo (Ken Parish) --Technology 360 --Tutissima Cassis (Nate Oman) --Unlearned Hand --Weatherall's Law (Kim Weatherall) --WENDY.SELTZER.ORG (Wendy Seltzer) --yin (Tung Yin) Legal Theory Programs & Websites --Arizona State Committee on Law and Philosophy --Cambridge Forum for Legal and Political Philosophy --Columbia Law School Center for Law and Philosophy --Columbia Legal Theory Workhsop --Georgetown University Law Center--Colloquium on Constitutional Law and Theory --Jurisprudence and Social Policy Program (U.C. Berkeley) --Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley) --NYU Colloquium in Legal, Political and Social Philosophy --Oxford Jurisprudence Discussion Group --Oxford Legal Philosophy --Oxford Centre for Ethics & Philosophy of Law --Queen's University Belfast Forlum for Law and Philosophy --Rutgers Institute for Law and Philosophy --UCLA Legal Theory Workshop --University of Pennsylvania Institute for Law and Philosophy --University College London: Colloquium in Legal and Social Philosophy --University of Chicago Law And Philosophy Workshops --University of Chicago: John M. Olin Program in Law and Economics Workshop --University of San Diego Institute for Law and Philosophy --University of Texas Law and Philosophy Program --Yale Law School: Legal Theory Workshop Links to Law School Workshops +Australian National University Faculty Events +Boston University +Buffalo +Columbia Center for Law and Economic Studies +Florida State +Fordham +George Mason +George Washington--IP Workshop Series +Georgetown Colloquium on Intellectual Property & Technology Law +Georgetown Law Workshops +Georgetown Law and Economics Workshop +Georgetown Law & Economics Workshop Series +Hofstra +University of Illinois +Lewis & Clark +Loyola Marymount +New York University +NYU Legal History Colloquium +Northwestern Law Colloquium +Oxford Law Events +Rutgers, Camden +Stanford Center for Internet & Society +Stanford Law School Olin Series +UCLA Colloquium +UCLA Legal History Workshop +UCLA Tax Policy --University of Chicago: John M. Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
|
Friday, April 30, 2004
Entry Level Hiring (Update #27, Last Updated on May 3) Information on entry level hiring still continues to come in. So far 61 law schools have reported. Email me at lsolum@sandiego.edu if you'd like to add to the list or if you have a correction. My thanks to everyone who has generously shared information with me so far. Here is are some interesting numbers:
Adam Chodorow (JD Virginia & LLM NYU) Linda Demaine (JD Arizona & PhD Psychology Arizona State) Aaron Fellmeth (JD Yale) Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford) Orde Kittrie (JD Michigan)
Donald Kochan (JD Cornell) Francine Lipman (JD UC Davis & LLM NYU)
Michael Scodro (JD Yale Law) Carolyn Shapiro (JD Chicago JD)
Bernadette Meyler (JD Stanford & PhD English UC Irvine)
Neil Siegel (JD & PhD Berkeley)
Michael Kang (JD Chicago & PhD Government Harvard) Julie Seaman (JD Harvard)
Curtis Bridgeman (JD & PhD Philosophy Vanderbilt) Jonathan Klick (JD & PhD Economics George Mason)
Amanda Tyler (J.D. Harvard)
Ethan Yale (JD Tulane & LLM NYU)
Lauren Willis (JD Stanford)
Stephanie M. Stern ( JD Yale)
Scott A. Moss (J.D. Harvard)
Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
David Stras (JD & MBA Kansas)
Jide Nzelibe (JD Yale)
John Oberdiek (JD & PhD Philosophy Penn)
Frank Pasquale (JD Yale & MPhil Oxford Politics)
Nicole Porter (JD Michigan)
Terry Turnipseed (JD & LLM Georgetown)
David Hoffman (JD Harvard) Duncan Hollis (JD Boston College)
Aric Short (JD Texas)
Jennifer Chacon (JD Yale) Carlton Larson (JD Yale) Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
Noah Zatz (JD Yale)
Adam Samaha (JD Harvard)
Clare Huntington (JD Columbia)
Erica Hashimoto (J.D. Georgetown)
David Law (JD Harvard & PhD Political Science Stanford) Lisa Ramsey (JD UCLA)
Josh Eagle (JD Georgetown) Joel Samuels (JD Michigan)
Melissa Waters (JD Yale)
Michael Dimino (J.D. Harvard)
Nancy Combs (JD Berkeley) Erin Ryan (JD Harvard)
John Radsan (JD Harvard) And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard). Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information! Values and Virtues at the University of Dundee I will be in Dundee Scotland this weekend attending the Conference on Values and Virtues at the University of Dundee. The conference on Values and Virtues: Aristotelianism in Contemporary Ethics begins today at the University of Dundee in Scotland and continues through May 2. Here is the program:
Friday Calendar
At SUNY Buffalo, Jack Schlegel, UB presents Notes Toward a General Theory of Civil Liability and the Escape from the Plaintiff's Lawyer's Nose At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective. At the University of Texas, the first day of a Conference on Constitutional Concepts. At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning. Conference Announcement: Homeland Security & Civil Liberties
Call for Papers: New Journal ethic@
Thursday, April 29, 2004
Classroom Technology Department The New York Times has a very interesting story discussing interactive classroom technology & Paul Caron of TaxProf Blog. Paul uses a device that permits students to take in-class quizzes. Here's an excerpt from the story:
Thursday Calendar
And at UCSD's Law, Economics, and Politics Series (with USD), Kim Scheppele presents States of Exception and the Temptations Of 9/11 on the UCSD campus. And also in the USD/UCSD LEP series, Eric Talley (USC) presents Corporate Governance, Executive Compensation and Securities Litigation on the USD campus. At Yale's Legal Theory Workshop, Kendall Thomas is speaking. At the University of Texas, Seana Shiffrin, UCLA, speaks to the Constitutional & Legal Theory Colloquium. Legal Theory Jobs Australian National University has an opening in Legal Theory. Here is the announcement. Muñoz on Madisonian Religious Liberty Vincent Phillip Muñoz (North Carolina State University - Department of Political Science & Public Administration) has posted James Madison's Principle of Religious Liberty (American Political Science Review, Vol. 97, No. 1, pp. 17-32, February 2003) on SSRN. Here is the abstract:
Wallace on the Publicity of Reasons R. Jay Wallace has posted The Publicity of Reasons. Here is a bit:
This is an intriguing thesis, which I have come to think is probably both correct and important. Call for Papers: BSET 2005
Conference Announcement: Feminist Philosophy in the Analytic Tradition
Call for Papers: Race, Ethnicity, Racism
Conference Announcement: Public Trust and Private Interest
Wednesday, April 28, 2004
Blogging from Oxford 2: Danny Priel at the Jurisprudence Discussion Group
As I am composing this post, I’m in Oxford at the Danson room in Trinity College. It is 8:00 p.m. on Tuesday, rather late for an event to begin in my opinion! Our speaker is Danny Priel (D.Phil. Candidate Oxford) and his topic is Farewell to the Exclusive-Inclusve Debate. The JDG papers are usually posted online and Priel’s paper is quite interesting: you can download it here. Indeed, Priel’s paper was so provocative, that I seem to have developed a renewed interest in the debate between inclusive and exclusive legal positivists—a result that Priel may consider perverse. Inclusive and Exclusive Legal Positivism Priel begins with some introductory remarks, noting the fact that even in Oxford, the debate between inclusive and exclusive legal positivism is considered to be “boring.” He then gets down to the paper. His paper begins with an elegant and concise summary of the principle positions in the inclusive-exclusive debate:
Raz’s Argument for Exclusive Legal Positivism Priel provides a very nice summary of Raz’s argument, which is worth quoting:
The Case for Inclusivism Priel also provides a less crystalline but nonetheless nifty summary of the case for inclusivism, identifying three lines of argument. What follows is a truncated version: Priel’s Argument Priel’s claim is that the debate between inclusivists and exclusivists is based on a false assumption:
Here is a slightly different version of my worry. Priel claims we don’t know what the “correct morality” is, but this claim is most plausible as applied to thin moral concepts (e.g. “right,” “good,” and “just,” but dubious in the context of thick moral concepts, such as “cruel” or “kind.” When it comes to thin moral concepts such as “justice,” there is a good deal of disagreement both among theorists and ordinary folk. But with respect to thick moral concepts, there is substantial more agreement, and especially strong agreement on the core or paradigm cases. Thus, we know that torture is cruel. Moreover, there are relatively fixed criteria for the application of many of the thick moral concepts. For an action to be cruel, it must inflict needless suffering. Of course, there may be borderline cases of cruelty, but many nonmoral concepts have borderline cases. An Example: The Death Penalty in 1850 Priel then provides an example. Suppose we were to discover that the best theory of morality holds that the death penalty is “cruel and unusual punishment.” Nonetheless, Priel maintains, we are likely to believe that a judge who upheld the death penalty in 1850 made a decision that is legally correct. And of course, if a trial judge were to have done otherwise in 1850, he would undoubtedly have been reversed on appeal. What is Priel’s positive account of such more terms like “cruel”:
Objections I won’t summarize the remainder of Priel’s paper, which dealt with a variety of potential objections to his position, including, for example, the possibility that moral norms might be included in the rule of recognition. In the question and answer period, I asked Priel about the two worries expressed above. What, for example, would Priel say about a variant on his 1850 death penalty case. Suppose that it is 1850 and a court of last resort decides a case involving a very unpopular criminal defendant who is sentenced to a punishment that would fall under the thick moral concept of cruel, for example, torture. The court is swayed by the pervasive anger at the defendant and upholds the sentence. Critics of the decision might say, “That decision was legally incorrect. The Constitution forbids actions that are properly classified as coming under the thick moral description “cruel. Torture is cruel. So this decision was wrong.” Replying to the question, Priel first noted that he could accept the point that trial judges are bound by precedent and simply alter his example so that it involved a court of last resort. This move is entirely fair, I think. He then noted that that the distinction between thick and thin moral concepts posed a more serious challenge to his position. Priel noted that his position assumes moral realism—a view that Priel believes is held in common by the participants in the inclusive-exclusive debate. [I believe that I’ve gotten this right, but I am not quite sure how wide in scope Priel’s attribution was meant to be.] Given moral realism, it can, in principle, turn out that everyone is wrong about a moral question, e.g. the question whether a given punishment is cruel But positivists, Priel argues, are committed to the view that in some important sense, when the whole legal culture believes that a punishment is not cruel, then it is not legally cruel. But one needs to be very precise here. No one needs to dispute the claim that when a court of last resort decides a case and that decision becomes final, then the decision is legally binding. And that has consequences. For example, the decision will bind the parties to the dispute and the precedent that is set will bind lower courts in a common law system. But none of that is inconsistent with the assertion that the decision made by the court of last resort was nonetheless mistaken as a matter of law. And if the basis for the mistake was that the court misapplied the thick moral concept of cruelty, then it would seem that the decision was incorrect because the court misapplied a moral standard. Of course, this argument may fail for the reasons Raz identifies, but Priel may not avail himself of this move, since it is his claim that Raz is mistaken to believe that terms like cruel are truly moral terms. Priel needs to argue that “cruel” as used in a constitutional provision that forbids “cruel punishments” is not a moral concept at all, but is instead a legal concept, for which the criteria that determine correct application are internal to the law and fixed by the conventions of legal practice. Priel's view would seem to lead to the conclusion that the legal meaning of cruel changes in the case where (1) the legal culture says that torture is not cruel in 1850, but (2) then says that this decision was mistaken. This would seem to lead Priel to the awkward conclusion that the later assertion that the 1850 decision was a mistake is itself “mistaken." Despite the legal communities attribution of legal mistake, there was not true mistake at all. Instead, the 1850 decision was correct, but the law changed. The change-in-law interpretation, it strikes me, misses the force of the claim that a court of last resort has made a legal mistake. There was also an interesting discussion of the question whether Priel’s argument generalizes to nonmoral concepts such as causation. If the entire legal culture believes at time T1 that X does not cause Y, but we later (time T2) discover that this belief was based on a scientific error, are we tempted to say that as used by courts, “cause-in-fact” is a legal concept and not a scientific concept and that the legal concept of cause changed between T1 and T2? Priel seemed willing to bite this bullet—arguing that the legal concept of cause may indeed be different than the scientific concept. Well, Priel is right about that, the concepts may be different, but that does not entail the conclusion that there was no legal mistake at time T1. Many more interesting questions were asked and answered, and I certainly learned from Priel’s paper and the very good discussion that followed. Blogging from Oxford, Part One: Foot on Morality and Goodness
I've been walking all day, and I only got an hour or two of sleep on the red eye from Los Angeles, but I find that I am not the least bit tired. Foot was my teacher twenty some odd years ago, and she is one of my intellectual heroes. So, I am looking forward to this with great anticipation and much fondness. Robert M. Adams has just come into the room, another former teacher of mine from UCLA, and a long-time colleague of Foot's. We both remark how glad we are to have made this event. Foot Begins After a short introduction, Foot says she doesn't know where to begin. She says she will say a little about where she is coming from. There has been a notorious battle, with R.M. Hare about the boo-hooray theory, which has received a brilliant restatement by Gibbard. Foot rejected the move to the sharp distinction between descriptive and evaluative propositions. She remembers when she rejected Hare's view. It was in a conversation with Elizabeth Anscombe in which she replied to an example that it was a mixture of description and evaluation. "What?," said Anscombe. That was the beginning of Foot's project. It is entirely wrong to contrast fact and value. In Natural Goodness, she tried to give an account of evaluation as a special kind of fact. She was helped in this by an article by Michael Thompson. It is a view that connects good with life in such a way that if there had been nothing alive, good would have had no application. Foot thinks that although good can be used in so many different ways--good roots of tries, good actions, good weather, and so forth--there would be no good without life. In a lifeless universe, there would be no good or bad of any kind. That's where I'm coming from, says Foot. Foot parenthetically notes that she is known for changing her views, but that she doesn't think the lecture she gives today involve any changes. The Paper So now, Foot begins her actual paper. Today's problem is the problem of the letter writer (introduced momentarily) who is in a tight corner. This problem comes from a marvelous book called "Dying We Live." It is a book of letters written home by anti-Nazis who were condemned to death. They were allowed to write letters home. They are very touching, some long, some short. She quotes a letter from a farm boy from the Sudetenland. He wrote, "Dear Parents, I must give you bad news. I am condemned to death. We would not sign up for the SS. Both of us would rather die than become a member of the SS. I know what they do." This letter writer is in a tight corner. Was this a rational choice? On what theory of practical rationality can the rationality of this choice be made out? How can it be rational to do what is totally inimical to one's own good? (Of course, it might not be a tight corner, because the remorse might be so bad that it would be worse to go on living. But one can get rid of this argument, by imagining an amnesia drug. Amnesia, says Foot, is a real phenomenon. There is no amnesia drug now, but I infer that the point of Foot saying that amnesia is a real phemenon is to insist on the legitimacy of her amnesia-drug countermove to the remorse argument.). So we have now returned to the main question. Foot now asks whether virtue ethics could help with the problem of the tight corner. Foot notes that she herself is not a virtue ethicist, unlike Rosalind Hursthouse, Michael Slote, and Christine Swanton. She is opposed to virtue ethics, which is now all the rage in moral philosophy. Why? Foot's Rejection of Virtue Ethics The idea of virtue ethics seems to be that the primary moral judgments are inner states and actions derive their moral status from these. Of course, when an action is judged morally, intentions must be judged. Foot gives the example of a medal for courage given to a Scotsman who fell off a pier while drunk and as a result saved a drowning man. This medal was wrongly given, she observes. But virtue ethics goes much further than this, as when Christine Swanton says that moral goodness is a matter of fine moral states. Foot briefly argues that this view problematic, noting that when Swanton tries to specify the innter state for justice, Swanton specifies the inner state as "sensitivity to the genuine demands of justice." (My paraphrase of Foot's paraphrase--not a quote from Swanton.) Foot left it there, but I assume she thought the audience would conclude that Swanton's specification of the inner state was circular. Foot then notes that justice is the difficult virtue for virtue ethics to handle. And surely Foot is right about that! Inner states (or what the agent feels), says Foot, are often irrelevant. For example, schadenfreude (joy at others pain) is not always entirely bad. Rather than inner states, Foot claims, it generally is the nature of actions that determine what should and should not be done. So, when Anscombe talked about the morality of promises, she didn't talk about inner states but rather discussed the importance of one person binding herself to another. Another example is theft: the wrongfulness of theft is about depriving others of what they need and not about an inner state. One reason why Foot says she dislikes virtue ethics is that it seems to forget how much we rely on law, order, and decent behavior. This is one way in which virtue ethics skews our thought. The danger of taking virtues as primary is that it suggests a (false) solution to the problem of the tight corner. It is tempting to think that virtues, being dispositions, manifest one's values and hence can explain why one acts contrary to self interest. It is tempting to suppose that the reference to values solves the problem of acting virtuously in the tight corner. Is the point of a virtue that the disposition to act well is something that is present, even in the tight corner? The point being that this would explain why one could act rationally by acting on the basis for the reason provided by the virtue. Foot then asks a question, which undermines this account of the virtue-ethical solution to the tight corner. Her question is: "Wouldn't it be rational to at least try to act contrary to the virtue?" Virtue ethics doesn't have a real solution to the problem of the tight corner. Foot was moving rather quickly here, and I may have missed an element of her argument. Are we in trouble? Once again, Foot moves back to the main question. Are we in trouble? That is, do tight corner cases pose a difficulty for our understanding of the relationship between rationality and morality. Foot says that her present thought is that we aren’t in trouble. That is, Foot is claiming that there is no problem to be solved. As Foot puts it, she now thinks that it is not right to think that there is a problem about goodness and happiness. So today's paper, Foot says, is about why we aren't in trouble. The tight corner, where happiness and morality seem to conflict is not truly a problem. Warren Quinn and the Priority of Morality and Rationality How did Foot arrive at her new position on this issue? Foot says that her thinking was helped by the work of Warren Quinn. Although I never had a course from Quinn, I spent a good deal of time in his office and I was a witness to his brilliant participation in one of Foot's graduate seminars. Coincidentally, the seminar (held about 15 years ago as I recall was also on the problem of rationality and morality. Rationality and Morality Now, Foot summarizes an argument of Quinn's (from Rationality and the Human Good and Putting Rationality in its Place. The structure of Quinn's argument is idiosyncratic. Most philosophers start with a theory of rationality and then move to morality--the idea is that morality must answer to rationality. As I understand Foot, she is making a point about the relative priority of rationality and morality. But Quinn suggests that we should count a theory of rationality as deficient if it would endorse a shameful action. In other words, Quinn is arguing that rationality must answer to morality. That is, Quinn claimed that morality has priority over rationality. Foot notes that Quinn's argument was directed at neo-Humean theories, such as (1) the theory that rationality aims at maximizing desire satisfaction and (2) the theory that rationality aims at the agent's well-being. On either theory, it would be possible for morally disgraceful actions to be recommended as rational. Foot paraphrasing Quinn then asks, “Why, if this were true, would we think rationality is so important?” Or as I might put it a bit differently, “How could rationality have priority if it could lead to the recommendations of disgraceful action?” That is, Foot says, the command does not go from rationality to morality; it goes the other way, from morality to rationality. Natural Goodness Foot then moves on to a new stage in her argument. She makes a point about method. Some might suggest that we could start with indubitable facts about actions that are good or bad. That is, our initial premise could be that we know that such and such is wrong. To this proposed way of proceeding, Foot says “No.” We do not need to begin with what I might call bare intuitions about what is good and bad. Why not? Foot explains that in her recent book Natural Goodness, she argued for criteria for goodness and badness. Foot starts with facts about human life, and proceeds to derive the criteria from these facts. As I interpret her, Foot is claiming that her account of natural goodness does not rest, at bottom, on our bare intuitions about clear cases of good and bad. If this is roughly right, Foot then asks, “How do things stand between happiness and goodness”? A person's goodness and their good can come apart (as in the tight corner cases). Earlier in her career, Foot tried to give a special conception of happiness to handle this problem, but she abandoned this solution. In this paper, Foot is offering an alternative account of the relationship of good and goodness. To illustrate her approach, she suggests that we think about plants and animals. In animals, good and goodness are not closely connected. The good animal (e.g. healthy and strong animal) can act in ways that are not for its own good. Healthy bees sting and die young. Acting the way a bee should act can be bad for the individual bee. Birds that defend their nest sometimes decoy a predator from the nest and are killed. Is it the same with human beings? Foot says, she thinks that it is. Happiness as One Virtue Among Many It may seem shocking that the good human would be harmed because of her goodness. But, says Foot, this is not a true problem. Human beings are like those bees. Being a good human does not guarantee that one acts for one's own good. Why then did Foot see the tight corner as a problem? Foot mistakenly believed that one's own good was part of the structure of rationality’as part of the foundation. But now, Foot says, we should look for one's good in the building. One's good is the aim of one of many virtues. Foot now introduces a bit of terminology. "V sub h" is the virtue of one's own happiness. "V sub o" is the virtue of other's happiness. Foot then elaborates a bit on “V sub o.” Consider the case where we wish for our children's good. What does this mean? Foot gives the example of a contest with prizes. You will wish your children should earn the prize--there is nothing wrong with having this hope. But one would not wish for one's children to experience the joys of torturing others. Nor would one wish that one's children would experience the pleasures of a perpetual childhood. Insofar as happiness is identified with human good, the idea of it cannot be derived in any simple way from the idea of pleasures. A Virtue Directed at Happiness Foot now returns to the idea of “V sub h,” comparing it to other virtues, as in “V sub c” = charity and “V sub j” = justice. Someone who has “V sub h” acts for his own happiness. Foot says this virtue has no name. Elaborating a bit more, she says that “V sub h” is a virtue placed among other virtues. Each virtue's content is defined in part by its relationship to the other virtues. That is, the scope of one virtue determines the scope of the others. One cannot do charity by giving away the money one owes to another. An act of V sub h cannot be an unjust act, because the scope of V sub h is determined in part by justice. And on that point, Foot ends her paper, followed by sustained applause. A Query About V sub h Foot is extraordinarily careful, so it is always wise to take some time to digest her ideas. I did have a thought or two about what I take to be the new and important idea in the pape “V sub h,” the virtue that is directed at happiness. Initially, I think it is quite interesting to suppose that there is a virtue concept that would seem to play a quite central role in human life, for which there is no name. Our language is rich with vice and virtue words, and it seems rather odd that a central virtue would be missing from our vocabulary. This initial thought lead to another. Foot's picture is that V sub h is one virtue among many. That it is one room in the house--to use Foot's metaphor. This picture of the relationship between virtue and happiness is quite different from Aristotle's picture--at least as I understand Aristotle’s view. The Aristotelian picture is that happiness is constituted by a life of faring well and doing well, which means a life lived in reasonably favorable circumstance in which one engages in action that is in accord with the virtues. To return to the metaphor of the house, a happy life would be a life lived in a house with rooms for all the virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest). Happiness, for Aristotle, was not just one room in the house. I asked Foot a question designed to get at the difference between her picture and Aristotle’s. “If one had all the other virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest) but lacked V sub h, what would be missing?” Foot’s answer began with her astonishment at the question: ?I?m surprised you asked that,? she said with the emphasis on that. At this point, I reverted to my undergraduate self, and thought for a moment, “Why did you ask that question, Solum?” Foot then noted that without happiness, a life would be empty. Consider, for example, a life lived in pursuit of celebrity, Foot suggested. This would be a dreadful life. I am sure that I am missing something important, because Foot’s answer did not seem fully responsive to my question. Someone who pursues celebrity, who puts external recognition far too high in the hierarchy of values would not, I think, be a person who does possess the full complement of the virtues. Caring too much for recognition by others is a vice that is distinct from not caring about one’s own happiness. Moreover, a person of practical wisdom would recognize that celebrity would be unsatifying as an end for one’s action--that it would not be a fruitful goal to pursue. Indeed, happiness can be thwarted by any of the particular vices, intemperance, bad temper, cowardice, and the rest. What my question was designed to elicit was some account of V sub h, that is, some account of what is distinctive about this virtue. I was trying to get Foot to say more about the content of “V sub h”. Foot did address this concern, by referring to the concept of “deep happiness.” Foot did not elaborate on what “deep happiness” is, but given what she did say, it would seem that deep happiness is related to the pursuit of projects that are truly worthwhile or significant. And of course, deep happiness does seem to require that one have a meaningful life plan that involves significant and worthwhile goals. There were many good questions, including one from Robert Adams. Finally, the time was up and the session ended. I was very happy to have had the opportunity to hear Foot once again! Philippa Foot remains a marvel to behold and I count myself as lucky to have learned so much from her. Lund & McGinnis on Lawrence v. Texas I have updated this post to correct a misinterpretation on my part of Lund & McGinnis, and also to suggest that their characterization of Barnett's position (as clarified) is incorrect. Anyone interested in constitutional theory should read this paper! And don't miss Randy Barnett's post on Lund & McGinnis.
I have only begun to think about this issue, but based on a cursory reading, McGinnis & Lund have an incomplete reply to the key element in Barnett's defense of Lawrence as articulated in his book, Restoring the Lost Constitution. Barnett does not claim that the Ninth Amendment creates rights against the states of its own force. As Lund & McGinnis recognize, Barnett's argument rests on the Privileges and Immunities Clause of the 14th Amnendment. Here is the "money" passage from Barnett's paper, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas:
In a footnote (footnote 129 on pages 43-44 of their paper), McGinnis and Lund contend that Barnett's position is that "the Ninth Amendment applies to state as well as federal laws." They contend that Barnett's position is that the Ninth Amendment is "incorporated" in the Privileges and Immunities clause. I am quite sure that this is not Barnett's position, but perhaps Barnett himself is in a better position to provide the textual evidence. It would be very odd indeed for the Ninth (which of its own force is a rule construction) to be incorporated as an "immunity" in the 14th. What would be much more plausible is that the conception of liberty and legitimate state power that is reflected in the Ninth Amendment is also reflected in the 14th. Let me emphasize that all of this is being done on the fly. A scholarly assessment of Barnett verus Lund & McGinnis would require much more work than I've done for the purposes of this post. McGinnis & Lund offer another argument, aimed at Barnett's distinction between liberty (outside the scope of the police power) and license (which may property be prohibited by government):
Tuesday, April 27, 2004
Gardner on Kutz John Gardner has a review of Christopher Kutz's book Complicity forthcoming in Ethics. You can download it here. And here is a taste:
Although his book is titled Complicity, Christopher Kutz does not compare and contrast these two modes of complicity. Nor does he explore either of them comprehensively. He focuses on one special case of complicity. It is the case in which people commit a wrong together that none of them commits in his or her own right. In such wrongdoing the only principal is a collectivity: a nation, a corporation, a team, a group. And the individuals who make up that collectivity are at most accessories to the collectivity’s wrong. Most of Kutz’s book is about the moral position of the individuals who make up the collectivity. Are they indeed complicit, and if so what follows? Conference Announcement: The Ethics of Global Warming
Tuesday Calendar
At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow. At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game. Monday, April 26, 2004
A Legal Scholar’s Journal, Part Two: Origins
On the Train to Oxford . . . I am composing this post on the train to Oxford. It just so happens that I had planned to be in the United Kingdom this week, for the conference on virtue ethics at the University of Dundee in Scotland. One of the disadvantages of doing the weekly Legal Theory Calendar is that I know about all the conferences and talks that I’m going to miss—leading to a very high regret quotient. But in this case, I felt quite fortunate, because I was able to plan to arrive in time to hear Philippa Foot, the distinguished moral philosopher, give a lecture entitled Happiness and Morality today. Thinking about Professor Foot (who I thought of as “Mrs. Foot,” no matter how un-PC that might be) takes me back more than twenty years . . . Dodd Hall . . . more than twenty years to the Philosophy Department at the University of California at Los Angeles. I still have very distinct memories of Foot’s course in metaethics. Along with Rogers Albritton, Tyler Burge, Thomas Hill, Greg Kavka, and Jean Hampton, Foot had a tremendous formative influence on my intellectual development. At the time, I recall being very attracted to Kantian moral philosophy, but Foot’s outlook on ethical theory must have struck a very deep chord. I still have a very vivid memory of the day that Foot introduced Elizabeth Anscombe’s essay Modern Moral Philosophy, an article that has had a profound influence on the direction of moral philosophy in the past fifty years. Anscombe’s article contained an important critique of Kantian and utilitarian approaches to moral philosophy. Of course, the objections that Anscombe made in 1958 are no longer state of the art. Both Kantians and utilitarians have developed clever, even brilliant replies, to her particular objections, but the sophisticated work of Derek Parfit, Samuel Scheffler, Onora O’Neill, Barbara Hermann, and Christine Korsgaard was still far in the future in late 50s and early 60s. Anscombe’s essay ended with the suggestion that moral philosophers look to Aristotle’s moral philosophy as an alternative to what looked like dead ends in the development of consequentialist and deontological moral theory. Virtue Ethics And sure enough, Anscombe’s suggestion was taken up, by Peter Geach (her husband), by Philippa Foot, and others. This early work lead to one of the most significant developments in contemporary moral philosophy—the emergence of what has come to be known as “virtue ethics.” (And virtue ethics has gone off in a very different direction than that take by Foot's work.) In the early 1980s, when I studied with Foot, it hadn’t yet become clear that virtue ethics was about to become a phenomenon, with dozens of books, hundreds and hundreds of articles, and conference after conference to follow. So while I was interested in virtue ethics and familiar with the key foundational articles, I found myself attracted to other ideas as I prepared to go to law school. I’d done a graduate seminar in Rawls’s political philosophy with Jean Hampton at UCLA, and while at Harvard Law School, I took advantage of the opportunity to take Rawls’s own course on his work. (To this day, Rawls remains a huge influence on my work.) If you’d asked me what my philosophical orientation was in 1984, the year I graduated from law school, I think I would have replied, “Rawlsian.” A Twist of Fate I might never have returned to virtue ethics, but for a twist of fate or two. One was the fact that my professional responsibility course at Harvard included a paper requirement, and it seemed quite natural for me to write a short paper on the implications of virtue ethics for legal ethics. But it was the second event that revived and intensified my interest in virtue ethics. I was invited to a conference on judicial selection at the University of Southern California in the late 1980s. My role was to comment on a paper by Fred Schauer (now at Harvard’s Kennedy School of Government but then at the University of Michigan). Schauer had written a very provocative essay, arguing that nonlawyers were qualified to become Justices of the United States Supreme Court—because the issues the Supreme Court decides are more political than legal in nature. I knew that I disagreed with that thesis. My first article [On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987)] was a critique of the indeterminacy thesis—the idea that law was politics. It seemed to me that judges ought to be selected for their possession of a set of moral and intellectual virtues—the ability to think through complex legal problems, common sense and good practical judgment, a dedication to the rule of law, as well as the general moral virtues—temperance, a good temper, courage, and so forth. The Birth of Virtue Jurisprudence And this quite naturally led me back to Philippa Foot and virtue ethics. My reply to Schauer [The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 Southern California Law Review 1730 (1988)] was the beginning of a project that continues today. I began to think systematically about the possibility of developing a theory of law that drew upon the framework of virtue ethics and worked out the consequences for normative jurisprudence. Phronesis and Equity But this wasn’t easy. There are now several different strands within virtue ethics. For example, there is a Humean strand associated with Michael Slote. But the dominant approach to virtue ethics among contemporary moral philosophers is Aristotelian (or neo-Aristotelian). This was the strand of virtue ethics to which I was drawn. One of the really nifty things about Aristotle’s ethics is his account of phronesis, the virtue of practical wisdom. This tied in nicely to my intuition that judges needed common sense and good practical judgment. I began to realize that Aristotle’s ideas about practical wisdom had strong echoes in the work of some of the legal realists. When I read Nancy Sherman’s book, The Fabric of Character, I could see an obvious connection between her notion of moral vision and Karl Llewellyn’s idea that good judging required situation sense. And all of this tied into Aristotle’s explication of equity in Book V Chapter 10 of the Nicomachean Ethics. This work resulted in a paper I gave at the annual meeting of the American Society for Political and Legal Philosophy [Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)]. The Problem of Justice Developing an account of phronesis and equity was really just a warm up exercise. I began to realize that virtue jurisprudence required a solution to a problem that many virtue ethicists have avoided. One could hardly claim to have developed a theory of judicial virtue without some account of the virtue of justice. But at this stage in the game, I realized that offering such an account was not going to be easy. I had read Bernard Williams’s famous article, which seemed to offer a devastating critique of Aristotle’s account of justice as a virtue. Moreover, I began to notice that philosophers tended to avoid Book V of the Nicomachean Ethics. I sat in on Gavin Lawrence’s course on Aristotle’s ethics at UCLA, and sure enough, he announced that we would not cover Book V. I sat in on Chris Korsgaard’s graduate seminar on Aristotle’s ethics at Harvard, and (no surprise to me by then), she did not cover Book V. Here’s the problem in a nutshell. Aristotle understands the moral virtues as a certain kind of disposition with respect to a morally neutral emotion. So courage is a disposition with respect to the morally neutral emotion of fear, and good temper is a disposition with respect to the morally neutral emotion of anger. Someone who is disposed to disproportionate fear has the vice of cowardice; someone who is disposed to react to danger without sufficient fear has the vice of rashness. Courage is a kind of mean between these two opposing vices. But justice doesn’t seem to fit this pattern. What is the morally neutral emotion? And what are the two opposing vices? Bernard Williams made a convincing case that what we call the virtue of justice doesn’t have a distinctive relationship with any emotion at all. Rather, justice seems to be the disposition to do what is just. And what is just, according to Williams, has to be given to us by some theory (e.g. a theory of distributive or corrective justice). Stuck I was stuck on this problem for quite some time—years, not hours, days, or weeks. I could see various possible solutions, but none of them seemed satisfactory. And I knew that this was not a new problem. Working out Aristotle’s views on justice was a notoriously difficult problem for Aristotle scholars and for contemporary neo-Aristotelian virtue theorists. In the next installment of A Legal Scholar’s Journal, I’ll say a bit more about the origins of the project and how I came to see a solution to the problem of justice. I’ve posted a guide to the installments in this series on the Legal Theory Annex. The next installment should be up in a few days. See you then! Monday Calendar
At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation. At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking. At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness' Correction, Jack Balkin's talk at Cardozo is tomorrow! Sunday, April 25, 2004
Legal Theory Calendar
At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation. At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking. At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness'
At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow. At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game.
And at UCSD's Law, Economics, and Politics Series (with USD), Kim Scheppele presents States of Exception and the Temptations Of 9/11 on the UCSD campus. And also in the USD/UCSD LEP series, Eric Talley (USC) presents Corporate Governance, Executive Compensation and Securities Litigation on the USD campus. At Yale's Legal Theory Workshop, Kendall Thomas is speaking. At the University of Texas, Seana Shiffrin, UCLA, speaks to the Constitutional & Legal Theory Colloquium.
At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective. At the University of Texas, the first day of a Conference on Constitutional Concepts. At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning. Legal Theory Lexicon: Holism
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. And by the way, good luck on your exams! The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region. Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting. Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.” Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts. Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull. Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles. At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”). Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity. Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level. Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency. Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local. Once, again, good luck on your finals! Welcome to the Blogosphere . . . to Mere Dicta, by Boalt Hall JD student & demographer Michael Anderson. Saturday, April 24, 2004
Download of the Week This week, the Download of the Week is Russell Korobkin's paper, A 'Traditional' and 'Behavioral' Law-and-Economics Analysis of Williams v. Walker-Thomas Furniture Company:
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Evolution: The Remarkable History of a Scientific Theory by the remarkable Ed Larson, the Pulitzer Prize Winning law professor from the University of Georgia. Here is some of the buzz about the book:
Friday, April 23, 2004
A Legal Scholar’s Journal, Part One: A Project Begins
As the project moves along, I’ll let you in on the writing process—the frustrations, the writer’s block, the breakthroughs, the good and bad days. Towards the end, you can follow the submission process, rejections and acceptances, deadlines, and requests for expedited review. This won’t all be fun. I rather imagine that some of the posts will be a bit cranky, and likely a number of them will reveal that the solitary business of writing a very long, very serious law review article can make one a bit goofy! The next installment of A Legal Scholar’s Journal will be on Monday, April 26. Part Two: Origins will take us back to the early 1980s and a classroom at the University of California at Los Angeles. You’ll meet a much younger Larry Solum, and an extraordinary group of undergraduates and graduate students at one of the world’s premier philosophy departments in one of its peak periods. You’ll meet Philippa Foot, Rogers Albritton, Tyler Burge, and two very fine political philosophers who died at tragically before their time—Greg Kavka and Jean Hampton. An index to A Legal Scholar’s Journal can be found over at the Legal Theory Annex. The index will allow you to navigate between the posts from one central location. Friday Calendar
At the University of Pennsylvania's philosophy series, Allen Wood (Stanford) presents Retributivism and Kant's Moral Theory. Thursday, April 22, 2004
Oops Looking through my unpublished draft posts today, I see that I forget to post a link to my own paper, The Aretaic Turn in Constitutional Theory. Better late than never! Conference Announcement: Virtues & Values at Dundee
Call for Papers: Virtue Epistemology
Thursday Calendar
At Stanford's Olin series, Russell Korobkin (School of Law, UCLA) presents A 'Traditional' and 'Behavioral' Law-and-Economics Analysis of Williams v. Walker-Thomas Furniture Company. Wednesday, April 21, 2004
Conference Announcement: Colonialism and Its Legacies in Chicago Jacob Levy will be at this, and its just a few minutes away from the APA Central Division!
Haviv-Segal on a Theory of Social Institutions Irit Haviv-Segal (Tel Aviv University - Buchmann Faculty of Law) has posted A Cost-benefit Theory of Social Institutions on SSRN. Here is the abstract:
Cohen on The Best Pharmaceuticals for Children Act I. Glenn Cohen (Law Clerk, U.S. Court of Appeals for the First Circuit) has posted Therapeutic Orphans, Pediatric Victims? The Best Pharmaceuticals for Children Act and Existing Pediatric Human Subject Protection (Food and Drug Law Journal, Vol. 58, No. 4, pp. 661-710, 2003) on SSRN. Here is the abstract:
Call for Papers: Multiculturalism and the Civil Society
Conference Announcement: Marx and Philosophy
Conference Announcement: Human Rights in the Age of Terrorism
Conference Announcement: Truth & Realism This event has a spectacular lineup!
Wednesday Calendar
Tuesday, April 20, 2004
Monday, April 19, 2004
Book Announcement
Balkin on the Second Amendment & Iraq I rarely post to blogospheric comments about Iraq (no legal theory connection), but check out this by Jack Balkin. Republicanism, constitutional theory, and Iraq--all in one post. Statutory Construction Blog The new installment of Gary O'Connor's fine Statutory Construction Zone is up! Entry Level Hiring I may regret this, but I am going to attempt to compile a list of entry level hires at American law schools. Now that the dust has settled, if you can report on entry level hires for your institution (or if you have been hired), send me an email at: lsolum@sandiego.edu. It will probably take about a month to compile all the results & I will probably repeat this plea for assistance several times. Thanks if you can help! Hasen on Money in Politics Check out Rick Hasen's editorial in the Los Angeles Times. Here's a taste:
Monday Calendar
At Vanderbilt's John Rawls Lecture Series, Chantal Mouffe presents John Rawls and the Limits of Liberal Pluralism. Also at Vanderbilt, in the Law & Business Seminar Series, Reinier Kraakman is speaking. At Loyola Marymount, James Konow, Professor, Department of Economics, LMU, presents Fairness Biases: The Effects of Stakes and Information. At NYU, Ziba Mir-Hosseini presents Islamic Law, Secularism, and Feminism: A New Relationship. At the University of Texas, Michael Dowdle, Chinese University of Hong Kong, presents Visiblizing the Invisible Hand. Spiwak on Telecom Policy Lawrence J. Spiwak (Phoenix Center for Advanced Legal & Economic Public Policy Studies) has posted The Telecoms Twilight Zone: Navigating the Legal Morass Among the Supreme Court, the D.C. Circuit, and the Federal Communications Commission on SSRN. Here is the abstract:
Plotkin on Software Patent Reform Robert Plotkin (Boston University - School of Law) has posted Computer Programming and the Automation of Invention: A Case for Software Patent Reform (UCLA Journal of Law and Technology, Vol. 7, 2003) on SSRN. Here is the abstract:
Bratton on Pari Passu Clauses William W. Bratton (Georgetown University Law Center) has posted Pari Passu and a Distressed Sovereign's Rational Choices on SSRN. Here is the abstract:
Lemmens and Miller on Human Subjects Trudo Lemmens and Paul B. Miller (University of Toronto - Faculty of Law and University of Toronto - Faculty of Law) have posted The Human Subjects Trade: Ethical and Legal Issues Surrounding Recruitment Incentives (Journal of Law, Medicine & Ethics, Vol. 31, pp. 398-418, Fall 2003) on SSRN. Here is the abstract:
Sunday, April 18, 2004
Legal Theory Calendar
At Vanderbilt's John Rawls Lecture Series, Chantal Mouffe presents John Rawls and the Limits of Liberal Pluralism. Also at Vanderbilt, in the Law & Business Seminar Series, Reinier Kraakman is speaking. At Loyola Marymount, James Konow, Professor, Department of Economics, LMU, presents Fairness Biases: The Effects of Stakes and Information. At NYU, Ziba Mir-Hosseini presents Islamic Law, Secularism, and Feminism: A New Relationship. At the University of Texas, Michael Dowdle, Chinese University of Hong Kong, presents Visiblizing the Invisible Hand.
At Stanford's Olin series, Russell Korobkin (School of Law, UCLA) presents A 'Traditional' and 'Behavioral' Law-and-Economics Analysis of Williams v. Walker-Thomas Furniture Company.
Legal Theory Lexicon: Fit and Justification
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise. The Basic Idea Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent." When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole. ? Fit What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification. Justification What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of rustication? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.] In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?" Two Kinds of Justification: Principle and Policy In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy. Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense. If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism. Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy. Conclusion It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question! And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts." Good luck on your final exams! Saturday, April 17, 2004
My Session at MPSA I'm speaking today at MPSA. Here are the details of the session:
Legal Theory Bookworm This week the Legal Theory Bookworm recommends The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman:
And here is some of the praise for this truly excellent book:
"A broad, clearly written, and lucidly argued reinterpretation of American constitutional history. . . . [It] deserves the attention of all students in the field."—Edward A. Purcell, Journal of American History "[This book] will enlarge any reader’s view of the Lochner era, even those who know their constitutional history well."—Herbert Hovenkamp, Constitutional Commentary "Gillman makes a persuasive argument for the revisionist theory of Lochner era. . . . No scholar has developed that thesis in such a sustained and systematic fashion. An important contribution to the literature."—David M. O’Brien, American Political Science Review "Must reading for legal scholars and historians who are interested in understanding the Lochner Era, the Supreme Court, and doctrinal change."—Roger Kahn, Journal of Politics "This book is of immense importance in the field of American constitutional history."—Michael Les Benedict, Ohio State University "Richly detailed and engagingly written. . . . Gillman contributes to an emerging post-Realist reconsideration of Supreme Court jurisprudence."—James C. Foster, Legal Studies Forum "An important work."—Mark Tushnet, Georgetown University Download of the Week This week the Download of the Week is Credible Coercion by Oren Bar-Gill and Omri Ben-Shahar. Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:
Friday, April 16, 2004
Legal Theory Calendar
MPSA's 62nd Annual National Conference continues today at the Palmer House Hotel in Chicago. Computer World on Internet Governance Stephen Bell has a short piece on Internet Governance entitled Internet governance debate heats up. Here is an excerpt from the introduction:
Mann on State Bankruptcy Legislation Ronald J. Mann (University of Texas at Austin - School of Law) has posted The Rise of State Bankruptcy-Directed Legislation (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
Thursday, April 15, 2004
In the Windy City: Midwest Political Science Association Today through April 18, I will be attending the MPSA's 62nd Annual National Conference, held at the Palmer House Hotel in Chicago. Several bloggers will be in attendance, including Jacob Levy, Randy Barnett, Dan Drezner, and Henry Farrell. Today at MPSA 6: Judicial Selection I'm always very interested in work on judicial selection:
Merit Selection Revised: The New Politics of Judicial Selection in Florida
Today at MPSA 5: The Rule of Law Revisited Another great topic:
The Rule of Law: An Indispensable Concept?
Today at MPSA 4: Creating Constitutional Institutions This panel features constitutional theory star Keith Whittington:
Coordination and Constitutional Change
Today at MPSA 3: The Supreme Court I was particularly interested in this session at MPSA.
Paper Toward an Independent Measure of Supreme Court Ideology
Today at MPSA 2: Political Liberalism Another interesting program at MPSA today:
Pluralism and Stability: The Case for "Political" Theory
Today at MPSA 1: Punishment Theory Among the interesting sessions at MPSA today, is this one on punishment:
Punishment and Democracy
Welcome to the Blogosphere . . . to TaxProf Blog by Paul Caron of the University of Cincinnati College of Law. Thursday Calendar
At the Penn Legal Theory Workshop Gopal Sreenivasan is presenting his paper, Duties and their Direction. At Georgetown's IP series, Arti K. Rai, Duke Law School, presents Open-Source Genomics and Biopharmaceutical Industry. At Michigan's law and economics series, Petra Moser, MIT, presents How Do Patent Laws Influence Innovation? Evidence from the Nineteenth-Century World Fairs. At George Mason, Nick Levin, Mayer, Brown, Rowe & Maw and GMU School of Law, presents The Nomos and Narrative of Matsushita. At UCLA's tax policy series, Joseph Hotz, UCLA Economics Department, presents The Effects of the EITC on the Employment of Low-Wage Populations: Are the Apparent Effects for Real? Today through April 18, the MPSA's 62nd Annual National Conference will be held at the Palmer House Hotel in Chicago. Bar-Gill & Ben-Shahar on Credible Coercion Oren Bar-Gill and Omri Ben-Shahar (The Society of Fellows, Harvard University; The John M. Olin Center for Law, Economics and Business, Harvard Law School and University of Michigan Law School) have posted Credible Coercion on SSRN. Here is the abstract:
Christie on Marine Resource Management Donna R. Christie (Florida State University - College of Law) has posted Marine Living Resources Management: A Proposal for Integration of United States' Management Regimes (Environmental Law, Vol. 34, 2004) on SSRN. Here is the abstract:
Harcourt on Gay and Lesbian Free Zones Bernard E. Harcourt (University of Chicago - Law School) has posted You Are Entering a Gay- and Lesbian-Free Zone: On the Radical Dissents of Justice Scalia and Other (Post-) Queers (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
Edelman on Studying the Supreme Court Paul H. Edelman (Vanderbilt University School of Law) has posted The Dimension of the Supreme Court on SSRN. Here is the abstract:
Mann on Payments Policy in the Information AGe Ronald J. Mann (University of Texas at Austin - School of Law) has posted Making Sense of Payments Policy in the Information Age on SSRN. Here is the abstract:
Ethics is Out The January 2005 issue of Ethics is out. It includes:
Holding Nations Responsible by David Miller Contractualism and Deontic Restrictions by Jeffrey Brand-Ballard Wednesday, April 14, 2004
Wednesday Calendar
At Villanova, Jeffrey Rachlinski, Cornell Law School, presents A Behavioralist Critique of Law & Economics. At Vanderbilt's Law and Business Seminar Series, Lynn Stout is presenting. At NYU's legal history series, Hendrik Hartog, Professor of History, Princeton, is presenting. Sunstein Values the Lives of the Poor Cass R. Sunstein (University of Chicago Law School) has posted Are Poor People Worth Less Than Rich People? Disaggregating the Value of Statistical Lives on SSRN. Here is the abstract:
A larger lesson follows. For purposes of law and politics, there is no sensible answer to the abstract question about the correct monetary value of human life. Any judgment about the appropriate VSL, and about individuation, must be heavily pragmatic; it must rest on the consequences of one or another choice. Whether government should use a higher or lower VSL across demographic lines cannot be answered simply. An important implication involves the assessment of VSL across nations. A poor nation would do well to adopt a lower VSL than a wealthy nation; for China or India, it would be disastrous to use a VSL equivalent to that of the United States or Can ada. But this point should not be taken to support the ludicrous proposition that for donor institutions, both public and private, risk reduction in a wealthy nation deserves more attention than equivalent risk reduction in a poor nation. Setear on Biology as International Destiny John K. Setear (University of Virginia School of Law) has posted Taking Both Biology and International Law Seriously: Evolutionary Biology, Neo-Realist Theories of International Relations, and the Promise(s) of International Law on SSRN. Here is the abstract:
Sebok on the 9/11 Fund Anthony J. Sebok (Brooklyn Law School) has posted What's Law Got to Do With It? Duty, Tort Doctrine and the 9/11 Victims Compensation Fund (DePaul Law Review, Vol. 53, No. 901, 2003) on SSRN. Here is the abstract:
Mann on Global Credit Card Policy Ronald J. Mann (University of Texas at Austin - School of Law) has posted Credit Card Policy in a Globalized World on SSRN. Here is the abstract:
Tuesday, April 13, 2004
Conference Announcement: BSET at Kent
Leiter on Chicago Brian Leiter's status report on faculty recruitment and retention at the University of Chicago is here. His bottom line:
Update: Jacob Levy reminds me that Andrei Marmour was effectively 1/2 time at the Chicago law faculty until he moved to USC. Marmour provided Chicago with a strong presence in philosophy of law. Charles Larmore has picked up some of the slack, but Larmore is known more for his work in political and moral philosophy and is not a true philosophy of law specialist. Tuesday Calendar
At the University of Texas, Hans Baade, UTLaw, presents Transplants of Laws and Lawyers. At Vanderbilt, Ellen Smith Pryor, presents Integrating Lawyers and 'Real' Case Files into Upper Level Classes. Karlan on Lawrence Pamela S. Karlan (Stanford Law School) has posted Loving Lawrence on SSRN. Here is the abstract:
White on Asbestos Litigation Michelle J. White (University of California, San Diego) has posted Resolving the 'Elephantine Mass' (Regulation, Vol. 26, No. 2, pp. 48-54, Summer 2003) on SSRN. Here is the abstract:
Sunding on Wetland Regulation Reform David Sunding (University of California, Berkeley - The Richard & Rhoda Goldman School of Public Policy) has posted An Opening for Meaningful Reform? (Regulation, Vol. 26, No. 2, pp. 30-35, Summer 2003) on SSRN. Here is the abstract:
Seidenfeld on the Penalty Default Canon Mark Seidenfeld (Florida State University College of Law) has posted Pyrrhic Political Penalties: Why the Public Would Lose Under the "Penalty Default Canon" (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
Monday, April 12, 2004
Madison Reviews Volokh Michael J. Madison (University of Pittsburgh School of Law) has posted The Lawyer as Legal Scholar (University of Pittsburgh Law Review, Vol. 65, No. 63, 2003) on SSRN. Here is the abstract:
Monday Calendar
At Alabama, Jim Chen, of the University of Minnesota, presented Biodiversity and Biotechnology: A Misunderstood Relation. Conference Announcement: Justifications and Excuses Rutgers-Camden School of Law, which has been developing close ties with the superstar laden Rutgers-New Brunswick philosophy department, has created a new Institute for Law and Philosophy. The Institute is putting on its first program, a conference on justifications and excuses, with luminaries like Larry Alexander, Michael Moore, and Stephen Morse from law and New Brunswick philosophers Jeff McMahan and Doug Husak. Congratulations to Kim Ferzan for putting this together!
Today at Stanford: Internet Governance
Conference Announcemnt: State of the Tax System
Law and Culture at DeNovo DeNovo has another installment in their symposium series. Here are the first day's essays: Sunday, April 11, 2004
Legal Theory Calendar
At Penn's PPE program, Thomas Pogge is presenting World Poverty: Explanations and Responsibilities. At the University of Texas, Hans Baade, UTLaw, presents Transplants of Laws and Lawyers. At Vanderbilt, Ellen Smith Pryor, presents Integrating Lawyers and 'Real' Case Files into Upper Level Classes.
At Villanova, Jeffrey Rachlinski, Cornell Law School, presents A Behavioralist Critique of Law & Economics. At Vanderbilt's Law and Business Seminar Series, Lynn Stout is presenting. At NYU's legal history series, Hendrik Hartog, Professor of History, Princeton, is presenting.
At the Penn Legal Theory Workshop Gopal Sreenivasan is presenting his paper, Duties and their Direction. At Georgetown's IP series, Arti K. Rai, Duke Law School, presents Open-Source Genomics and Biopharmaceutical Industry. At Michigan's law and economics series, Petra Moser, MIT, presents How Do Patent Laws Influence Innovation? Evidence from the Nineteenth-Century World Fairs. At George Mason, Nick Levin, Mayer, Brown, Rowe & Maw and GMU School of Law, presents The Nomos and Narrative of Matsushita. At UCLA's tax policy series, Joseph Hotz, UCLA Economics Department, presents The Effects of the EITC on the Employment of Low-Wage Populations: Are the Apparent Effects for Real? Today through April 18, the MPSA's 62nd Annual National Conference will be held at the Palmer House Hotel in Chicago.
Legal Theory Lexicon: Virtue Jurisprudence
This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory. Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post. Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy. Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics. An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of ProfessorBainbridge.com) are just two of a growing number of legal scholars who have discussed virtue ethics in their work. Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following: A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.
Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging. We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them. There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office. What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices. The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.
Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice. Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner. Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law. Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis. This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom. An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind. Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it. A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions: Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice. Saturday, April 10, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press page here) by Ran Hirschl (University of Toronto, Political Science). Here is a description:
Download of the Week This week, the download of the week is The Efficient Design of Option Contracts: Principles and Applications by Avery Katz. Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:
Friday, April 09, 2004
Friday Calendar
Also at the University of Texas, Julian Bond, NAACP, speaks in the Thurgood Marshall Distinquished Speaker Series on How Affirmative Action Affects Race Relations in this Country:Brown to Now. At SUNY Buffalo, Barry Boyer and Lynda Schneekloth, UB, presents Hydropower and Empowerment: Community Participation in Alternative Licensing Proceedings. Thursday, April 08, 2004
Legal Theory Calendar
At Yale's Legal Theory Workshop, Tracy Meares (University of Chicago) presents "When Two or Three Come Together". Here is a taste:
Although these words were used by some participants as a particular kind of religious justification for their activities, these words have additional significance for at least three reasons: (1) They are an indication of the upside potential of building community capacity to resist crime and to complete other goals and projects of community residents; (2) They are a key to understanding why the invocation of religious text in the particular context that we will describe holds out the promise of changing the perceptions that community residents hold regarding the legitimacy of the local police in particular and of local government in general: (3) And finally, they suggest the potential downside to faith-based initiatives. That downside is this -- the very success of such programs may so depend on an overt demonstration of religiosity that the law and norms supporting the concept of separation of church and state are hopelessly transgressed. At Michigan's law and economics series, Alan Schwartz, Yale, presents A Normative Theory of Business Bankruptcy. At George Mason, James Swanson, the Heritage Foundation, presents Judicial Speech and the First Amendment. At UCLA's tax series, Ken Sokoloff & Eric Zolt, present Taxation & Inequality: Evidence from the Americas. At Stanford's Olin Series, Rob Daines (School of Law, New York University) presents Liquidity and Mandatory Disclosure:The Impact of the 1934 Securities Act. Conference Announcement: Equality
Book Announcement: Wolin on Intellectuals & Facism
Bebchuk on Shareholder Access Lucian Arye Bebchuk (Harvard Law School) has posted Designing a Shareholder Access Rule on SSRN. Here is the abstract:
Dewhurst, Hamption, and Shiner on Delegation as a Source of Law Dale Dewhurst , David Hampton and Roger A. Shiner (University of Alberta , Independent and Okanagan University College) have posted Delegation as a Source of Law (Ratio Juris, Vol. 16, pp. 56-88, March 2003). Here is the abstract:
Nelson on Auditing Mark W. Nelson (Cornell University - Samuel Curtis Johnson Graduate School of Management) has posted A Review of Experimental and Archival Conflicts-of-interest Research in Auditing on SSRN. Here is the abstract:
Wednesday, April 07, 2004
Mortenson on Retributivism and Execution Julian Davis Mortenson has posted Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause (Iowa Law Review, Vol. 88, No. 1099, 2003) on SSRN. Here is the abstract:
Gervais on Standard Internet Licensing Terms Daniel J. Gervais (University of Ottawa - Common Law) has posted Standard Internet Licensing Terms on SSRN. Here is the abstract:
Katz on Option Contract Design Avery Wiener Katz (Columbia Law School) has posted The Efficient Design of Option Contracts: Principles and Applications on SSRN. Here is the abstract:
Bell and Parchomovsky on Property Abraham Bell and Gideon Parchomovsky (Bar-Ilan University - Faculty of Law and University of Pennsylvania Law School) have posted What Property Is on SSRN. Here is the abstract:
Golan v. Ashcroft Check out the Packets squib of the latest District Court ruling in Golan v. Ashcroft, the suit challenging the retroactive restoration of copyright to foreign works that fell out of copyright for failure to comply with the U.S. formalities. Here's a short excerpt:
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the eighth and final post on Lessig's book--a sort of blogospheric book club. If you haven't been reading along, you can navigate back to the first posts using the links at the top and bottom of each of the eight posts. Conclusion The conclusion of Free Culture begins with the story of AIDS drugs and patent. Enforcing patents on AIDS drugs makes them effectively unavailable in the third world. Hence, it is argued that third-world nations should either suspend these patents or regulate prices. Of course, AIDS is a human tragedy, and a solution to the problem of pricing must be found. But it simply was not clear to me that this story really connects with the the themes of "Free Culture." the AIDS-drug patent problem is an intellectual property problem, but is is not a Free Culture problem. Frankly, I think Lessig lost momentum by using this example. Lessig then shifts to a new story--this one about the cancellation of the proposed World Intellectual Property Organization (WIPO) conference on public goods that would have included discussion of open source software. Once again, Lessig is right that U.S. pressure (or Microsoft) pressure to cancel the conference was not in the public interest, but again this is only tangentially a story about Free Culture. When I reached the end of the conclusion, I was quite disappointed. Chapter Ten of Free Culture was so good. I was primed for a solution--for some way out of the terrible problems created by the relentless expansion of copyright at the expense of the public domain (and the public interest). But wait, the afterword is still to come! Afterword I don't know why Lessig reserved his positive program for the "Afterword" of Free Culture, but he did. His vision of the future begins with the model offered by the open-source software movement:
Stallman?s technique was to use copyright law to build a world of software that must be kept free. Software licensed under the Free Software Foundation?s GPL cannot be modified and distributed unless the source code for that software is made available as well. Thus, anyone building upon GPL?d software would have to make their buildings free as well. This would assure, Stallman believed, that an ecology of code would develop that remained free for others to build upon. His fundamental goal was freedom; innovative creative code was a byproduct. Stallman was thus doing for software what privacy advocates now do for privacy. He was seeking a way to rebuild a kind of freedom that was taken for granted before. Through the affirmative use of licenses that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed.
Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at Stanford University. Its aim is to build a layer of reasonable copyright on top of the extremes that now reign. It does this by making it easy for people to build upon other people?s work, by making it simple for creators to express the freedom for others to take and build upon their work. Simple tags, tied to human-readable descriptions, tied to bulletproof licenses, make this possible.
Why would a publisher ever agree to this? I suspect his publisher reasoned like this: There are two groups of people out there: (1) those who will buy Cory?s book whether or not it?s on the Internet, and (2) those who may never hear of Cory?s book, if it isn?t made available for free on the Internet. Some part of (1) will download Cory?s book instead of buying it. Call them bad-(1)s. Some part of (2) will download Cory?s book, like it, and then decide to buy it. Call them (2)-goods. If there are more (2)-goods than bad-(1)s, the strategy of releasing Cory?s book free on-line will probably increase sales of Cory?s book. Indeed, the experience of his publisher clearly supports that conclusion. The book?s first printing was exhausted months before the publisher had expected. This first novel of a science fiction author was a total success. The third installment of the Legal Theory Bookclub on Free Culture mentioned a Washington Post article which reported some very interesting research by Strumpf and Oberholzer (economists at Harvard and the University of North Carolina). John Eden emailed me a link to the actual study. Here is an abstract:
The core idea is quite simple. Demand for music is elastic. Price goes up; demand goes down. Consumption of music has increased massively because of P2P filesharing. The net effect, Strumpf and Oberholzer argue, is slight increase in the sale of recorded music. Some people switch from CDs to free downloads, but slightly more sample and then purchase. And millions and millions benefit from free downloads. Of course, this study may eventually be discredited or superceded. And video or print may be different than recorded music. The point is that the economics are not yet clear; the market itself may cause the content industry to reverse its stand on P2P. Back to the Formalities The first half of Lessig's solution can be implemented by individuals and will be implemented if the market incentives are just right. The second half of his solution is the restoration of copyright formalities, i.e., registration, notice, and renewal. And of course, the system of formalities post-Internet can give us more and better for less. The copyright notice can provide a key to an online registration system. Online registration and renewal will be less expensive. And the online registration system will permit rapid resolution of the question whether a particular work is in the public domain and, if it isn't, who the owner is. Once such a system were established, we would expect that a whole secondary industry would be established that would take a commission for processing various transactions (e.g. licensing of various uses of copyrighted works). Lessig makes a variety of other proposals, including importantly, shorter copyright terms. How long should copyright terms be? I suspect that the optimal term is very short indeed--perhaps as short as five years. It is almost inconceivable that the optimal term is longer than the 20 year term for patents. Lessig also proposes some kind of mandatory licensing scheme for content that is no longer "in print." And what about the P2P problem. Lessign endorses the kind of scheme suggested in various forms by William Fisher, Neil Netanel, and others:
In this regard, it is very important to remember that price competition does work for copyrighted works. If the latest CD by the most popular group cost too much (in the days before P2P), consumes would simply purchase another CD. In the new world of for-pay online music, there will be price competition, because there is substantial cross-elasticity of demand between and among various musical recordings. Exhaustion Well, I should have know when I started that exhaustion would set in by the time I got to the end of this first installment of the Legal Theory Bookclub. I hope you've enjoyed the experiment. I know I did. I think Lessig has written an important book; it is certainly a very fine read. I have some complaints. Lessig tells lots of stories, but makes few sustained arguments. He has lots of proposals, but they come at the very end of the book and they are underdeveloped. Some themes from early in the book seem to disappear towards the end. I hope that Lessig will work up a more scholarly and analytic version of the central ideas in Free Culture. But despite these complaints, I am very glad that I read Lessig's new book. It is exciting, creative, and moving--qualities that are almost vanishingly rare in writing by academics. The Schedule Wednesday Calendar
At Australian National University's RSSS, Janet Hope, RSSS, presents Open Source Biotechnology. Justice Stevens at San Diego Today The Honorable John Paul Stevens, Associate Justice of the Supreme Court of the United States, will deliver the 20th Lecture in the Nathaniel L. Nathanson Memorial Lecture Series today at 5:30 p.m. on the USD Campus. Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the seventh 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. I am posting this one day late (please forgive me), but back dating it so that readers can find it on the day it was supposed to be posted. Eldred Chapter Thirteen of "Free Culture" is entitled "Eldred," and just the title is exciting. Lessig argued Eldred v. Ashcroft in the Supreme Court. He lost, but I certainly want to know about his take on the case. Eldred was about the Copyright Term Extension Act, the eleventh extension of copyright terms in forty years. Because of the CTEA, virtually no works will pass into the public domain until the year 2019. That's because when Congress extends copyright terms it usually does it both prospectively and retroactively--to works that are already in existence. Since Congress has done this multiple times, an argument can be made that Congress has violated the constitutional requirement that copyright terms be for "limited times." Here is how Lessig puts the point:
Lessig then turns back the clock and takes us inside the reasoning that led him to argue Eldred as he did. Lessig believed that the Rehnquist Court might well strike the CTEA down. His reasoning was based in part on the so-called new federalism cases (Lopez and Morrision) in which the court struck down the Gun Free School Zones Act and the Violence Against Women Act on the basis that these statutes exceeded Congress's power under the commerce clause of the Constitution. And there certainly was a connection between the issue in Eldred and the other new federalism cases, but there were differences as well. When the Supreme Court struck down the federal statutes at issue in Lopez and Morrison states were free to fill in the gap, but the states would not have been free to act in the "gap" left open if Lessig had persuased the Court in Eldred. States could not have extended terms, either prospectively or retrospectively. The New Federalism cases are about limiting Congressional power, but they are also about state power. In other words, there are principled distinctions between the New Federalism cases and Eldred. Lessig then makes a very important point about the commercial value and the public domain. Retroactive copyright extension applies to all works, whether they are being exploited commercially or not. Most of the works that would now be entering the public domain have no commercial value. In fact, that's a massive understatement. Only a tiny fraction of the works that are covered by the CTEA have any commercial value at all. Almost all of the films, novels, magazines, newspapers, sound recordings, etc., etc., from the twenties are entirely dormant. Indeed, many of these properties now have fragmented or lost ownership. But the CTEA effectively prevents these commercially worthless works from being digitalized and stored for posterity. Lessig doesn't use this phrase, but I will. This is a crime against human culture. It is shocking and even evil. Lessig then turns to the story of the Eldred litigation. How the arguments were framed, what strategic and tactical choices were made, and how he now views those choices. If you are interested in copyright, this is must reading. I won't summarize it here, but I will say that it was utterly gripping and compelling. Lessig then gets to the great obstacle to his challenge to retroactive extensions of copyright--historical practice. Here is how he puts it:
There was some truth to the government’s claim, but not much. We certainly agreed that Congress had extended existing terms in 1831 and in 1909. And of course, in 1962, Congress began extending existing terms regularly—eleven times in forty years. But this “consistency” should be kept in perspective. Congress extended existing terms once in the first hundred years of the Republic. It then extended existing terms once again in the next fifty. Those rare extensions are in contrast to the now regular practice of extending existing terms.Whatever restraint Congress had had in the past, that restraint was now gone. Congress was now in a cycle of extensions; there was no reason to expect that cycle would end. This Court had not hesitated to intervene where Congress was in a similar cycle of extension. There was no reason it couldn’t intervene here. Lessig had another option available to him. He could have argued that Congress had done something unprecedented, it had, for the very first time, exceeded the constitutional requirement that copyright be granted for limited times. But isn't 120 years or author's life plus 70 year's a "limited time"? I don't think so. I believe that the phrase "limited times" must be interpreted in context, e.g. the context of granting rights to authors. Authors are humans; they live for decades, not centuries. Terms that are in excess of the longest human lives are not "limited terms" in this context. The rest of Chapter Thirteen recounts the immediate aftermath of Eldred and Lessig's intense satisfaction with the decsion--who can blame him. I found these passages quite interesting, but they are written (quite naturally) from the perspective of a losing advocate. Eldred was a poorly written opinion, but it had an internal logic that Lessig does not capture. This unlucky chapter draws to a close on a depressed note. Eldred II Chapter Fourteen is titled "Eldred II." It begins with Lessig's idea to require a $1 registration fee to continue a copyright after 50 years. This is a terrific idea, although it doesn't go far enough. First, the initial period is much too long. Reregistration should be required periodically--perhaps as frequently as every ten years starting ten years after the initial registration and the fee should be nontrivial (perhaps $100 indexed for inflation in $25 increments). Lessig's proposal got quite a bit of attention, but the MPAA squashed it like a bug. The MPAA offered a variety of reasons for their opposition to the reregistration requirement, but the real reason is quite simple. Inevitably, someone will screw up and a valuable motion picture would have passed into the public domain when the 50 year period hit. Lessig's proposal offered nothing to the film industry and it imposed a small (but not insignificant) cost. So it went down in flames. Tomorrow Tomorrow, we finish! The Schedule Tuesday, April 06, 2004
Tuesday Calendar
The annual conference of the Socio-Legal Studies Association will be held April 6-8, 2004 at the School of Law at the University of Glasgow. For information visit www.law.gla.ac.uk/slsa2004/. Monday, April 05, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the sixth 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. Chimera Chapter Eleven is entitled "Chimera," and it refers to the unusual condition where two eggs fuse, resulting in a person with two sets of DNA (so that the DNA from cells found in saliva might differ from the DNA in skin cells). Lessig uses the chimera to introduce the idea that there are two sides to the P2P story. (I am all for analogies, but for the life of me I could not figure out how this one helped use to understand the point.) Here is Lessig's summary:
But the description is also false in part. For when my p2p server is on a p2p network through which anyone can get access to my music, then sure, my friends can get access, but it stretches the meaning of “friends” beyond recognition to say “my ten thousand best friends” can get access. Whether or not sharing my music with my best friend is what “we have always been allowed to do,” we have not always been allowed to share music with “our ten thousand best friends." Likewise, when the other side says, “File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out with it,” that’s true, at least in part. If, after Lyle Lovett (finally) releases a new album, rather than buying it, I go to Kazaa and find a free copy to take, that is very much like stealing a copy from Tower. But it is not quite stealing from Tower. After all, when I take a CD from Tower Records, Tower has one less CD to sell. And when I take a CD from Tower Records, I get a bit of plastic and a cover, and something to show on my shelves. (And, while we’re at it, we could also note that when I take a CD from Tower Records, the maximum fine that might be imposed on me, under California law, at least, is $1,000. According to the RIAA, by contrast, if I download a ten-song CD, I’m liable for $1,500,000 in damages.) Harms Chapter Twelve is titled "Harms." This chapter seems to make a number of small points. One of them is a repeat of the point made earlier in the book that the fair use defense runs into the very high costs of defending against an infringement action. Another point is that the RIAA has become relatively effective at using the legal system to force ISPs to identify customers who "upload" content to P2P systems. But then Lessig comes up with a doozy of a story, one with which I was not familiar. The first part of the story is about how Vivendi-Universal successfully sued and then bought MP3.com. But the second part is more interesting:
The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in the press) was to send an unequivocal message to lawyers advising clients in this space: It is not just your clients who might suffer if the content industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly.
And Lessig's next story is the tragic story of Congress's decision to impose crippling mandatory fees on Internet radio:
This financial burden is not slight. As Harvard law professor William Fisher estimates, if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be over $1 million a year.14 A regular radio station broadcasting the same content would pay no equivalent fee.
This last point of Lessig's (which he examines from several angles at the end of the chapter) is intuitively plausible, and I "buy it." I think that Lessig is right. But as someone who has made this argument myself, I am also aware that it has certain weaknesses. In particular, it is difficult to prove and/or predict the complex causal chains that result when there is a mismatch between norms and laws. Yes, it seems plausible to believe that turning milliions of citizens into criminals would undermine respect for the law, but is this really the case. Perhaps, ordinary citizens are capable of distinguishing between those laws which cohere with social norms and those that don't. So it might be the case that criminalizing P2P has the effect of sensitiizing millions of Americans to the phenomenon of overcriminalization--of using the law to criminialize behavior that is accepted by prevailing social norms. Is it necessarily the case that this is a bad thing? I believe it is, but I don't know how to prove that thesis. Tomorrow Tomorrow, we cover Chapters Thirteen and Fourteen. The Schedule New at Law Meme & Ackerman on the Emergency Constitution LTB readers will undoubtedly want to check out the new feature at LawMeme:
Monday Calendar
Also at Vanderbilt, Pauline Kim presents The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking. And finally at Vanderbilt today, the Law & Business Seminar Series has Paul Spindt, presenting Wanna Dance? How Firms and Underwriters Choose Each Other. Today at William and Mary, there is a conference entitled The Death Penalty and International Law. At New York University, Kenji Yoshino (Yale, Visiting NYU) is presenting. Legal Theory Calendar
Also at Vanderbilt, Pauline Kim presents The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking. And finally at Vanderbilt today, the Law & Business Seminar Series has Paul Spindt, presenting Wanna Dance? How Firms and Underwriters Choose Each Other. Today at William and Mary, there is a conference entitled The Death Penalty and International Law. At New York University, Kenji Yoshino (Yale, Visiting NYU) is presenting.
At Australian National University's RSSS, Janet Hope, RSSS, presents Open Source Biotechnology.
At Yale's Legal Theory Workshop, Tracy Meares (University of Chicago) presents "When Two or Three Come Together". At Florida State, Lynn Baker, University of Texas School of Law, presents Federalism and the Spending Power. At Michigan's law and economics series, Alan Schwartz, Yale, presents A Normative Theory of Business Bankruptcy. At George Mason, James Swanson, the Heritage Foundation, presents Judicial Speech and the First Amendment. At UCLA's tax series, Ken Sokoloff & Eric Zolt, present Taxation & Inequality: Evidence from the Americas. At Stanford's Olin Series, Rob Daines (School of Law, New York University) presents Liquidity and Mandatory Disclosure:The Impact of the 1934 Securities Act.
Also at the University of Texas, Julian Bond, NAACP, speaks in the Thurgood Marshall Distinquished Speaker Series on How Affirmative Action Affects Race Relations in this Country:Brown to Now. At SUNY Buffalo, Barry Boyer and Lynda Schneekloth, UB, presents Hydropower and Empowerment: Community Participation in Alternative Licensing Proceedings. Legal Theory Lexicon: Textualism
Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. As always, the Legal Theory Lexicon is designed for law students—especially first year law students—with an interest in legal theory. Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate: The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we will try to avoid that enterprise. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.). But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries. In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience. Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions about meaning. Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning. Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history. The same difficulties that afflict lawyers are plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.” Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose. Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite! Sunday, April 04, 2004
Legal Theory Calendar
Saturday, April 03, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Profiles, Probabilities, and Stereotypes by Fred Schauer (Harvard, Kennedy School of Government). Schauer is one of the smartest and most interesting legal scholars, and this book is his take on the problem of generality and justice--indeed "Generality and Justice"--was the original title of the book. You can take a virtual book tour on the K-School website, click here. Here is a description:
Download of the Week This week the Download of the Week is a very interested paper by Adrian Vermeule, entitled The Judiciary Is a They, Not An It: Two Fallacies Of Interpretive Theory. Here is a taste:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:
Friday, April 02, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the fifth 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. Property Chapter Ten is titled property, and it begins with the story of Jack Valenti's relentless and successful lobbying effort to give copyright holders property rights that are the equal of property rights in tangible resources. Lessig quotes Valenti, and the quote is worth repeating:
Lessig's strategy is different. He focuses on history, not economics. He wants to convince us that thick and perpetual property rights in information are outside our tradition--they would be new, radical, a break with history, an innovation, outside the norm, unusual, unprecedented. The first piece of evidence that Lessig offers is the Constitution:
Market--the operation of property and pricing. Norms--social attitudes enforced through informal sanctions and rewards. Architecture--the software or hardware that determines what is technologically possible (speed pumps and the layered nature of the Internet are both "architecture" in this sense.
Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years.
Back to Architecture And then Lessig flips back over to the relationship between law and architecture. And I think that this next point is very important. Lessig argues that the architecture of the Internet (or digitalization, because the same effect would have occurred without the Internet) is to change the relationship between use and copying. Pre-internet use did not equal copying; post-internet, due does equal copying:
But the same book as an e-book is effectively governed by a different set of rules.Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner’s wish. And digitalization creates the possibility that the creators of digital works can build control in the work itself. Lessig gives the frightening example of the permissions that can be built into an Adobe E-book:
The control comes instead from the code—from the technology within which the e-book “lives.” Though the e-book says that these are permissions, they are not the sort of “permissions” that most of us deal with.When a teenager gets “permission” to stay out till midnight, she knows (unless she’s Cinderella) that she can stay out till 2 A.M., but will suffer a punishment if she’s caught. But when the Adobe eBook Reader says I have the permission to make ten copies of the text into the computer’s memory, that means that after I’ve made ten copies, the computer will not make any more. The same with the printing restrictions: After ten pages, the eBook Reader will not print any more pages. It’s the same with the silly restriction that says that you can’t use the Read Aloud button to read my book aloud—it’s not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won’t read aloud. Lessig then goes on a riff about media con (the concentration of media ownership, which leads him to the BIG POINT of Chapter Ten: Never in our history have fewer had a legal right to control more of the development of our culture than now. In other words, the architectural and legal changes made in response to P2P and the threat posed by digitalization to copyright are like DDT in the ecology of creativity. DRM plus the DMCA plus media con threaten the vibrancy of our cutlure. Well, as Lessig himself says, Chapter Ten was long. I'm going to think over the weekend, and we will get back together on Monday. For now, all I can say is that I haven't done this Chapter justice. It is a tour de force. One of the most effective pieces of legal writing I have read. Monday The book club will resume on Monday with Chapters Eleven and Twelve. The Schedule Friday Calendar
And, it is a very good day for legal theory events, as John Gardner's visit to the University of Texas continues today with the Leon Green '15 Lecture in Jurisprudence. Thursday, April 01, 2004
Raz on Exclusive Naturalism Joseph Raz (Oxford) has posted Exclusive Naturalism (forthcoming Oxford Journal of Legal Studies) on SSRN. Here is the abstract:
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the fourth 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. Founders Chapter Six tells a historical story about the emergence of what Lessig calls the "Progress Clause," the clause in the United States Constitution that grants Congress legislative power over copyright and patent. This part of the story will be very familiar to copyright scholars and lawyers, but Lessig's retelling is concise and informative--from the royal printing monopolies through the Statute of Anne to the Lessig's climax, the decision in Donaldson v. Beckett, which effectively abolished perpetual copyright terms:
Recorders Chapter Seven is titled "Recorders." It begins with the story of Jon Else's attempt to get clearance for 4 1/2 seconds of a Simpson's episode that appeared on a television set in one scene of a documentary about the making of a Ring Cycle in San Francisco. In the end, Else was told that it would cost $10,000 to use the four seconds. Of course, these four seconds were undoubtedly fair use. But if Else were sued, it would cost even more than $10,000 to successfully assert the fair use defense. So Else had to use special effects to replace the Simpson's in the 4 1/2 seconds of his documentary. Well that story got my juices flowing! As I was thinking about the story, it occurred to me that there is a very good case for fee-shifting for successful fair-use defenses--perhaps with a bonus to give adequate incentives for contingency fair-use defense representation. Else had another option, of course--a declaratory relief action. This has a nifty advantage over asserting the fair use defense from a defensive posture. If you lose the declaratory relief action, then the party that is unreasonably contesting fair use cannot recover anything against you--because you haven't yet copied. The conclusion to the Chapter makes it clear what the point of the Else story is:
Transformers Chapter Eight is titled "Transformers." It tells the story of Alex Arben's success in getting clearances for many, many Clint Eastwood clips for a retrospective DVD on Eastwood's career. It took a huge effort, but not only was Arben successful in getting permission, he also was able to convince all the other actors who appeared in the clips to take the nominal day-rate for their performances. Does this story contradict the lesson drawn in the previous chapter?
Collectors Chapter Nine is titled "Collectors." It begins with the story of the Internet Archive and its famous Way Back Machine. What a tremendous resource! And what a contrast with television, where no comparable archive exists and access to most of the history of television is virtually impossible to obtain. My friend and fomer colleague Sheila Kuehl (now a California State Senator) played Zelda on the Dobie Gillis Show. I remember how fortunte Sheila felt that she had been able to obtain copies of two episodes of the show, because in many cases even television actors and directors have no means of obtaining copies of their own work--if it was done before the VCR. The point of the chapter is that a tremendous public good could be created if works are allowed to into the public domain:
Tomorrow I will continue tomorrow with Chapter Ten. The full schedule of posts is set out below. The Schedule Thursday Calendar
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. Shaw on the New Constitutional Treaty for the EU Jo Shaw (University of Manchester, School of Law) has posted Flexibility in a 'Reorganised' and 'Simplified' Treaty - A Practical Proposal on SSRN. Here is the abstract:
Scott & Stephan on Self-Enforcing International Agreements Robert E. Scott and Paul B. Stephan III (University of Virginia School of Law and University of Virginia School of Law) have posted Self-Enforcing International Agreements and the Limits of Coercion on SSRN. Here is the abstract:
Philipson and Dai on Patent Competition Tomas Philipson and Carolanne Dai (University of Chicago and University of Chicago) have posted Between- vs. Within-Patent Competition (Regulation, Vol. 26, No. 3, pp. 42-48, Fall 2003) on SSRN. Here is the abstract:
Wasserman on Section 1983 Procedure Howard M. Wasserman (Florida International University College of Law) has posted Civil Rights Plaintiffs and Joe Doe Defendants: A Study in Section 1983 Procedure (Cardozo Law Review, Vol. 25, No. 793, 2003) on SSRN. Here is the abstract:
McNamar on New Technology & Enron R.T. McNamar (Cato Institute) has posted New Technology Can Help Avoid A Second Enron (Regulation, Vol. 26, No. 3, pp. 62-67, Fall 2003) on SSRN. Here is the abstract:
Willis on Corporate Reporting in the Information Age Mike Willis (PricewaterhouseCoopers LLP) has posted Corporate Reporting Enters the Information Age (Regulation, Vol. 26, No. 3, pp. 56-60, Fall 2003) on SSRN. Here is the abstract:
Conference Announcement: The Second Amendment
Call for Papers: Bull Moose Republicans
|