Legal Theory Blog

40 Years of Social Science in Legal Scholarship: Continuities and Changes

Forty Years of Jury Research

Author Meets Reader: Social Citizenship and Workfare in the United States and Western Europe: The Paradox of Inclusion, by Joel Handler

Innovative Approaches to Legal Theory

Reconceptualizing the Role of Judges: Past, Present, and Future

Cyberlaw and Cyberspace

Norms and Contracting Practices

Courts and Democratic Politics: On the Team or On the Sidelines?

Posted by Lawrence Solum at 5/28/2004 09:51:00 AM

Denning and Ramsey on Executive Preemption in Foreign Affairs Brannon P. Denning and Michael D. Ramsey (Cumberland School of Law and University of San Diego School of Law) have posted American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

In American Insurance Association v. Garamendi, the U.S. Supreme Court invalidated California's Holocaust Victim Insurance Relief Act (HVIRA), which required insurance companies doing business in California to disclose all policies they or their affiliates sold in Europe between 1920 and 1945. According to the Court, the state's law unconstitutionally interfered with the foreign affairs power of the national government. The decision was easily overlooked in a Term filled with landmark cases dealing with affirmative action and sexual privacy. What coverage the case did receive emphasized its federalism aspects, and excited little reaction because the result seemed intuitively appropriate given the federal government's interest in conducting foreign affairs. We argue in this paper, however, that Garamendi is more important - and problematic - when seen as a case about separation of powers. In particular, we argue that the decision expands presidential control over foreign affairs, not only at the expense of the states, but also and more critically at the expense of Congress and the Senate. This arises from the Court's invention of a novel constitutional power of executive preemption - that is, an independent ability of the President to override state laws that interfere with executive branch policies in foreign affairs. Until Garamendi, no one had thought that a mere executive branch policy, unsupported by the formal or even tacit approval of any other branch, could have the effect of preemptive law. As a result, one need not be a defender of foreign policy federalism, nor a critic of executive foreign affairs powers, to have grave reservations about the decision's implications for separation of powers, federalism and constitutional theory. It is uncontroversial that state laws and policies must give way to the foreign affairs objectives of the national government. The critical question, though, is how these overriding federal goals are developed and identified. We argue that the Garamendi decision has at least three separate and substantial ill-effects upon this process. First,executive preemption conveys to the President the power to decide which state laws affecting foreign affairs survive and which do not. This concentrates foreign affairs power in the President in a way not contemplated by the Constitution's Framers, who sought to separate executive power from legislative power. Second, Garamendi seemed to make executive agreements the functional equivalents of congressional statutes; this functional equivalency may hasten the decline of the treaty as a foreign policy-making tool, with a concomitant decline in the opportunities for Congress - the Senate, in particular - to shape foreign policy. Third, the decision implicated the relationship between the states and the federal government in foreign affairs, but did so in a way that provided essentially no guidance for the future. Part I of this Article discusses the factual setting of the Holocaust insurance claims that formed the background of the case. Part II outlines the constitutional law of federal-state relations in foreign affairs as it stood before the Garamendi decision. Part III describes the Supreme Court's decision, and points out its discontinuity with prior decisions. In Part IV we turn to the troubling structural implications of Garamendi, which we regard as occurring primarily in the field of separation of powers. We conclude that the Court ended up far from the text, structure and history of the Constitution. In Part V we address the decision's implications for federalism, particular the dangers of concentrating preemptive power in the executive branch. Part VI relates the Garamendi case to the wider theoretical debates of modern foreign affairs law and constitutional interpretation. In contrast to other federalism and separation of powers cases, the Garamendi Court paid little attention to text or structure in analyzing the constitutional questions presented. More surprising, perhaps, is the Court�s complete lack of interest in what light history might shed on the foreign affairs issues before it. But neither is Garamendi an exercise in common law doctrinal evolution, because it owes essentially nothing to prior cases or practice, except as rhetorical cover. Garamendi's near-exclusive attention to loose interpretations of prior case law and its lack of sensitivity to text, history, and structure, suggest to us a danger in common law constitutional interpretation as a preferred approach to constitutional interpretation and adjudication in foreign affairs controversies. Download it while its hot!

Posted by Lawrence Solum at 5/28/2004 09:50:12 AM

Bainbridge on LLC Veil Piercing Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Abolishing LLC Veil Piercing on SSRN. Here is the abstract:

Courts are now routinely applying the corporate law doctrine of veil piercing to limited liability companies. This extension of a seriously flawed doctrine into a new arena is not required by statute and is insupportable as a matter of policy. The standards by which veil piercing is effected are vague, leaving judges great discretion. The result has been uncertainty and lack of predictability, increasing transaction costs for small businesses. At the same time, however, there is no evidence that veil piercing has been rigorously applied to effect socially beneficial policy outcomes. Judges typically seem to be concerned more with the facts and equities of the specific case at bar than with the implications of personal shareholder liability for society at large. A standard academic move treats veil piercing as a safety valve allowing courts to address cases in which the externalities associated with limited liability seem excessive. In doing so, veil piercing is called upon to achieve such lofty goals as leading LLC members to optimally internalize risk, while not deterring capital formation and economic growth, while promoting populist notions of economic democracy. The task is untenable. Veil piercing is rare, unprincipled, and arbitrary. Abolishing veil piercing would refocus judicial analysis on the appropriate question - did the defendant - LLC member do anything for which he or she should be held directly liable?

Posted by Lawrence Solum at 5/28/2004 08:54:35 AM

Revesz & Stavins on Environmental Law & Policy Richard L. Revesz and Robert N. Stavins (New York University School of Law and Harvard University - John F. Kennedy School of Government) have posted Environmental Law and Policy on SSRN. Here is the abstract:

This paper, which is a preliminary draft of a chapter for the forthcoming Handbook of Law and Economics (edited by A. Mitchell Polinsky and Steven Shavell, and to be published by North-Holland/Elsevier Science), provides an economic perspective of environmental law and policy with regard to both normative and positive dimensions. It begins with an examination of the central problem in environmental regulation: the tendency of pollution generators in an unconstrained market economy to externalize some of the costs of their production, leading to an inefficiently large amount of pollution. We examine the ends of environmental policy, that is, the setting of goals and targets, beginning with normative issues, notably the Kaldor-Hicks criterion and the related method of assessment known as benefit-cost analysis. We examine this analytical method in detail, including its theoretical foundations and empirical methods of estimation of compliance costs and environmental benefits. We include a review of critiques of benefit-cost analysis, briefly examine alternative approaches to analyzing the goals of environmental policies, and survey the efforts of the Federal governmental to employ these analytical methods. The paper also examines in detail the means of environmental policy, that is, the choice of specific policy instruments, beginning with an examination of potential criteria for assessing alternative instruments, with particular focus on cost-effectiveness. The theoretical foundations and experiential highlights of individual instruments are reviewed, including conventional, command-and-control mechanisms, economic incentive or market-based instruments, and liability rules. In the economic-incentive category, we consider pollution charges, tradeable permit systems, market friction reductions, and government subsidy reductions. Three cross-cutting issues receive attention: implications of uncertainty for instrument choice; effects of instrument choice on technological change; and distributional considerations. We identify a set of normative lessons in regard to design, implementation, and the identification of new applications, and we examine positive issues, including three phenomena: the historical dominance of command-and-control; the prevalence in new proposals of tradeable permits allocated without charge; and the relatively recent increase in attention given to market-based instruments. Finally, the paper turns to the question of how environmental responsibility is and should be allocated among the various levels of government. We provide a positive review of the responsibilities of Federal, state, and local levels of government in the environmental realm, plus a normative assessment of this allocation of regulatory responsibility. We focus on three arguments that have been made for Federal environmental regulation: competition among political jurisdictions and the race to the bottom; transboundary environmental problems; and public choice and systematic bias.

Posted by Lawrence Solum at 5/28/2004 08:42:49 AM

Anderson on Intuitions in Moral Theory James Anderson (University of San Diego) has uploaded A Critical Role for Intuitions in Moral Theory. Here is the abstract:

The justificatory role of intuitions in moral reasoning has long been a source of controversy. The problems of intuitionism and empty formalism can be avoided by understanding moral intuitions as nonreflective, but justifiable, moral judgments operating in a model of reflective equilibrium that brings to light the rational structure underlying all moral judgments. One objection to this says that requiring only coherence between intuitions and principles is tantamount to subjectivism. A defense is found in an analogy with the linguistic theory of universal grammar, suggesting an innate capacity to learn how to recognize and make moral judgments. As with language, socially-structured environmental stimulus will determine which moral intuitions we possess. The feminist critique of traditional moral theory can be interpreted in this light: the central values of traditional theory enshrine the moral intuitions possessed by those who were socialized for life outside the domestic sphere.

Posted by Lawrence Solum at 5/28/2004 08:40:52 AM

Setiya on Hume on Practical Reason Kieran Setiya has uploaded Hume on Practical Reason (forthcoming in Philosophical Perspectives). Here is a taste:

It is true that Hume is not an instrumentalist. And there is a sense in which he is a sceptic about practical reason. But the sense is more interesting, and more subtle, than the crudely sceptical reading allows. There are ways of interpreting "practical reason" on which Hume will argue that there is no such thing. But his claim is less radical than it seems. For what he really rejects is a rationalist conception of practical reason. As I will try to show, he does not reject the idea of practical reason altogether. Matters are complicated by the fact that Hume himself is unwilling to speak of "reason" except when a rationalist interpretation is in play, or when he is "speaking with the vulgar" in Book Three. But part of my claim is that we have to be careful in translating from the Humean idiom to our own. Hume's picture of practical reason is not a picture of what he would call "reason" (not even in the "vulgar" sense), but it is a picture of practical reason nonetheless.

Posted by Lawrence Solum at 5/28/2004 08:09:12 AM

Basinger on Religious Pluralism David Basinger's article entitled Religious Diversity (Pluralism) is now available on the Stanford Encyclopedia of Philosophy. Here is a taste:

With respect to many, if not most issues, there exist significant differences of opinion among individuals who seem to be equally knowledgeable and sincere. Individuals who apparently have access to the same information and are equally interested in the truth affirm incompatible perspectives on, for instance, significant social, political, and economic issues. Such diversity of opinion, though, is nowhere more evident than in the area of religious thought. On almost every religious issue, honest, knowledgeable people hold significantly diverse, often incompatible beliefs. Religious diversity of this sort can fruitfully be explored in many ways � for instance, from psychological, anthropological, or historical perspectives. The current discussion, however, will concern itself primarily with those key issues surrounding religious diversity with which philosophers, especially analytic philosophers of religion, are most concerned at present. Specifically, our discussion will focus primarily on the following questions: How pervasive is religious diversity? Does the reality of this diversity require a response? Can a person who acknowledges religious diversity remain justified in claiming just one perspective to be correct? If so, is it morally justifiable to attempt to convert others to a different perspective? Can it justifiably be claimed that only one religion offers a path into the eternal presence of God? The answers to such questions are not simply academic. They increasingly have great impact on how we treat others, both personally and corporately.

Posted by Lawrence Solum at 5/28/2004 08:04:39 AM

Faguet on Altruism and Empire Jean-Paul Faguet (London School of Economics - Development Studies Institute & Centre for Economic Performance) has posted Building Democracy in Quicksand: Altruism, Empire and the United States (Challenge, Vol. 47, No. 3, pp. 73-93, June 2004) on SSRN. Here is the abstract:

The new era of US empire commenced with decisive military victories in Afghanistan and Iraq. But the aftermath of war has proved surprisingly difficult and violent. Explanations of the US's failure to win the peace have largely overlooked the inherent difficulty of planting democracy in so inhospitable a social environment as Iraq's. This paper examines the prospects for US empire, focusing on the problem of nation building, and in particular the role of a well-functioning civil society in making democracy work.

Posted by Lawrence Solum at 5/28/2004 07:59:03 AM

Mullin & Malani on Joint & Several Liabily's Effect on Bankruptcy Charles Mullin and Anup Malani (Vanderbilt University - Department of Economics and University of Virginia - School of Law) have posted The Effect of Joint and Several Liability on the Bankruptcy Rate of Defendants: Evidence from Asbestos Litigation. Here is the abstract:

If two defendants share a joint and several liability and the first becomes insolvent, his unpaid liabilities are reallocated to the second. While the second defendant's assets may cover its share of liability, they may not cover the first defendant's share. Thus, the one defendant's insolvency may trigger the other's. We quantify this externality in the context of asbestos-related torts. We choose this example because 61 companies with major asbestos liabilities have gone bankrupt since 1982 and nearly 8,000 other companies have been named in asbestos suits. Using data from 10-K forms and asbestos trials, we estimate that payments on asbestos claims grew 5 - 10 percent annually - over 150 percent total - during 1990 - 2002 due to the bankruptcy of jointly liable defendants. We discuss the implications for the priority of tort claimants in bankruptcy and piecemeal tort litigation as a compensation mechanism for mass torts.

Posted by Lawrence Solum at 5/28/2004 07:50:30 AM

Thursday, May 27, 2004

Internet Governance Department If you haven't already done so, take a look at ICANN grows up at last by Kieren McCarthy in The Register. Here is a taste:

What has really prevented out-and-out fury, however, is the budget document. It is, simply, beautifully constructed. ICANN is under new management and there has been a sea-change in its mindset. Gone is the shameless arrogance and empire building of the previous incumbents. Under the new head, Paul Twomey, we have got away from petulant IT types and entered the realm of diplomats and government types. Twomey is creating an institution. And he has three years to do it. If ICANN isn't solid and respected and entrenched by then, the whole organisation could be at risk. The budget document makes this clear to anyone who understands what is going on and it does so with refreshing clarity. The ICANN of old left a trail of vague legal-speak and a few bad-tempered comments before telling you how much it had decided to spend this year. The new approach is forward-looking, positive, honest, coherent, clear. It's no wonder people like it. The problem is that it contains little real justification for the vast increase in resources it has decided to award itself.

Posted by Lawrence Solum at 5/27/2004 09:21:07 PM

Rappaport on O'Connor Over at The Right Coast, Mike Rappaport has a very nice post on Justice O'Connor's view of federalism. Here is a taste:

Recently, the Supreme Court decided another important federalism case, Tennessee v. Lane. In Lane, the Supreme Court held that Title II of the ADA (that is, the Americans with Disabilities Act) was authorized by section 5 of the 14th Amendment. By contrast, in a 2001 case, Board of Trustees of the University of Alabama v. Garrett, the Supreme Court had held that Title I of the ADA was not authorized by the 14th Amendment. So the 14th Amendment authorizes Title II but not Title I. Why? Because Justice O'Connor says so. But why does Justice O'Connor say so? Always a good question, but this time, at least, I think there is answer. In my view, Justice O'Connor is employing the following federalism principle: The Constitution should not be interpreted to completely eviscerate federalism limitations, but short of that Congress can do pretty much what it wants.Surf on over to read the rest!

Posted by Lawrence Solum at 5/27/2004 05:39:55 PM

Thursday Calendar

40th Anniversary Author-Meets-Readers (1994): Law and Hierarchy Through the Lens of History -- Laws Harsh As Tigers, by Lucy Salyer; and Law, Labor, and Ideology in the Early American Republic, by Christopher Tomlins

Lawyers and Social Movements: Political and Legal Advocacy

Property as Information

Language and Law 1: Juries and Problems of Language

Liberties in the Age of the Crusade Against Terrorism

Law and Society Meets Law and Economics

The Ethical Analysis of Law

DEMOCRACY AND PLURALISM Conference

Reasons for Acting, Wanting, Admiring, Believing,....

Posted by Lawrence Solum at 5/27/2004 10:08:56 AM

Co on Section 337 Patent Cases Catherine Y. Co (University of Nebraska at Omaha - Department of Economics) has posted How Valuable are the Patents Behind Section 337 Cases? (The World Economy, Vol. 27, No. 4, pp. 525-539, April 2004) on SSRN. Here is the abstract:

A US patent protects the owner of the intellectual property from imitators producing in the US and foreign imitators selling in the US market. There are two venues for filing infringement cases against international infringement of US patents, with the International Trade Commission (ITC) using Section 337 of the Tariff Act of 1930 or with federal district courts. Three indicators of patent value suggest that patents litigated under Section 337 are on average more valuable; however, their values tend to be more variable. The latter suggests that some firms may be using Section 337 not for protection against international infringement of US patents but for protection against imports.

Posted by Lawrence Solum at 5/27/2004 10:05:35 AM

Baicker and Jacobson on Forfeiture Katherine Baicker and Mireille Jacobson (Dartmouth College - Department of Economics and University of California, Irvine - Department of Planning, Policy and Design) have posted Finders Keepers: Forfeiture Laws, Policing Incentives, and Local Budgets on SSRN. Here is the abstract:

In order to encourage anti-drug policing, both the federal government and many state governments have enacted laws that allow police agencies to keep a substantial fraction of assets that they seize in drug arrests. By adjusting their own allocations to police budgets, however, county governments can effectively undermine these incentives, capturing the additional resources for other uses. We use a rich new data set on police seizures and county spending to explore the reactions of both local governments and police to the complex incentives generated by these laws. We find that local governments do indeed offset the seizures that police make by reducing their other allocations to policing, undermining the statutory incentive created by the laws. They are more likely to do so in times of fiscal distress. Police, in turn, respond to the real net incentives for seizures, once local offsets are taken into account, not simply the incentives set out in statute. When de facto policies allow police to keep the assets they seize, they seize more. These findings have strong implications for the effectiveness of using financial incentives to solve agency problems in the provision of public goods in a federal system: agents respond to incentives, but so do intervening governments, and the effectiveness of federal and state laws in influencing agents' behavior is limited by the ability of local governments to divert funds to other uses.

Posted by Lawrence Solum at 5/27/2004 10:02:53 AM

Wednesday, May 26, 2004

Conference Announcement: Democracy & Pluralism

Wednesday, June 2nd

Thursday June 3rd

Posted by Lawrence Solum at 5/26/2004 12:35:12 PM

Eric Muller on Legal Advice & Interrogation in Iraq I am impressed by the Eric Muller's very measured post, here.

Posted by Lawrence Solum at 5/26/2004 09:45:57 AM

Wednesday Calendar

Justifications and Excuses: Legal and Philosophical Perpsectives

Did Workers Pay for the Expansion of Products Liability Law?

Reasons for Acting, Wanting, Admiring, Believing,....

the link to download Sasha's paper

Posted by Lawrence Solum at 5/26/2004 08:37:37 AM

Layers Principle Hits the Stands The Layers Principle: Internet Architecture and the Law by Minn Chung and myself is now available in print (79 Notre Dame L. Rev. 815 (2004)) and on Westlaw. For some commentary, you can surf here, here, and especially from Ed Felten here. You can listen to the audio of a talk I gave at Stanford here.

Posted by Lawrence Solum at 5/26/2004 08:30:36 AM

Ellerman on Property Theory David Ellerman (University of California, Riverside - Department of Economics) has posted Introduction to Property Theory on SSRN. Here is the abstract:

A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand function of the market, the market mechanism of appropriation. Does this mechanism satisfy an appropriate normative principle? The normative principle of assigning or imputing legal responsibility according to de facto responsibility is developed on individualist-subjectivist principles in what is essentially a modern explication of the Lockean theory. Then the fundamental theorem of the property mechanism is proven which shows that if Hume's conditions (no transfers without consent and all contracts fulfilled) are satisfied, then the market automatically satisfies the Lockean responsibility principle, i.e., Hume implies Locke. As a major application, the results in their contrapositive form, Not Locke implies Not Hume, are applied to a market economy based on the employment contract. It is shown the production based on the employment contract violates the Lockean principle (all who work in an enterprise are de facto responsible for the positive and negative results) and thus Hume's conditions must also be violated in the marketplace (in spite of the labor contract, de facto responsible human action cannot be transferred from one person to another as is readily recognized when and employer and employee together commit a crime).

Posted by Lawrence Solum at 5/26/2004 08:25:21 AM

Tuesday, May 25, 2004

Justifications and Excuses at Rutgers At the Rutgers-Camden Institute for Law and Philosophy, today and tomorrow, there is a conference entitled Justifications and Excuses: Legal and Philosophical Perpsectives. Here are the papers with links:

The Epistemic Dimension of Self-Defense

Lesser Evils: A Closer Look at the Paradigmatic Justification

On the Supposed Priority of Justification to Excuse

Consequentialist Justifications Within Deontological Ethics: The Royal Road to Objects of Categorical Obligation

Equality and Individuation: The Case for Juries and Determinate Sentencing

Posted by Lawrence Solum at 5/25/2004 07:52:42 PM

Hatch on the Compromise The Washington Times has a story titled Bush deal for court nominees irks conservatives, but real meat of the story is actually a quote from Senator Hatch:

Hatch is correct of course. The so-called compromise was really no compromise at all, as I argued in a post titled Understanding the Compromise of May 18, 2004

Posted by Lawrence Solum at 5/25/2004 02:47:11 PM

Tuesday Calendar

Harm, Offence, and Mill�s Conception of Liberty

Reasons for Acting, Wanting, Admiring, Believing,....

Practical Wisdom and Shifting Perspectives

Justifications and Excuses: Legal and Philosophical Perpsectives

Justifications and Excuses: Legal and Philosophical Perpsectives

Posted by Lawrence Solum at 5/25/2004 11:39:03 AM

Wu on Copyright's Communications Policy The hot download on SSRN is Tim Wu's Copyright's Communications Policy. Here is the abstract:

This paper suggest that the main challenges for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy. Since its inception copyright has set important baselines upon which publishers and their modern equivalents compete.business. As the pace of technological change accelerates, copyright's role in setting the conditions for competition is quickly becoming more important, even challenging for primacy the significance of copyright's encouragement of authorship. The study of copyright's communications policy has both a descriptive and a normative payoff. First, it helps us understand both the existing copyright code and the history of 20th century copyright. Second, it helps us ask whether copyright is in line with other important goals of national communications policy.

Posted by Lawrence Solum at 5/25/2004 08:45:13 AM

Fairman on Rule 9(b) Well, this is a topic that I find fascinating! Christopher M. Fairman (Ohio State University - Michael E. Moritz College of Law) has posted An Invitation to the Rulemakers - Strike Rule 9(b) (UC Davis Law Review, Vol. 38, 2004) on SSRN. Here is the abstract:

Pleading is the gateway into the federal courts. Consistent with the goal of merits determination, the Federal Rules of Civil Procedure typically impose only a minimal pleading requirement called "notice pleading." An elevated pleading burden requiring greater factual particularity - heightened pleading - is required only for cases involving fraud or mistake. Despite the limited situations requiring heightened pleading under the Federal Rules, federal courts routinely apply heightened pleading burdens to a myriad of cases. This Essay takes aim at the Federal Rule that spawns the widespread use of heightened pleading - Rule 9(b). Finding scant justification for Rule 9(b) even in the fraud context, this Essay makes the case for eliminating heightened pleading for fraud cases by amending the Federal Rules of Civil Procedure. The reasons are simple. Federal Rule of Civil Procedure 9(b) is more the product of historical accident than anything else. The current rationales for its retention are mere rationalizations that create divergent and unworkable standards in the fraud arena. Unfortunately, Rule 9(b) is not content to stay put. Federal courts routinely apply and extend Rule 9(b) heightened pleading into other substantive areas they deem "fraud-like." This ad hoc judicial rulemaking is in the face of repeated Supreme Court direction to stop. By striking Rule 9(b), heightened pleading can be contained: a rule-based solution to a rule-created problem.

Posted by Lawrence Solum at 5/25/2004 08:13:51 AM

Overton on Judicial Review of Campaign Reform Spencer A. Overton (George Washington University - Law School) has posted Restraint and Responsibility: Judicial Review of Campaign Reform (Washington & Lee Law Review, Vol. 61, p. 663, May 2004). Here is the abstract:

The First Amendment doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions about the appropriate role of money in campaigns. As illustrated by the conflicting opinions of different U.S. Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth tests provide inadequate guidance and compel judges to rely on their own political assumptions in balancing the need for regulation against the right of free speech. Judges skeptical of campaign reform err on the side of protecting speech, while judges supportive of reform lean toward tolerating regulations said to prevent corruption. To resolve the conflict and fill the void in current doctrine, this Article identifies four democratic values that judges should balance in deciding whether campaign finance laws restrict too much protected speech: democratic deliberation, widespread participation, individual autonomy, and electoral competition. While political assumptions may influence judicial balancing of these values, this new approach is a better compromise of sensitivity to context, consideration of substantive democratic values, and judicial guidance than the alternatives. Honest exchange about how courts should balance relevant values in particular contexts, rather than a glossing over of tough issues with abstract rhetoric and mechanical categories, will allow for a more coherent doctrine.

Posted by Lawrence Solum at 5/25/2004 08:11:22 AM

Gan, Williams and Wiseman Model Hate Crimes Legislation Li Gan , Roberton C. Williams III, Thomas Wiseman (University of Texas at Austin - Department of Economics , Stanford University - Stanford Institute for Economic Policy Research , University of Texas at Austin - Department of Economics and University of Texas at Austin - Department of Economics) have posted A Simple Model of Optimal Hate Crime Legislation on SSRN. Here is the abstract:

We present a simple model of the effects of hate crime legislation. It shows that even if the direct harm to victims of hate crime is the same as for other crimes, because of other differences in the effects it may still be optimal to exert more law-enforcement effort to deter or prevent hate crime. These differences also have previously unrecognized effects on the optimal level of effort by potential hate crime victims to avoid being victimized, thus affecting the efficiency of government policies that encourage or discourage such effort. We discuss the implications of these results for optimal hate-crime policy, as well as for policy toward other similar crimes, such as terrorism.

Posted by Lawrence Solum at 5/25/2004 08:08:41 AM

Nzelibe on the Uniqueness of Foreign Affairs Jide Nzelibe (University of Chicago - Law School) has posted The Uniqueness of Foreign Affairs (Iowa Law Review, Vol. 89, No. 942, March 2004) on SSRN. Here is the abstract:

This Article attempts to explain and justify the exceptional treatment that courts accord foreign affairs issues under the political question doctrine. For the most part, academic commentators have attacked the political question doctrine, arguing that the doctrine is both incoherent and inconsistent with the Marbury tradition of judicial review. Challenging the conventional academic wisdom, this Article contends that institutional competence considerations continue to warrant broad application of the doctrine in the foreign affairs context. More specifically, this Article argues that the power-based nature of most international policy decisions continues to constrain the power of the courts to adjudicate on foreign affairs controversies. Nonetheless, the mere involvement of foreign affairs in a legal dispute should not automatically preclude judicial review. Rather, this Article suggests an alternative vision of the judicial function in foreign affairs, which I call the balance of institutional competencies approach. This approach envisions a spectrum of judicial authority in foreign affairs, which depends on whether the underlying foreign affairs controversy implicates individual rights or domestic property interests, or whether Congress has legislated on the particular foreign affairs issue in question. When viewed as a device for the proper allocation of institutional competencies in foreign affairs disputes, this Article contends that the political question doctrine is both doctrinally coherent and, in the proper circumstances, normatively attractive.

Posted by Lawrence Solum at 5/25/2004 08:06:30 AM

Moreau on the Wrongs on Unequal Treatment Sophia Reibetanz Moreau (University of Toronto - Faculty of Law) has posted The Wrongs of Unequal Treatment (University of Toronto Law Journal, Forthcoming) on SSRN. Here is the abstract:

When exactly is it unfair for a government to fail to treat citizens as equals? And what is the nature of the wrong done to individuals who are not treated as equals? The main aim of this paper is to argue that there are a number of quite distinct ways in which individuals may be wronged by unequal treatment, and that these different wrongs are not reducible to a single unifying explanation. I then try to show that the approach to violations of equality rights in the Canadian Charter of Rights and Freedoms laid down by the Supreme Court of Canada in Law v. Canada fails to separate out these different wrongs, and I argue that this has rendered the test both conceptually problematic and less able to recognize as discriminatory certain instances in which the claimant has indeed suffered from unfair treatment. In conclusion, the paper explores several ways in which the Law approach might be modified, in order to rectify these problems.

Posted by Lawrence Solum at 5/25/2004 08:05:59 AM

Hylton on Calabresi and the Intellectual History of Law and Economics Keith N. Hylton (Boston University School of Law) has posted Calabresi and the Intellectual History of Law and Economics on SSRN. Here is the abstract:

This essay traces the vein of thought represented by Calabresi's The Costs of Accidents, both backward in time to examine its sources, and forward to its impact on current scholarship. I focus on three broad topics: positive versus normative law and economics, positivist versus anti-positivist thinking in law, and the assumption of rationality in law and economics.

Posted by Lawrence Solum at 5/25/2004 08:03:52 AM

Issacharoff on Democracy in Fractured Societies Samuel Issacharoff (Columbia Law School) has posted Constitutionalizing Democracy in Fractured Societies (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

This article explores the tension between constitutionalism and democratic majoritarianism in the context of emerging democracies characterized by deep ethnic or religious fractures. For many years, the political science orthodoxy prescribed a strategy of "consociationalism" that settled power-sharing arrangements as a bargain between political elites and rendered politics to a perpetual recognition of the primacy of ethnic or religious divides. The history of consociationalist experiments, in countries such as Lebanon and Cyprus, has been one of numerous unfortunate descents into communal warfare. Since the fall of the Soviet Union, there has been a dramatic new round of nation-building in formerly repressive and fractured societies. Rather than turn to consociationalism to constrain the risk of unbridled majoritarianism and the threat of communal war, these countries have by and large employed a form of strong constitutional authority, typically enforced by an independent constitutional court, to prevent democratic politics from consuming itself. This article contrasts the experience of two such countries: South Africa and Bosnia. South Africa presents an example of a judicially-enforced constitutional order that allowed a remarkably stable multiracial society to emerge from the fall of apartheid. Bosnia, by contrast, came into the era of independence through a structured political power-sharing among the various ethnic groups, enforced through the Dayton peace accords. In both cases, the national constitutional courts played a critical role in attempting to secure the transition to stable democratic governance. In the case of South Africa, that was a role directly contemplated by the transitional accords. In the case of Bosnia, however, the Bosnian Constitutional Court was compelled to unwind some of the consociationalist strands of Dayton in order to prevent a renewal of ethnic factional war.

Posted by Lawrence Solum at 5/25/2004 08:01:18 AM

Kang on Deliberative Democracy in the Supreme Court John M. Kang (Western Kentucky University - Department of Political Science) has posted The Irrelevance of Sincerity: Deliberative Democracy in the Supreme Court (Saint Louis University Law Journal, Vol. 48, Issue 2, 2004) on SSRN. Here is the abstract:

Insincerity is regarded as a roguish intruder in democratic discourse where people are expected to speak their minds freely yet with a measure of sincere concern for their fellow citizens. This general cultural response has found formal articulation in the prominent scholarly movement which in recent years has assembled under the heading of "deliberative democracy". Its advocates - who include a diverse mix of some of the most prominent law professors, philosophers and political theorists - argue that people should frame their justifications in terms of the common good or the public generally, and that such justifications, at least sometimes, should be sincere. Against such insistence on sincerity, I argue that sincerity is both logically and practically irrelevant in contributing to a meaningful realm of free speech that can help generate diverse options for an audience to consider in its search for provisional political "truths".

Posted by Lawrence Solum at 5/25/2004 08:00:58 AM

Monday, May 24, 2004

Weekend Update On Saturday, the regular features included the SSRN Top Downloads, the Download of the Week (a great new paper by Eugene Volokh), and the Legal Theory Bookworm (recommending Animal Rights: Current Debates and New Directions, edited by Cass Sunstein & Martha Nussbaum). On Sunday, the Legal Theory Calendar previewed the week's talks and conferences and the Legal Theory Lexicon entry was on "Overlapping Consensus and Incompletely Theorized Agreements."

Posted by Lawrence Solum at 5/24/2004 11:04:29 AM

Monday Calendar

Moral Reasons and Moral Motivation. Some Reflections on Rationalism in Ethics

Posted by Lawrence Solum at 5/24/2004 11:01:51 AM

Kysar on Climate Change and Rationality Douglas A. Kysar (Cornell University - School of Law) has posted Climate Change, Cultural Transformation, and Comprehensive Rationality (Boston College Environmental Affairs Law Review, Vol. 31, No. 3, 2004) on SSRN. Here is the abstract:

Economic cost-benefit analysis aims to evaluate regulatory proposals by identifying, monetizing, and comparing the proposals' expected positive and negative consequences. The methodology has been received critically in the area of environmental, health, and safety regulation, where scientific uncertainty, difficulties of valuation, and uncommonly long time horizons are said to render cost-benefit analysis especially problematic. This Essay reviews such criticisms through a discussion of the use cost-benefit analysis in the particular context of climate change policymaking. In this context, generic criticisms of cost-benefit analysis in the environmental, health, and safety area become even more pronounced, raising significant doubt about the methodology's philosophical and practical appropriateness as a guide for climate change policymaking.

Posted by Lawrence Solum at 5/24/2004 10:53:24 AM

McGinnis & Movsesian on the WTO John O. McGinnis and Mark L. Movsesian (Northwestern University - School of Law and Hofstra University) have posted Against Global Governance in the WTO (Harvard International Law Journal, Vol. 45) on SSRN. Here is the abstract:

Posted by Lawrence Solum at 5/24/2004 10:51:24 AM

Stavins on Kyoto Robert N. Stavins (Harvard University - John F. Kennedy School of Government) has posted Can an Effective Global Climate Treaty be Based on Sound Science, Rational Economics, and Pragmatic Politics? on SSRN. Here is the abstract:

The Kyoto Protocol (1997) to the United Nations Framework Convention on Climate Change (1992) may come into force without U.S. participation, but its effects on climate change will be virtually non-existent. At the same time, the economic and scientific consensus points to the need for a credible international approach. A reasonable starting point is the Framework Convention on Climate Change (FCCC), which was signed by 161 nations and ratified by 50, including the United States, and entered into force in 1994. In this paper, I remain agnostic on the question of the Kyoto Protocol's viability. Some analysts see the agreement as deeply flawed, while others see it as an acceptable first step. But virtually everyone agrees that the Protocol is not sufficient to the overall challenge, and that further, subsequent steps will be required. This is my starting point for proposing a three-part policy architecture: first, all nations would be involved through the use of economic trigger mechanisms, plus growth targets; second, long-term targets would be required - in the short-term, firm, but moderate targets, and in the long-term, flexible, but much more stringent targets; and third, market-based policy instruments would be part of the package - emissions trading, carbon taxes, or hybrids of the two. This overall approach can be made to be scientifically sound, economically rational, and politically pragmatic.

Posted by Lawrence Solum at 5/24/2004 10:42:48 AM

Sunday, May 23, 2004

Legal Theory Calendar

Monday, May 24

Moral Reasons and Moral Motivation. Some Reflections on Rationalism in Ethics

Tuesday, May 25

Harm, Offence, and Mill�s Conception of Liberty

Reasons for Acting, Wanting, Admiring, Believing,....

Practical Wisdom and Shifting Perspectives

Wednesday, May 26

Justifications and Excuses: Legal and Philosophical Perpsectives

Did Workers Pay for the Expansion of Products Liability Law?

Reasons for Acting, Wanting, Admiring, Believing,....

the link to download Sasha's paper

Thursday, May 27

The Ethical Analysis of Law

Reasons for Acting, Wanting, Admiring, Believing,....

Friday, May 28

Saturday, May 29

The Forum for Law and Philosophy

Posted by Lawrence Solum at 5/23/2004 10:32:36 PM

Legal Theory Lexicon: Overlapping Consensus & Incompletely Theorized Agreements

Introduction

then the question arises,

"Can we make any progress?"

Legal Theory Lexicon

Deep and Shallow

surface

Overlapping Consensus

Political Liberalism

the problem of stability

justice as fairness

fact of pluralism

How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom?

Incompletely Theorized Agreements

Incompletely Theorized Agreements

Applications

How can you use the idea of an overlapping consensus or incompletely theorized agreement?

Conclusion

Posted by Lawrence Solum at 5/23/2004 05:43:27 PM

Saturday, May 22, 2004

Legal Theory Bookworm Brand new from Oxford is Animal Rights: Current Debates and New Directions, edited by Cass Sunstein & Martha Nussbaum. Here's a description:

Millions of people live with cats, dogs, and other pets, which they treat as members of their families. But through their daily behavior, people who love those pets, and greatly care about their welfare, help ensure short and painful lives for millions, even billions of animals that cannot easily be distinguished from dogs and cats. Today, the overwhelming percentage of animals with whom Westerners interact are raised for food. Countless animals endure lives of relentless misery and die often torturous deaths. The use of animals by human beings, often for important human purposes, has forced uncomfortable questions to center stage: Should people change their behavior? Should the law promote animal welfare? Should animals have legal rights? Should animals continue to be counted as 'property'? What reforms make sense? Cass Sunstein and Martha Nussbaum bring together an all-star cast of contributors to explore the legal and political issues that underlie the campaign for animal rights and the opposition to it. Addressing ethical questions about ownership, protection against unjustified suffering, and the ability of animals to make their own choices free from human control, the authors offer numerous different perspectives on animal rights and animal welfare. They show that whatever one's ultimate conclusions, the relationship between human beings and nonhuman animals is being fundamentally rethought. This book offers a state-of-the-art treatment of that rethinking.

Posted by Lawrence Solum at 5/22/2004 06:02:46 PM

Download of the Week This week, the Download of the Week is Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, Situation-Altering Utterances, and the Uncharted Zones by Eugene Volokh. Here is the abstract:

Speech, some argue, should sometimes lose its First Amendment protection because it's really just conduct. These arguments have been made for a wide range of speech: (1) racially and sexually offensive speech in workplaces, universities, and places of public accommodation; (2) speech that informs people how certain crimes can be committed; (3) speech that teaches children harmful ideas; (4) speech that lobbies against housing for the disabled; (5) speech that advocates crime; (6) doctors' speech recommending medicinal marijuana to their patients; (7) speech that urges political boycotts; and even (8) public porfanity. This article will discuss several such this speech is really conduct theories. First, it responds to the argument that generally applicable laws, which apply to speech alongside other conduct, should be free from First Amendment scrutiny even when they cover speech because of its persuasive, informative, or offensive content. The article argue that such an argument is unsound, and inconsistent with many leading free speech cases. Restrictions that are content-based as applied should be treated the same way as restrictions that are content-based on their face. Second, the article responds to the argument that various kinds of speech should be punishable because they are part of an illegal course of conduct, speech brigaded with action, or speech act[s] rather than pure speech; such arguments often quote Giboney v. Empire Storage & Ice Co. (1949). The article criticizes Giboney, and concludes that if such an illegal course of conduct doctrine should be recognized, it should be narrow indeed - so narrow that it wouldn't apply to most of the cases where Giboney is cited. Third, the article discusses, and to some extent critiques, Professor Kent Greenawalt's view that certain kinds of statements are situation-altering utterances and thus unprotected conduct. Finally, the article confronts the uncharted zones of free speech - criminal agreements, criminal solicitation, much verbal aiding and abetting, professional speech, and the like - and suggests that these zones are best dealt with by recognizing properly bounded First Amendment exceptions (as the Court has done with regard to libel, incitement, fighting words, and the like), and not by relabeling the speech as conduct.Download it while its hot!

Posted by Lawrence Solum at 5/22/2004 06:00:37 PM

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Jurisprudence and Legal Philosophy
Law and Economics
Legal History
Law and Humanities
Constitutional Law
Cyberspace Law
Discrimination, Law, & Justice
Legislation and statutory interpretation
Public Law and Legal Theory
Top Ten Overall for the Legal Scholarship Network

Posted by Lawrence Solum at 5/22/2004 05:58:16 PM

Friday, May 21, 2004

Call for Papers: Notre Dame Journal of Law, Ethics, & Public Policy

Call for Papers Notre Dame Journal of Law, Ethics & Public Policy The Notre Dame Journal of Law, Ethics & Public Policy is currently accepting submissions for its 2004�2005 symposia. The Journal will publish an issue on �Security and Liberty� next winter, and an issue on �Media Ethics� will follow in the spring. Both issues will explore a wide range of topics. Topics of interest for the first issue on �Security and Liberty� include: the PATRIOT Act, civil liberties in a time of war, military tribunals, border security and immigration reform, and the pending Supreme Court decisions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush. The second issue on �Media Ethics� may include topics such as F.C.C. broadcast ownership regulation, decency laws, publication of the Abu Ghraib prisoner abuse photographs and other images from the war on terror, politically biased coverage, celebrity trials, the Robert Novak and Valerie Plame affair, and news fabrication. The Journal will consider submissions related to all legal, ethical, and policy-oriented aspects of these two symposium topics. Published by the Thomas J. White Center on Law & Government, the Journal�s mission is to examine public policy questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal has a national audience, and past contributors include President George W. Bush, President Ronald Reagan, Justice William J. Brennan, Senator Bill Bradley, House Speaker J. Dennis Hastert, Senator Rick Santorum, Representative Henry J. Hyde, Senator Orrin G. Hatch, Secretary-General Kofi Annan, Judge John T. Noonan, Judge Richard A. Posner, Secretary Tommy G. Thompson, John Cardinal O�Connor, Joseph Cardinal Bernadin, Governor Mario Cuomo, Mayor Rudolph Giuliani, Douglas W. Kmiec, John Finnis, Joseph Raz, Kent Greenawalt, William W. Van Alstyne, and Kenneth L. Karst, among others. Unlike traditional law reviews, the Journal devotes each issue to a single topic of public concern. This approach permits a more comprehensive analysis of each symposium topic. The unique focus of the Journal is widely recognized, as demonstrated in citations to the Journal by various state and federal courts, including the United States Supreme Court. If you are interested in submitting a piece for possible publication, please contact us by e-mail at ndjlepp@nd.edu, or at the telephone number or address provided below. To maintain a high quality publication, the Journal will need to receive a draft of your submission, preferably by e-mail, on or before August 15, 2004. Sincerely, Kate S. O�Scannlain Solicitation Editor

Posted by Lawrence Solum at 5/21/2004 12:40:14 PM

Ribstein Reports on the Same-Sex Marriage Conference Over at the excellent Ideoblog, Larry Ribstein reports on the Same-Sex Marriage Conference at Catholic University (The Implications of Lawrence and Goodridge for the Recognition of Same-Sex Marriages and the Validity of DOMA.). Here is a taste:

In general, Lawrence (the Supreme Court�s recent case striking down the Texas sodomy law) and Goodridge (the Massachusetts same sex marriage case) suggest that states may be constitutionally disabled from banning same sex marriage. Such bans might be deemed to interfere with the freedom to define one�s self and one�s relationships, a liberty interest that the Court now believes is protected under the due process clause of the 14th Amendment. It also may contravene homosexuals� expanded equal protection rights articulated by Justice O�Connor concurring in Lawrence. These cases also indicate that the states may not be able to justify same sex marriage bans merely by citing their moral or religious condemnation of homosexuality. The conference explored many issues, including federalism, the appropriate scope of judicial power, the meaning of the full faith and credit clause, the validity and meaning of the federal Defense of Marriage Act (DOMA), and the potential for new federal laws to deal with these issues.Surf on over to Ideoblog for more!

Posted by Lawrence Solum at 5/21/2004 12:16:08 PM

Lillehammer Reviews Shafer-Landau On Notre Dame Philosophical Reviews, Hallvard Lillehammer (King�s College, Cambridge University) reviews Russ Shafer-Landau, Moral Realism: A Defense, Oxford, 2003, 336pp, $45.00 (hbk), ISBN 0199259755. Here is a taste:

Analytical metaethics is an area where a great deal of ingenuity is currently required in order to find a distinctive yet plausible position to defend at any length. In this book, Russ Shafer-Landau demonstrates that the task remains possible. Over 300 pages or so, he defends an unorthodox combination of claims, including anti-Humeanism about reasons for action, mind-independent moral realism, moral non-naturalism, moral rationalism, and reliabilist moral epistemology. Shafer-Landau�s book will be useful to any student of philosophy who wants to gain a synoptic view of contemporary metaethics, and also to professionals with a stake in the many ongoing debates to which the book makes valuable contributions.

Posted by Lawrence Solum at 5/21/2004 11:03:09 AM

Bradley on Virtue Consequentialism Ben Bradley (Syracuse University) has posted Virtue Consequentialism, forthcoming in Utilitas, on SSRN. Here is a taste:

In her famous paper �Virtues and Vices,� Philippa Foot writes that �virtues are in general beneficial characteristics, and indeed ones that a human being needs to have, for his own sake and that of his fellows.�[ Foot here expresses a view about virtue that we might call �virtue consequentialism.� It has been held, in one form or another, by Hume, Bentham, and G.E. Moore, and more recently by Linda Zagzebski, Judith Thomson and Julia Driver. It has also been widely criticized. Unfortunately, though the basic idea behind the view seems easy enough to grasp, virtue consequentialism has never been properly formulated. In what follows I try to remedy this situation. I take as a starting point the view presented by Driver in Uneasy Virtue, the most detailed and thoroughly defended recent formulation of virtue consequentialism. In light of the problems Driver�s view faces, I suggest that the best version of virtue consequentialism is a contrastivist view -- that is, a view according to which attributions of virtue are really disguised comparisons between two character traits -- and a counterfactualist view -- that is, a view according to which the consequences of a trait in non-actual circumstances may affect its actual status as a virtue or vice.

Posted by Lawrence Solum at 5/21/2004 10:38:46 AM

Confernce Announcement: The Publicity of Reasons

The Publicity of Reasons, Normative Authority and Religious Liberty Saturday, May 29th, 2004 St. Hugh's College, Oxford The Becket Institute is holding a conference to bring together philosophers, political theorists and legal theorists to discuss recent work concerning normativity, the publicity of reasons, and liberalism as applied to the issue of religious liberty and toleration (broadly construed). PROGRAMME 900-930 WELCOME AND COFFEE 930-1100 ROBERT AUDI (Notre Dame) 'Moral Foundations of Democracy, Secular Reasons, and Liberal Neutrality Toward the Good' 1100-1115 BREAK 1115-1245 MARIA FERRETTI (Bologna) 'Having Reasons and Giving Reasons' 1245-200 LUNCH BREAK 200-330 JACK SAMMONS (Mercer) 'A Rhetorician's View on Religious Speech in Civic Argument' 330-345 BREAK 345-515 DAN ROBINSON (Oxford & Columbia) '"Essentialism"(again) and Fitness for the Rule of Law' DISCUSSANTS: Robert Frazier (Christ Church, Oxford) Gerald Land (University College, Oxford) Joan O'Donovan (Christ Church, Oxford) Roger Trigg (Warwick) There is no charge to attend this conference. If you are interested in attending, please email adrian.viens@philosophy.ox.ac.uk to register.

Posted by Lawrence Solum at 5/21/2004 10:35:29 AM

Perry on Free Exercise and Establishment Prohibitions Michael Perry (Emory) has posted What do the Free Exercise and Nonestablishment Norms Forbid? Reflections on the Constitutional Law of Religious Freedom. Here is the abstract:

The Constitution of the United States famously declares, in the First Amendment, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Yet, it is settled constitutional law that not just Congress but the entire national government - and not just the national government but state government too - may not establish religion or prohibit the free exercise thereof. For Americans today, the serious question is not whether the free exercise norm and the nonestablishment norm - the two principal matrices of the constitutional law of religious freedom - apply to the whole of American government, including state government. They do so apply. The serious question is not even whether the free exercise and nonestablishment norms should apply to the whole of American government. In the judgment of most Americans who bother to think about the matter, they should so apply. It is not surprising, then, that the sovereignty of the two norms over every branch and level of American government is constitutional bedrock. For Americans today, the serious question, regarding the free exercise and nonestablishment norms, is this: What does it mean to say that government, state as well as national, may neither prohibit the free exercise of, nor establish, religion? In particular, what sorts of government action - laws, policies, etc. - do the free exercise and nonestablishment norms forbid? At the risk of understatement: Not every scholar or judge gives the same answer to this question. My aim here is to give the answer that makes the most sense to me.

Posted by Lawrence Solum at 5/21/2004 10:31:08 AM

Witte on Establishment John Witte (Emory) has posted From Establishment to Freedom of Public Religion on SSRN. Here is the abstract:

This Article juxtaposes the theories of religious liberty developed by Thomas Jefferson and John Adams. It argues that Jefferson's notion of a "wall of separation between church and state" was a minority view in his day, and in the century to follow. More commonplace was Adams' view that balanced the freedom of all peaceable private religions with the "mild and equitable establishment" of one public religion. Adam's model of religious liberty dominated much of nineteenth-century law and culture, Jefferson's model a good bit of twentieth-century law and culture. In its most recent cases, the U.S. Supreme Court seems to be developing a new model of religious liberty that draws on the insights of both Jefferson and Adams, but rejects their respective calls for the privatization or the establishment of religion. The Court's formula is that both private and public forms of religion deserve constitutional freedom and support, though neither may be given preferential treatment.Also from Witte, Moderate Religious Liberty: John Calvin and the Geneva Experiment and Covenant Liberty in Puritan New England.

Posted by Lawrence Solum at 5/21/2004 10:28:26 AM

Hirschl on Juristocracy Ran Hirschl has posted Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Here is the abstract:

In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

Posted by Lawrence Solum at 5/21/2004 10:20:45 AM

The Forum for Law and Philosophy at Queen's University Belfast I am pleased to pass on news of the Forum for Law and Philosophy at Queen's University Belfas. Here is description of the forum:

The members of the forum are:

Robert Alexy

Emilios Christodoulidis

Veronica Rodriguez-Blanco

Giovanni Sartor

And on June 11 & 12, 2004, the Forum will host a Workshop entitled Law and the Possibility of Discourse: Re-opening the discourse-theoretical agenda 25 years after Robert Alexy�s Theory of Legal Argumentation. (I remember how excited I was when Alexy's book first appeared in translation!) The speakers at the workshop include:

Prof. Dr Robert Alexy, University of Kiel; Prof. Maeve Cooke University College Dublin; Dr Emilios Christodoulidis, Edinburgh University; Prof. Jonathan Gorman, Queen�s University Belfast; Dr Carsten Heidemann, Barrister, Kiel Bar Association; Prof Mattias Kumm, New York University; Dr Augustin Menendez, University of Oslo; Prof Aleksander Peczenik, Lund University; Prof Giovanni Sartor, University of Bologna; Prof Jan-Reinard Sieckmann, University of Bamberg; Dr George Pavlakos, Queen�s University Belfast; Dr Emmanuel Melissaris, University of ManchesterThis should be a very exciting event. Follow the links for more information!

Posted by Lawrence Solum at 5/21/2004 09:28:00 AM

Friday Calendar No events for today!

Posted by Lawrence Solum at 5/21/2004 09:27:13 AM

Thursday, May 20, 2004

Weatherall on the AUSFTA Copyright Provisions Kim Weatherall has good comments on the Australia United States Free Trade Act copyright provisions. Here is a taste:

If there is an argument in favour of the IP chapter of the AUSFTA (other than the Real Politik argument that "we couldn't get a free trade agreement without one" - which of course is no doubt true, but is only a good argument if we got a good free trade agreement in other areas) - it is that there are benefits to be reaped from harmonisation of IP law. The benefits of harmonisation would be reduced transaction costs for cross-border transactions. People would see IP law the same in the two jurisdictions, thus reducing the "lawyering costs" associated with any investment or purchase by the US of Australian material - and vice versa. In theory, I can see the benefits of this. I really can. The issue I have with this argument is that, in reality, the AUSFTA does not represent harmonisation with US IP law. It represents acceptance of some of the rules from US IP law, but many other rules are not accepted.

Posted by Lawrence Solum at 5/20/2004 07:16:19 AM

Crawford on ICANN Susan Crawford has an insightful post about the new ICANN budget on her excellent blog. Here is a taste:

ICANN should refrain from using the leverage it has as a gate-keeper of new entries into the root zone file to impose complex regulatory policies (and fees) on new tlds. ICANN should not see each new TLD and registrar as another revenue opportunity. That it does so makes other countries wonder whether ICANN is indeed "doing Internet governance." Paul Twomey is very good indeed at explaining ICANN's role as a forum for discussion of minor coordination issues. That explanation doesn't fit this budget.Karl Manheim and I have argued that ICANN should let the market drive root expansion in our paper An Economic Analysis of Domain Name Policy. One of the difficulties that ICANN faces, however, is a lack of policy expertise. Even a slim and trim ICANN needs the resources to make rational decisions regarding the root, and these decisions require expertise in economics and linguistics, not to mention technical knowledge. If ICANN limits itself to "minor coordination issues," then how will DNS policy be made?
Also on the ICANN front, here is news re the Verisgn v. ICANN lawsuit.

Posted by Lawrence Solum at 5/20/2004 06:54:33 AM

Thursday Calendar

Deregulation and the Incomplete Regulatory Contract

Official Representation of Religion in National Assemblies or �Is half a loaf better than no bread?

Interdicting Weapons of Mass Destruction at Sea

Posted by Lawrence Solum at 5/20/2004 06:35:27 AM

Mayton on Recess Judicial Appointments William Ty Mayton (Emory University - School of Law) has posted Recess Appointments and an Independent Judiciary (Constitutional Commentary, 2004) on SSRN. Here is the abstract:

Presidents Clinton and Bush have revived a quiescent executive power, that of recess appointments to the bench. For both Presidents the attractive feature of this route is that it placed their nominees on the bench without Senate confirmation. But because of this by-pass these appointments have been questioned, on political and constitutional grounds. This article is about the constitutional part of the debate and here the questions examined are: (1) whether the present use of the recess appointments clause is so expansive as to exceed the power in fact granted by the clause, thereby infringing the senatorial prerogative of "advice and consent" and (2) whether recess appointments to the bench infringe a right, as derived from Article III of the Constitution, to be heard by judges "free of political domination." As regards the right: Same as all such appointees, recess appointees to the bench receive a temporary appointment, good only until the end of the next session of the Senate. Whether the appointee gains a permanent seat on the bench is contingent upon renomination by the President and confirmation by the Senate. When the appointee hears a case, then, he or she remains subject to this political pressure and therefore acts in face of the right - as may be claimed by any party whose claim the appointee hears - to be heard by a politically independent judge. Both of the above questions, about the scope of the power and (assuming the power) about the exercise of it in face of the right to a judge free of political domination, can straightforwardly be answered by a close examination of the text and purposes of the clause and of Article III requirements respecting judicial autonomy. However, the answers thus provided have been clouded by an unfortunate resort to history, more-or-less according to Justice Frankfurter's dictum that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'executive Power'." But the history thus deployed seems wrong, both in content and technique. With this history thus discounted, a return to the answers produced by the text and purposes of the relevant constitutional provisions is in order. These answers, as I take it, show that the present uses of the recess appointments clause exceed the power granted, and that assuming the power the right to a judge free of political domination trumps it. I find this issue fascinating. I find myself in disagreement with Mayton about the text. Mayton writes:

Respecting recess appointments, Article II, Sec. II cl. 3 flatly states that � The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate� and does so without allowance for judges. As flatly, Article III states that judges �shall hold their offices during good Behavior� and does so without allowance for recess appointees. For any number of people, including the judges in United States v. Woodley, these terms established an impasse that cannot be broken by textual analyses.But "good behavior" is not inconsistent with the recess appointments power. A recess appointee can only be removed for cause during the constitutionally specified term; during that term, the recess appointee does receive the protection of the Good Behavior Clause. The only way to generate a textual conflict is to assume that "good behavior" means "life tenure," but in light of the recess appointments clause, that reading seems implausible.
For more on recess appointments, see Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.

Posted by Lawrence Solum at 5/20/2004 06:28:49 AM

Mitnick on Individual Vulnerability and Cultural Transformation Eric J. Mitnick (Thomas Jefferson School of Law) has posted Individual Vulnerability and Cultural Transformation (Michigan Law Review, Vol. 101, p. 1635, 2003) on SSRN. Here is the abstract:

Liberal theory today, for the most part, has come round to the view that some degree of state accommodation of minority cultural practice is required as a matter of justice. Debate thus shifts to determining the best justification for, and the appropriate extent of, differentiated policy. Too often lost amid these discussions is the plight of vulnerable members of accommodated cultural groups: individuals subject to repression within their cultural groups, but loss of a critical aspect of their identities upon exit; individuals who would retain their cultural membership, but also their fundamental rights as individuals. In her new book on multiculturalism, however, Ayelet Shachar takes the plight of vulnerable cultural group members as her primary focus. Part I of this review seeks to locate Shachar's work within the broader framework of liberal-multicultural theory. Although Shachar attempts to distance herself from the predominant autonomy perspective in liberal-multicultural theory, the most sensible reading of Shachar's approach is as an institutionalization of that perspective. Part II takes up Shachar's analysis of the relationship between state accommodationist policy and cultural repression. Shachar describes ways in which the vulnerability of categories of persons, particularly women, is often deeply encoded in cultural traditions. While others have described repressive aspects of cultural practices, Shachar's thorough treatment of cultural vulnerability as it arises in the area of family law helpfully contextualizes the problem. Shachar's solution to the problem of cultural vulnerability, described in Part III of this review, is an innovative scheme of competitive joint governance. Shachar proposes a system in which jurisdiction is divided between state and cultural sources of authority, but in which the choice of jurisdiction on critical issues is left to individual members. Such a scheme, Shachar suggests, would have the virtue not only of enabling vulnerable members to exercise their rights without sacrificing their cultural identities, but also of engendering competition between jurisdictions and thereby inducing transformation of repressive cultural practices. Shachar's prescription is genuinely innovative but also underdeveloped. It presupposes negotiation between jurisdictions without describing parameters, leaves unexamined state indifference to cultural vulnerability, and presumes individual agency precisely in those situations where agency is least likely to exist. Nonetheless, Shachar's prescriptive work represents an important institutional turn in liberal-multicultural theory, an opening which theorists should seize upon and further develop.

Posted by Lawrence Solum at 5/20/2004 06:03:17 AM

Keller on Economic Rights Linda M. Keller (University of Miami - School of Law (Visiting) has posted The American Rejection of Economic Rights as Human Rights & the Declaration of Independence: Does the Pursuit of Happiness Require Basic Economic Rights? (NYLS Journal of Human Rights, Vol. 19, p. 557, 2003) on SSRN. Here is the abstract:

This article explores the economic dimension of the Pursuit of Happiness in the Declaration of Independence and how it undercuts the notion that economic and social rights under international human rights law are somehow un-American. The United States government seems to believe that economic rights are not truly human rights, but rather radical Cold War era entitlements advocated by communists. The minimum-needs conception of the pursuit of happiness suggests that economic rights are enshrined in a document considered part of the foundation of democracy. Part I evaluates the rejection of economic rights in the United States, focusing on international commitments. Part II turns to the Declaration of Independence, specifically, the Pursuit of Happiness. Drawing on eighteenth-century political thought, it asserts that the pursuit of happiness establishes an inalienable right that includes an economic dimension. Part III argues that the right to pursue happiness entails a concomitant governmental duty: the duty to facilitate the pursuit of happiness by providing minimum economic means. Although the Declaration of Independence has not been interpreted as legally enforceable, the principles of the Declaration form the basis for the government and must be followed by it. The article shows how this obligation to ensure basic economic rights is also contained in various international instruments. Far from being foreign to American political thought, this duty is provided for and must be fulfilled under the principles of the Declaration of Independence.

Posted by Lawrence Solum at 5/20/2004 06:02:09 AM

Savirimuthu on Online Contract Formation Joseph Savirimuthu (University of Liverpool - Liverpool Law School) has posted Online Contract Formation: Taking Technological Infrastructure Seriously (University of Ottawa Law and Technology Journal, 2004) on SSRN. Here is the abstract:

Mention online contract formation and students and academics intuitively turn to the legal rules. This interpretive community seems less than convinced that the distinctive features of the virtual environment have new insights to offer. Whether that is likely to be the case cannot be ascertained if we continue to map our understanding of online contract formation in accordance with the textbook tradition of contract law. An illustration of this pattern of analysis can be seen by the way discussions and analysis of online contract formation frequently focus on two issues: (i) the applicability of contract principles; (ii) the shortcomings of the Electronic Commerce (EC Directive) Regulations 2002. A consideration of the value of consent and its role in contract formation and operative factors, with regard to the way obligations are characterised, suggests that the overemphasis on the process/method distinction is misleading. The paper will demonstrate that (a) to the extent that the rules on contract formation are relevant, they provide a preliminary and not a final point of understanding; (b) the dominant role of computers in structuring and processing communications makes it critical to identify the values embedded in the technological infrastructure; (c) the narrative of values in the technological infrastructure provides a better route to understanding online contract formation. Illustrations will be provided to support the hypothesis. The layer principle, it is suggested, provides an appropriate narrative for reconciling contract doctrine with the central role of Electronic Commerce (EC Directive) Regulations 2002. The paper concludes that attempts to understand the governance challenges for online contract formation through legal rules are misplaced. To understand the contemporary role of contract we need to integrate the communications system of hardware and software into our narrative of what it is that gives commitments their binding character.

Posted by Lawrence Solum at 5/20/2004 06:00:16 AM

Wednesday, May 19, 2004

Understanding the Compromise of May 18, 2004

Introduction: A Break in the Downward Spiral of Politicization

the Washington Post story

Los Angeles Times

Byron York's piece for National Review Online

Here

What If?

What If

What Would Have Happened If The Compromise Had Not Been Reached?

The President

Make No Recess Appointments

Make Selective Recess Appointments of Filibustered Nominees

Make Wholesale Recess Appointments of Senior Status Judges and/or Academics

Benching Bork

The Senate Democratic Minority

Veto all nominees.

Veto selectively.

Do not veto.

The Senate Republican Majority

Change the Cloture Rule

Do Not Change the Cloture Rule

Why?

A Rediscription of the Compromise of May 18, 2004

Hold that thought! We have one more step to complete.

What Would Have Happened If President Bush Had Never Used The Recess Appointments Clause?

So what net effect did the President's recess appointments of Pickering and Pryor have?

What Does This Mean?

So what does this all mean?

I'm sure you see this coming. There was no Compromise yesterday.

If that's so, why did the Democrats temporarily stall the process?

How do you know that the Democrats weren't planning to stall all the nominees until after the election (in the hope that Kerry replaces Bush)?

In other words, nothing happened yesterday.

The Long Run

A Simple Model of Political Acceptability

Figure One: One Dimensional Model: Political Ideology ____________________________ Left--------------------Right

Figure Two: One Dimensional Model: Acceptable to the Right _____________________________ Left--------------------Right

Figure Three: One Dimensional Model: Acceptable to the Left _____________________________ Left--------------------Right

Figure Four: One Dimensional Model Acceptable to Both Parties _____________________________ Left--------------------Right

confirmability zone

Figure Five: One Dimensional Model The First Mover Advantage _____________________________ Left--------------------Right

Complications

elsewhere

But this is a blog and this post is already long, so I am going with the simplest model that gets my point across.

Conclusion: After the Election

Nothing happened yesterday, and I expect that this holding pattern will continue until after the election.

Update:

Legisprudence: A New Theory of Legislation

De Novo

Posted by Lawrence Solum at 5/19/2004 11:01:07 AM

Wednesday Calendar

Marx's Commodity Fetishism and Wittgenstein's Grammatical Confusion

The Ontological Status of Persons: Why it Matters

Posted by Lawrence Solum at 5/19/2004 09:35:41 AM

McGowan on Metaphors David McGowan (Minnesota) has posted The Trespass Trouble and the Metaphor Muddle on SSRN. Here is the real abstract, replacing one that belonged with a different paper:

This article argues that a claim often advanced in the debate over Internet regulation is unsound. The claim asserts that metaphors such as space or place or property cause judges to think of the Internet as similar to physical property, in which persons may stake private claims the law protects from encroachment. Thinking of the Internet this way confuses or constrains judicial reasoning. I call this the metaphor claim. The article uses cases involving the trespass to chattels tort to test the claim. It argues that such cases show judges do understand that the key to the cases is intangible information rather than that the information is stored on or conveyed through physical property. Judges have not been confused or constrained. Instead, they have engaged in more comprehensive cost-benefit analysis than critics of the trespass tort, or those who advance the metaphor claim. The article also argues that the metaphor claim serves to trivialize judicial reasoning without refuting it (though this is not the intention of those who advance the claim), and to divert attention from severe weaknesses in academic criticism of the trespass tort. The article concludes that it is in fact trespass critics and metaphor claimants who insist on the thing-ness of property, and judges who have gone beyond that conception to adopt a more comprehensively utilitarian analysis.Highly recommended!

Posted by Lawrence Solum at 5/19/2004 09:28:54 AM

Tuesday, May 18, 2004

Brown & the 14th Amendment There is more from Volokh on Paul Craig Roberts's unsupportable claim that Brown v. Board was not based on the 14th Amendment. My post on this subject is here.

Posted by Lawrence Solum at 5/18/2004 12:34:56 PM

Tuesday Calendar

Constitutional Theory: Sovereignty and Legal Systems

Nietzsche and the Moral Interpretation of Existence

Posted by Lawrence Solum at 5/18/2004 06:27:57 AM

Welcome to the Blogosphere . . ., belatedly, to Susan Crawford blog.

Posted by Lawrence Solum at 5/18/2004 06:09:40 AM

Volokh on Speech as Conduct Eugene Volokh (UCLA) has posted Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, Situation-Altering Utterances, and the Uncharted Zones on SSRN. Here is the abstract:

Posted by Lawrence Solum at 5/18/2004 06:08:16 AM

Leiter on the Prospects for Philosophy Graduate Students Brian Leiter puts the scare stories about graduate school as a career optinon into perspective here.

Posted by Lawrence Solum at 5/18/2004 06:07:42 AM

Forbath on Charles Black William E. Forbath (University of Texas at Austin - School of Law) has posted Lincoln, the Declaration, and the 'Grisly, Undying Corpse of States' Rights': History, Memory, and Imagination in the Constitution of a Southern Liberal (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

As a constitutional theorist, Charles Black had no use for history. To the originalist, Black said, the language of the Constitution "'belongs in usufruct to the living.'" No other proponent of the "living" Constitution, however, has felt so deeply and written so feelingly about historical commitments, conflicts, and betrayals in the constitutional past and their consequences in the present. The presence of the past confronts - "haunts," "threatens," "nourishes," "compels" - Black and his forward-looking constitutional arguments. Its "ghosts" and its "grisly, undying corpses," as well as its "sacred memories," are active in them. This is no surprise: few other notable constitutional theorists have been white liberals from the South who grew up in and then fought against the social order of Jim Crow; fewer still have been poets. It is a poet's voice, in pieces like The Lawfulness of the Segregation Decisions, that relies for its authority not on historical evidence but on personal and historical memory and imagination. Likewise, this essay (written for a Symposium in Black's memory) suggests, it was as a poet and friend of the New Critics, also southern writers at Yale, that Black found affirmation of - and perhaps inspiration for - his trademark interpretive theory. The New Critics on poetry, like Black on the Constitution, favored the practiced reader's direct conversation with the texts in the canon, attuned to internal structures and relations and to the ways the texts echo and engage one another across generations and centuries. Certainly, many readers of poetry but no other constitutional theorists share Black's confident interpretive precept that we can leave historical "stuff altogether alone" and simply, imaginatively read centuries-old texts like the Declaration or the Constitution and know just what their authors "were saying" and what they had in mind with their "phrasal echoes" and allusions. From the 1980s onward, Black devoted his interpretive energies to three texts, the Declaration of Independence, the Ninth Amendment, and the citizenship and privileges or immunities clauses of the Fourteenth Amendment. The historian may bristle at Black's claims about direct access to what the authors had in mind, but in fact, Black's interpretations of these three texts are uncannily close to the accounts of many of our most perspicacious historians, those most steeped in the "scraps of collateral discourse" Black scorned. The convergence is uncanny because these are not familiar interpretations. They run against more than a century's worth of doctrinal understandings and constitutional common sense. So, the middle part of this essay distills Black's intertwined readings of his three old and "unredeemed" texts and compares them to the historians'. Showing how and why they converge reveals something more general about the interplay of history, memory, and imagination in the field of constitutional law and politics. It was the constitutional right to a decent livelihood that Black aimed, above all, to rest on his new textual foundations. But Black's interpretive energies ran thin at this point. So, the final part of the essay takes inspiration from Black and uses history in his spirit, not as a constraint on the "living Constitution," but to "refresh the reader's memory" and to flush out the "grisly, undying corpse of states' rights" that stalked national efforts to enact a right to livelihood, as it did national efforts to enact racial justice. Constitutional history pursued in Black's fashion, with an eye for historical betrayals and broken constitutional promises and their consequences, offers no binding conclusions shorn of present normative judgments, but such history provides rich support, from a quarter Black would not have expected, for his claim of the "constitutional justice of livelihood." And Forbath has also posted Not So Simple Justice: Frank Michelman on Social Rights, 1969�Present.

Posted by Lawrence Solum at 5/18/2004 06:06:57 AM

Wilkins on Diversity David B. Wilkins (Harvard University - Harvard Law School) has posted From Separate is Inherently Unequal to Diversity is Good for Business: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar (Harvard Law Review, Vol. 117, No. 5, March 2004) on SSRN. Here is the abstract:

Fifty years after John W. Davis, one of America's premier corporate lawyers, took on the defense of segregation in Brown v. Board of Education as a pro bono case, corporate America appears to have firmly embraced the mantra that "diversity is good for business." In this Article, I examine this surprising turn of events by investigating the rise of "market-based" diversity arguments in the legal profession itself. Specifically, I examine how black lawyers seeking to integrate corporate law firms have increasingly staked their claim on the contention that diversity is good for the business of law firms and clients. Although it is not surprising that diversity advocates have been drawn to such arguments, I argue that whether these claims will actually produce greater opportunities for black lawyers � and whether the resulting diversity will in turn further Brown's other goal of promoting social justice through law for all Americans � depends upon a closer examination of the connection between "diversity" and "business" than most proponents of the business case for diversity in the legal profession have been willing to undertake or even to acknowledge. As a preliminary matter, advocates must confront the profession's deep commitment to the idea that it is actually homogeneity that best serves firms and clients � a commitment that may be even harder to shake in law firms than it apparently has been in corporate America. At the same time, advocates must also be aware of the danger that market-based diversity arguments will encourage various forms of "race-matching," "pigeonholing," and "moral evasion" that can end up harming the cause of diversity by marginalizing and alienating minority lawyers. Ironically, taking note of these complexities may also hold the key to making progress on Brown's social justice goals as well. Integrating the corporate bar is a social justice issue of considerable importance. Nevertheless, if bringing diversity to the elite ranks of the American legal profession is going to do more than accentuate the yawning gap between the legal haves and have-nots, then those who come to occupy these positions of power must have normative commitments that both shape and constrain the business interests of their powerful clients. Contrary to the gloomy predictions of diversity advocates who urge abandoning social justice arguments for diversity altogether, however, there are good reasons to believe that black lawyers who maintain a normative understanding of diversity that goes beyond corporate self-interest may, paradoxically, have important advantages in building a credible "business case" for diversity in their own careers.

Posted by Lawrence Solum at 5/18/2004 06:05:20 AM

Druey on Owning Information Jean Nicolas Druey (Harvard University - Berkman Center for Internet & Society) has posted Information Cannot Be Owned on SSRN. Here is the abstract:

Apart from technology, the information age has up to now badly served its idol. It has failed sufficiently to recognize specific features of information. This is shown with respect to the question whether legal rights on information can take the form of ownership. The answer is negative considering that communication by its very nature is free and constitutes a basic value, and furthermore that law is itself information and cannot systematically dispose of information flows. Analyzing the phenomenon of information, the differences of its properties as compared with those of a physical object are illustrated and assessed as fundamental; ownership would therefore be for information a Procrustean bed leading to mere arbitrariness. Intellectual property, although granting exclusive rights concerning information is not by itself opposed to these findings. But the conflict arises, if its purpose of shaping competitive advantages is spoiled to the detriment of information flows by lack of neutrality in two senses: the lack of balance between the title holder's value generation and the reward, and of neutrality towards the various kinds of communicative relationships.

Posted by Lawrence Solum at 5/18/2004 06:04:54 AM

Nash on Deference to Lower Federal Court Interpretations of State Law Jonathan Remy Nash has posted Resuscitating Deference to Lower Federal Court Judges' Interpretations of State Law (Southern California Law Review, Vol. 77, 2004) on SSRN. Here is the abstract:

This Article examines the propriety of having federal courts afford deference to state law interpretations reached by lower federal court judges. Two Supreme Court decisions from the 1990s seemed substantially to circumscribe such deference. But in fact subsequent Court cases continue to afford deference. Moreover, such deference can be normatively valuable. This Article argues in favor of the use of deference in appropriate circumstances, including situations where district court and court of appeals agree on the proper interpretation of state law, and where answers to state law questions are obtained through an intrafederal certification regime.

Posted by Lawrence Solum at 5/18/2004 06:03:35 AM

Monday, May 17, 2004

Paul Craig Roberts

Here

Brief for the United States as Amicus Curiae

Brown

Brief for Appellants

this transcript

Americans have forgotten that Brown was based in sociology, not in law. This was widely recognized at the time. �A Sociological Decision: Court Founded Its Segregation Ruling On Hearts and Minds Rather Than Laws,� read a New York Times headline on May 18, 1954.

Brown

Legisprudence: A New Theory of Legislation

Posted by Lawrence Solum at 5/17/2004 08:52:40 PM

Bolling v. Sharpe Check out this post by Will Baude on Bolling v. Sharpe, the companion case to Brown that applied the substance of the Equal Protection Clause to the federal government via the Due Process Clause of the 5th Amendment.

Posted by Lawrence Solum at 5/17/2004 01:49:36 PM

Weekend Update On Saturday, I rounded up the SSRN top downloads, and the regular Download of the Week was Does History Defeat Standing Doctrine? by Ann Woolhandler and Caleb Nelson. The Legal Theory Bookworm recommended The New Constitutional Order by Mark Tushnet. On Sunday, the Legal Theory Lexicon entry was on indeterminacy and the Legal Theory Calendar previewed this weeks talks, workshops, and conferences. Also, late on Friday, you will find my Precedent and High Politics, replying to Jack Balkin's recent post, which included the following statement: "[I]f [Solum] accepts the common law tradition as part of what he means by formalist judging, then it's not clear how much he and I disagree, and I'm proud to sign on as a formalist."

Posted by Lawrence Solum at 5/17/2004 07:29:08 AM

Monday Calendar

Caring and Internality

Posted by Lawrence Solum at 5/17/2004 07:28:00 AM

So if you are going to law school and . . . Over at Crescat Sententia, Jeremy Blachman has a very good post for those who will start law school in August or September.

Posted by Lawrence Solum at 5/17/2004 07:24:50 AM

Academic Placement by Law School JD Programs Based on the incomplete data gathered here, here are the top ten law schools ranked by placements of JD graduates in entry-level tenure-track positions on law school faculties in the United States for the 2004-05 academicy year. The first list provides the actual number of reported placements (multiply by three to get a rough estimate of total placements). The second list provides a rough estimate of the percentage of graduates placed in tenure-track academic jobs.

Rank by Reported Number of Reported Placements

1. Yale-19 2. Harvard-17 3. Stanford-10 4. Chicago-6 5. UC Berkeley-5 6. Columbia-4 6. Georgetown-4 6. Michigan-4 6. Penn-4 6. Virginia-4

Rank By Estimated Percentage of Graduates Placed

1. Yale-29.6% 2. Stanford-17.2% 3. Chicago-9.0% 4. Harvard-9.0% 5. UC Berkeley-5.1% 6. Penn-4.5% 7. Virginia-3.2% 8. Columbia-3.0% 9. Michigan-2.9% 10. Georgetown-2.0%

These numbers are imprecise for many reasons. My sample was not random. Only 1/3 of law schools reported their entry-level hiring for next year. The percentage is obviously based on several different graduating classes up through 2003. I estimated the percentage of placement based on (1) an extrapolation of the total number of students placed from my sample (essentially multiplying by slightly less than 3), and (2) an estimate of average class size based on the most recent data reported by the LSAC. The true percentages could be significantly higher and lower, and the list of the top-ten schools could change. (Texas would be the most likely school to move into the top ten.)

Posted by Lawrence Solum at 5/17/2004 07:16:35 AM

Gillette on Rolling Contracts Clayton P. Gillette (New York University Law School) has posted Rolling Contracts as an Agency Problem (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:

Rolling contracts involve terms that sellers include with delivery of goods and that purport to affect the rights of the parties to a contract. They have become common in contracts concluded in telephone or on-line transactions, and controversial because buyers often do not explicitly assent to them and are highly unlikely even to read them. In this article, I suggest that it is appropriate to evaluate the effectiveness of rolling terms, and of standard form contracts generally, as a principal-agent problem. When buyers do not represent themselves in the process of drafting a contract, their interests may still be internalized by sellers in competitive markets, by courts that adjudicate the terms that the contract drafter selected, or by government agencies that mandate or prohibit certain contract terms. I suggest that the best agent for nonreading buyers is likely to vary for different clauses. In some, but not all situations, sellers have incentives to include terms that serve buyer interests. In other situations, sellers may insert clauses that appear to serve seller interests, but sellers may invoke their rights under those clauses only when it is likely that buyers are acting exploitatively. Sellers who use clauses to avoid such observable, but nonverifiable acts of buyer misbehavior may actually serve the interests of the majority of buyers. Sellers will not have incentives to consider buyer interests with respect to other clauses, however. In those cases, courts or agencies may be superior surrogates for buyers. Nevertheless, courts and agencies suffer from their own biases, so that the legal rules that they impose will not necessarily reflect the interests of buyers at large. Thus, rather than approve or condemn the practice of rolling contracts generally, the proper analysis requires a nuanced view that identifies when market mechanisms are likely to internalize the interests of nonreading buyers and when legal actors can better fulfill that role.

Posted by Lawrence Solum at 5/17/2004 06:05:54 AM

Benoliel on Cyberspace & Privacy Daniel Benoliel (University of California, Berkeley - School of Law (Boalt Hall)) has posted Law, Geography and Cyberspace: The Case of On-Line Territorial Privacy on SSRN. Here is the abstract:

Territorial privacy, one of the central categories of privacy protection, involves setting limit boundaries on intrusion into an explicit space or locale. Initially, the Restatement (Second) of Torts, which defined the privacy tort of intrusion, as applied by courts, most notably designated two classes of excluded areas: "private" places in which the individual can expect to be free from governmental intrusion, and "non-private" places, in which the individual does not have a recognized expectation of privacy. The designation of an area as "private" then also protected the personal information located there from governmental seizure. In the real world, courts ultimately held almost uniformly that the tort of intrusion could not occur in a public place or in a place that may be viewed from a public place. Cyberspace, on the other hand, was not left with a public sphere nor has a balanced territorial privacy policy so far been established. Instead, based on the category of database privacy protection, only an ownable-based private privacy legal rule was adopted and too widely so. One of the main explanations for this anomaly, in fact, derives from cyberspace's unique architecture. While the real world is subject to a default rule of a continuous public sphere that is then subject to distinct proprietary private sphere allotments; Cyberspace architecture, on the other hand, imbeds a different structure. In the latter, apart from the Internet's "public roads" or backbone transit infrastructure, which is regulated according to telecommunications and antitrust law, the present default rule contains a mosaic of private allotments - namely, neighboring proprietary web sites. This anomaly is even more acute given that the U.S government, the FTC and theoreticians alike, thus far, have developed neither comprehensive nor supportive boundary theory that could maintain territorial privacy. All three, instead, have implicitly or explicitly only considered technocentristic boundary approaches. From a legal perspective the factual truths or scientific hypothesis underlying the existence of on-line spatiality, as discussed notably in the works of Johnson and Post, Lessig, Hunter, Lemley and others, should, instead, be only a parameter in establishing legal truth. In compliance with what is an alternat ive localist boundary approach, this study suggests that law, indeed, could construct a legal fiction of on-line locales, through which territorial privacy, ultimately, could be integrated into cyberspace privacy policy at large.

Posted by Lawrence Solum at 5/17/2004 06:04:00 AM

Moving Day Bookmark the new address for Online Papers in Philosophy. And here is the new ULR for the excellent Freespace.

Posted by Lawrence Solum at 5/17/2004 06:01:26 AM

Call for Papers: Theoretical Inquiries in Law

Theoretical Inquiries in Law http://www.bepress.com/til/ Publisher: The Cegla Center for Interdisciplinary Research of the Law of the Tel Aviv University Faculty of Law The Journal specializes in the application to legal problems of insights developed in other disciplines, such as moral and political theory, epistemology, social sciences, economics and game theory, probability theory, and cognitive psychology. The range of issues dealt with by the Journal is virtually unlimited, in line with its commitment to cross-disciplinary cultivation of ideas. Contributors to the Journal are distinguished legal scholars working in different "law and ..." areas. The Journal strives to offer a forum for contributions to legal theory by scholars working in disciplines outside of law. The electronic version appears continuously, whereas the paper version is published twice a year, in January and July. The journal publishes articles that are presented at international conferences organized by the Cegla Center in Tel Aviv. ISSN: 1565-3404 Email: cegla@post.tau.ac.il Abstracts available online. Articles available as PDF files. Current Issue: Volume 5 Number 1 2004 Date: 11 May 2004

Posted by Lawrence Solum at 5/17/2004 06:00:08 AM

Sunday, May 16, 2004

Legal Theory Calendar

Monday, May 17

Caring and Internality

Tuesday, May 18

Constitutional Theory: Sovereignty and Legal Systems

Nietzsche and the Moral Interpretation of Existence

Wednesday, May 19

Marx's Commodity Fetishism and Wittgenstein's Grammatical Confusion

The Ontological Status of Persons: Why it Matters

Thursday, May 20

Deregulation and the Incomplete Regulatory Contract

Official Representation of Religion in National Assemblies or �Is half a loaf better than no bread?

Interdicting Weapons of Mass Destruction at Sea

Posted by Lawrence Solum at 5/16/2004 04:03:02 PM

Legal Theory Lexicon: Indeterminacy

Introduction

The laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.

the indeterminacy thesis

The Indeterminacy Debate

What does the indeterminacy thesis mean?

the indeterminacy thesis

Indeterminacy versus Underdeterminacy

The law is determinate with respect to a given case if and only if the set of legally acceptable outcomes contains one and only one member.
The law is underdeterminate with respect to a given case if and only if the set of legally acceptable outcomes is a nonidentical subset of the set of all possible results.
The law is indeterminate with respect to a given case if the set of legally acceptable outcomes is identical with the set of all possible results.

Hard Cases

Is the law radically indeterminate?

The Strong Indeterminacy Thesis:

The Argument from Easy Cases

Consider the following case, consisting of facts, a legal rule, and a legal event. First, postulate the following set of events and actions: Ben visited Point Magu State Beach in Ventura County, California between the hours of 12:30 p.m. and 4:00 p.m. on Sunday, February 14, 2004. Second, consider the following legal rule: Section 2 of the Sherman Antitrust Act states, "Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . ." (26 Stat. 209 (1890)). Third, consider the following claim about a possible case: Ben's visit to the beach on the date and time specified would not constitute a violation of Section 2 of the Sherman Act. In order fully to convince you of this, I would need to tell you more about what went on at the beach on that day. The details will include Ben's looking at the ocean, speaking with friends about politics, reading a book, and so forth. Children flew kites; a friend grilled chicken and hot dogs. You might want to know whether Ben discussed any business dealings at the beach: he did not. But no matter how many questions you asked, no matter how hard you tried, you would not be able to make out a legally valid case that the Sherman Act was violated. If a prosecution were filed against Ben based only on the events specified, a verdict of guilty would be legally incorrect. This is not to deny that it is possible that things would go wrong in some way. Perjury might be committed; the judge assigned to the case might be deranged. Our system of justice is hardly foolproof, but that does not entail the further conclusion that any result is legally correct.

Changing the Hypothetical

Is a modest version of the indeterminacy thesis defensible?

Important Cases

Conclusion

On the Indeterminacy Crisis: Critiquing Critical Dogma

online here

For a complete collection of the Legal Theory Lexicon posts with a table of contents, click here.

Posted by Lawrence Solum at 5/16/2004 09:00:11 AM

Saturday, May 15, 2004

Taxing Punitive Damages Over at That's News to Me, check out Punitive Damages in the Extended Sphere. Here's a taste:

Governor Schwarzenegger's new budget includes a provision giving state government (through a trust) 75% of any punitive damage award. A representative for the Governor justifies this idea by arguing that "the money should go to the public good." I think this fits with some views on punitive damages, but not the Supreme Courts'.

Posted by Lawrence Solum at 5/15/2004 12:46:31 PM

Bertram on the Best in Recent Political Philosophy Anyone who reads LTB will want to look at Chris Bertram's post on Crooked Timber Best political philosophy/theory papers Here is his list:

Thomas Pogge, �An Egalitarian Law of Peoples�, Philosophy and Public Affairs (1994). G.A. Cohen, �Where the Action Is� , Philosophy and Public Affairs (1997). Michael Ridge, �Hobbesian Public Reason�, Ethics (1998). Elizabeth Anderson, �What is the point of equality?� Ethics (1999). David Schmidtz, �How to Deserve�, Political Theory (2002).Be sure to check out the comments to Bertram's post.

Posted by Lawrence Solum at 5/15/2004 11:54:20 AM

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The New Constitutional Order (linked fixed) by Mark Tushnet (Amazon here):

In his 1996 State of the Union Address, President Bill Clinton announced that the "age of big government is over." Some Republicans accused him of cynically appropriating their themes, while many Democrats thought he was betraying the principles of the New Deal and the Great Society. Mark Tushnet argues that Clinton was stating an observed fact: the emergence of a new constitutional order in which the aspiration to achieve justice directly through law has been substantially chastened. Tushnet argues that the constitutional arrangements that prevailed in the United States from the 1930s to the 1990s have ended. We are now in a new constitutional order--one characterized by divided government, ideologically organized parties, and subdued constitutional ambition. Contrary to arguments that describe a threatened return to a pre-New Deal constitutional order, however, this book presents evidence that our current regime's animating principle is not the old belief that government cannot solve any problems but rather that government cannot solve any more problems. Tushnet examines the institutional arrangements that support the new constitutional order as well as Supreme Court decisions that reflect it. He also considers recent developments in constitutional scholarship, focusing on the idea of minimalism as appropriate to a regime with chastened ambitions. Tushnet discusses what we know so far about the impact of globalization on domestic constitutional law, particularly in the areas of international human rights and federalism. He concludes with predictions about the type of regulation we can expect from the new order. This is a major new analysis of the constitutional arrangements in the United States. Though it will not be received without controversy, it offers real explanatory and predictive power and provides important insights to both legal theorists and political scientists.Tushnet is one of the very best. Highly recommended!

Posted by Lawrence Solum at 5/15/2004 10:29:29 AM

Download of the Week This week, the Download of the Week is Does History Defeat Standing Doctrine? by Ann Woolhandler and Caleb Nelson. Here is the abstract:

Although the modern Supreme Court claims historical support for refusing to let private parties who have suffered no concrete private injury ask federal courts to redress harms to the public at large, academic critics have insisted that the law of standing is a twentieth-century invention of federal judges. In earlier eras, the critics argue, the recognized forms of action might have required plaintiffs to have particular injuries in order to make out specific claims, but there was no generalized standing law, and certainly no constitutional requirement of individualized injury for people challenging governmental action. This article disagrees. In the nineteenth century, courts enforced an active law of standing (although not so called) that cut across various causes of action, and that reflected the distinction between public and private rights. Courts regularly designated some areas of litigation as being under public control and others as being under private control. What is more, and contrary to the standing critics, the Supreme Court often did discuss these issues in constitutional terms, particularly in actions against federal and state governmental officials. We do not claim that history compels acceptance of the modern Supreme Court�s vision of standing, or that the constitutional nature of standing doctrine was crystal clear from the moment of the founding on. The subsistence of qui tam actions alone might be enough to refute any such suggestion. We do, however, argue that history does not defeat standing doctrine; the notion of standing is not an innovation, and its constitutionalization does not contradict a settled historical consensus about the Constitution's meaning.Download it while its hot!

Posted by Lawrence Solum at 5/15/2004 10:23:17 AM

Jurisprudence and Legal Philosophy
Law and Economics
Legal History
Law and Humanities
Constitutional Law
Cyberspace Law
Discrimination, Law, & Justice
Legislation and statutory interpretation
Public Law and Legal Theory
Top Ten Overall for the Legal Scholarship Network

Posted by Lawrence Solum at 5/15/2004 09:35:05 AM

Welcome to the Blogosphere . . . to Public Defender Dude.

Posted by Lawrence Solum at 5/15/2004 07:58:19 AM

National Transparency Day Read all about it on TaxProf Blog.

Posted by Lawrence Solum at 5/15/2004 07:49:45 AM

Friday, May 14, 2004

Minor Updates to Entry Level Hiring Post I've made a few minor changes, adding just a bit more data to the report on Entry Level Hiring.

Posted by Lawrence Solum at 5/14/2004 04:28:24 PM

Precedent and High Politics

[I]f [Solum] accepts the common law tradition as part of what he means by formalist judging, then it's not clear how much he and I disagree, and I'm proud to sign on as a formalist.--Jack Balkin.

Introduction

and should be

Understanding the Constitutonal Revolution

online version here

It is perfectly normal for Presidents to entrench members of their party in the judiciary as a means of shaping constitutional interpretation. That is the way most constitutional change occurs.

We should make a distinction between two kinds of politics--"high politics," which involves struggles over competing values and ideologies, and "low politics," which involves struggles over which group or party will hold power. In [Board of Trustees of the University of Alabama v.] Garrett the five conservatives seem to be clearly *1063 engaged in "high politics"--the promotion of certain core political principles in constitutional doctrine. By contrast, Bush v. Gore seems to involve "low politics"--with the five conservatives adopting whatever arguments were necessary to ensure the election of the Republican candidate, George W. Bush.

The distinction between high and low politics is important because it suggests two different sorts of criticisms that one might make about the Court's behavior during a period of constitutional revolution. As we shall argue in more detail later on, constitutional revolutions always concern "high politics"--the promotion of larger political principles and ideological goals. This was true during the New Deal and it is true today. . . . But the objection to Bush v. Gore is quite different. The result in Bush v. Gore is not easily explained as the promotion of principles of "high politics."

One very interesting question about Balkin and Levinson's theory concerns the relationship between high political campaigns for constitutional change and the doctrine of precedent (or stare decisis).

Formalism and High Politics

a recent post by Matthew Yglesias

The Aretaic Turn in Constitutional Theory

High Political Respect for Precedent

existing precedents usually underdetermine the results of the sorts of cases that tend to come before the Supreme Court

exactly

What is "Respect for Precedent"?

Step One: Distinguishing Force and Content

No surprise, that turns out to be quite a question!

force

content

vice versa

Step Two: The Force of Precedent

No Force. Precedent might have absolutely no authority at all. This view is obviously inconsistent with affirmation of "respect for precedent."
Presumptive Force. A second possibiity is that the existence of a precedent might create a rebuttable presumption in favor of the rule announced by the precedent. In its weakest form, this would be a "bursting bubble" presumption, which could be overcome by any reason to depart from the precedent.
Prudential Force. A third possibility is that the existence of a precedent might provide prudential reasons for following the existing rule. These prudential reasons would include, for example, (i) the disutility of upsetting existing expectations, (ii) the cost of rethinking the issue and formulating a new rule, (iii) the costs of disseminating and implementing the new rule, and (iv) the long-range benefits and generalized benefits of sticking to the old rule on this occasion and hence reinforcing the general perception that precedents can be relied upon for planning purposes. Prudential force is not "authority," it is simply giving due weight to the fact that a rule exists and that rule changes are costly.
Gravitational Force. Borrowing a metaphor from Dworkin, we might think that precedents have something like "gravitational force." As I am using the metaphor, I mean it to represent the idea that a precedent tugs in a certain direction. This is more than mere presumptive or prudential force--the tug is real or "weighty" independent of the costs and benefits of adhering to the precedent. But gravitational force is not binding; it is not a content-independent preemptory reason for action.
Binding Force. Finally, we might view precedent as binding. That is, we might view precedents as providing reasons for action that are content independent and preemptory. This is the way that lower courts are (in theory) obliged to treat the decisions of higher courts.

stare decisis

binding force

Step Three: Content

Well, it all depends on what you mean by "quite flexible," doesn't it?

Llewellyn Revisted

On the case law side, [Karl Llewellyn] tried to persuade lawyers and judges respectively to understand and to craft the law so that the "fixed core" of any precedent could be reasonably clearly discerned. On the other hand, broader dicta connecting underlying principles with a concrete factual situation might give guidelines for future development down the open- ended lane of precedent. Llewellyn was distressed that, as he saw it, a crisis of confidence in the law had developed. Indeed, it is likely that he had something of a guilty conscience about it, since the notion that anything goes in law had perhaps been given some impetus by realism. His last book aimed to put the record straight, to restore confidence by showing that his message was misunderstood. Rule skepticism was never a doubt about the possibility or desirability of rules, only a campaign against the wrong approach to reading the materials for the rules they expressed and against a wooden style of setting or applying precedents from the bench.

phronimos

nominos

Phronesis

nominos

Step Four: Questions for Balkin

When Precedent Runs Out

Conclusion

Balkin and Levinson's article

P.S. For a prior exchange with Balkin on formalism and high politics, see Fear and Loathing in New Haven and A Neoformalist Manifesto.

Posted by Lawrence Solum at 5/14/2004 12:22:34 PM

Friday Calendar No events on the calendar today, as terms are winding down.

Posted by Lawrence Solum at 5/14/2004 11:51:11 AM

Modeling Judicial Attitudes

Introduction

Feasible Choices

Improving the Model

Majoritarianism, Formalism, and the Feasible Choice Set

Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy

Judicial Selection: Ideology versus Character

[Solum models judicial dispositions] on a two-dimensional scale with one axis representing their left-right political views and another axis representing their formalist-realist jurisprudential inclinations. A moment's reflection will reveal that this is a simplification -- famously, there's more to politics than simply left vs. right, and this is especially the case in the judiciary. Similarly, there is no "formalist" camp in the world of judging, but rather a variety of purportedly formalist schools of thought, of each which believes itself to [be] The One True Formalism.

_____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right

In Defense of the Two Dimensional Model

Can political ideology be modeled as a point on a left to right real line?

why

Can judicial philosophy be modeled as a point on a real line?

Formalist Constitutionalism or Quasi-Parliamentarianism?

Improving the Model

An Example: The Barnett Nomination

Volokh Conspirator

Randy Barnett

He believes that judges should feel free to overrule long-established precedents in order to restore the "Lost Constitution" of original meaning.

First,

stare decisis

Second,

in depth

stare decisis

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

Majoritarianism, Formalism, and the Feasible Choice Set

Third,

phronimos

nominos

nomoi

The Yglesias Multidimensional Model

A more accurate model would not support the conclusion Solum wants. The Solum model requires that formalism be (a) unitary and (b) without any political valence. Both are false. Formalist doctrine comes in several varieties each of which supports a distinct set of policy outcomes. The true shape of the feasible choice set is unlikely to bear a great resemblance to Solum's.

Update:

Improving the Model

Posted by Lawrence Solum at 5/14/2004 11:50:47 AM

Thursday, May 13, 2004

The Ninth Amendment Debate: Liberty versus Popular Sovereignty

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Introduction

Restoring the Lost Constitution

The Rights Retained by the People: Volume One

Volume Two

Reconceiving the Ninth Amendment

The Lost History of the Ninth Amendment (I): The Lost Original Meaning

The Lost History of the Ninth Amendment (II): The Lost Jurisprudence

Rights and Federalism

What is the Ninth Amendment debate about?

rights

Appearances Are Deceiving

What? Why not?

rights interpretation

Hold on there. You are making it sound like Barnett and Lash actually agree. If that's so, what is all the fuss about?

disagree

agree

meaning

effect

Meaning and Effect

why

meaning

effect

Barnett believes that the meaning of the Ninth Amendment focuses on individual rights, and that an effect of the Ninth Amendment is to limit the power of the national government and hence to protect the powers of the states.

Lash believes that the meaning of the Ninth Amendment focuses on federalism, and that an effect of the Ninth Amendment is to protect individual rights from invasion by the national government.

why

how

meaning

Two Interpretations of "Rights Retained by the People"

All of that was very abstract, can you be more specific? Just how do Barnett and Lash disagree about meaning?

Barnett believes that the rights retained by the people are fundamentally individual rights.

Lash believes that the rights retained by the people are fundamentally political rights.

The Unavailability of Decisive Cases

Who is right, Lash or Barnett?

both

if so

The Text of the Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

direct role

The Direct Role and the Evidentiary Role

evidentiary role

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

are

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others [rights, which may or may not be] retained by the people.

direct role

evidentiary role

[O]ther rights [in addition to the certain rights enumerated in the Constitution] are retained by the people.

entirely

but

The Ninth and the States

direct role

A Deeper Level of Disagreement: Liberty and Popular Sovereignty

direct role

evidentiary role

Restoring the Lost Constitution

The Presumption of Liberty

The Structure of Liberty

yet

The Burdens of Reason and Deep Commitments

Mutual Inclusion

view

Theory and Practice

impatience

theoretical

The Hermeneutic Circle

Conclusion

How fortunate we are to have two such able representatives for two great constitutional theories, Barnett, the friend of liberty, and Lash the champion of popular sovereignty, reenact that great debate in the here and now, with the Ninth Amendment, the Delphic oracle of constitutional theory, as the platform they share.

Posted by Lawrence Solum at 5/13/2004 02:05:37 PM

Thursday Calendar

Return of the Great Writ: Judicial Review of the Detention of Alleged Terrorists as Enemy Combatants

Hilary Putnam's Pragmatism

Posted by Lawrence Solum at 5/13/2004 07:56:05 AM

Barnett's Challenge On the Volokh Conspiracy, Randy Barnett has a post entitled Originalist Sacrifices. Here is a taste:

A commitment to a written Constitution, however, requires either that one put the law represented by the Constitution ahead of one's even deep-seated desires, or that one candidly reject the Constitution as so morally deficient as to lose its status as binding authority. What is improper is both to jettison the written Constitution AND to wrap oneself in its mantle.And Barnett then offers an example of a way in which originalism goes against his own libertarian views--the establishment clause,he argues, does not support his libertarian views on the relationship between church and state:

I do not believe that the First Amendment mandates the separation of church and state much as I wish it did. The very words of the First Amendment belie this claim. It says that "Congress shall make no law respecting an establishment of religion." Unless I discovered evidence to the contrary--and I have done no independent originalst research on this issue--this merely commands that Congress not itself establish an official religion, nor interfere with state governments that do establish religion. Making "no law respecting" is a command for complete hands off on the subject of establishment, one way or the other.So Barnett issues the following challenge:

I also pose the following challenge to those who favor state endorsement of religion at the state level: if you are willing to modify your commitment to the entire Constitution when parts of it get in your way--in order to reach, e.g., private homosexual conduct--can you offer a principled reason why I could not use your interpretive method to evade the original meaning of the Establishment Clause and the Privileges or Immunities Clause of the Fourteenth Amendment to effectuate a separation of church and state that conflicts with the original meaning of both?

Posted by Lawrence Solum at 5/13/2004 07:49:10 AM

Symposium Announcement: Empirical Measures of Judicial Performance

Empirical Measures of Judicial Performance: A Florida State University Law Review Symposium Issue

-Is it appropriate to measure and rank judicial performance? -How should one do these measurements? -What would be the incentive effects of doing this?

Contributors:

-Mita Bhattacharya & Russell Smyth, Monash University Department of Economics -James J. Brudney, Ohio State University College of Law -The Honorable Jay Bybee, U.S. Court of Appeals for the Ninth Circuit -Stephen Choi & Mitu Gulati, Boalt Hall School of Law -- UC Berkeley & Georgetown University Law Center -Brannon Denning, Samford University, Cumberland School of Law -Lee Epstein & Nancy Staudt, Washington University-St. Louis School of Law -Daniel Farber, Boalt Hall School of Law -- UC Berkeley -Tracey George, Northwestern University School of Law -Michael Gerhardt, William & Mary School of Law -Steven Gey, Florida State University College of Law -Steven Goldberg, Georgetown University Law Center -John V. Orth, University of North Carolina School of Law -The Honorable Richard Posner, U.S. Court of Appeals for the Seventh Circuit -B.J. Priester, Florida State University College of Law -Jim Rossi, Florida State University College of Law -The Honorable Bruce Selya, U.S. Court of Appeals for the First Circuit -Michael Solimine, University of Cinncinatti School of Law -Lawrence Solum, University of San Diego School of Law -Ahmed Taha, Wake Forest University School of Law -David Vladeck, Georgetown University Law Center

Posted by Lawrence Solum at 5/13/2004 06:59:00 AM

Call for Papers: Trade as the Guarantor of Peace, Liberty, and Security

CALL FOR PAPERS AMERICAN SOCIETY OF INTERNATIONAL LAW, INTERNATIONAL ECONOMIC LAW INTEREST GROUP (IELG) ANNUAL MEETING February 24-26 2005 Washington D.C. TRADE AS THE GUARANTOR OF PEACE, LIBERTY AND SECURITY? "Trade is the principal guarantor of peace in the World." John Stuart Mill The 19th century French economist, legislator and writer Claude Bastiat is widely quoted as saying "if goods do not cross borders, armies will." The view of free trade as a promoter of peace and liberty has been embraced by many Philosophers, from Immanuel Kant ("The spirit of trade cannot coexist with war.") to Ralph Waldo Emerson ("The philosopher and lover of man have much harm to say of trade; but the historian will see that trade was the principle of liberty.") This conference examines the validity of this belief, from both historical and modern day perspectives. The aim of the conference is to explore the relationships between the ideology of free trade and ideals of liberty, human dignity and peace. Does the modern day experience with international trade and business support the view that trade is a guarantor of peace and liberty? For example, does the fact that certain regions of the world, such as the Middle East, are largely excluded from the current multilateral trading system support or conflict with the vision of trade as a guarantor of peace? Is the metamorphosis of the European Steel and Coal Community into the European Union an anomaly or the future paradigm? If business is a cultural artifact, do rules that promote transnational business enhance sharing or imperialism? Is there a tension between regionalism and globalism? In addition to peace, is there a relationship between trade and concepts such as unity or equality? Are new organizations required to manage a relationship between trade and peace and liberty? To what extent do the rules and underlying policies of the current multilateral trading system help promote global peace? If Justice is a prerequisite to Peace, to what extent, if any, does trade address Justice? To what extent is or should a "democracy clause" be included in trade agreements? Is the inclusion of such a clause based on the view that democracies do not go to war with one another? PAPER SUBMISSIONS: This call for papers invites submissions that relate to the general theme of the conference. All types of submissions including interdisciplinary work are welcome. Papers can be historical, theoretical, or empirical, and can address broad linkages or specific questions, global regimes or regional structures. SUBMISSION PROCEDURE: Submissions of abstracts of papers (no more than three (3) pages in length) should be sent to the following current IELG Co-Chairs no later than Friday May 21, 2004: CONTACT: Padideh Alai Professor of Law American University Washington College of Law 4801 Mass Ave. Suite 330 Washington D.C. 20016 Fax: (202) 274-4130 Email: MAILTO:palai@wcl.american.edu AND CONTACT: Phil Nichols Associate Professor of Legal Studies The Wharton School of the University of Pennsylvania 3702 Walnut Street Philadelphia, Pennsylvania 19104 Fax: (215) 573-2006 Email: MAILTO:nicholsp@wharton.upenn.edu The IELG Annual Meeting Planning Committee will review the papers and the authors of the abstracts that are picked for presentation at the annual conference and possible subsequent publication in a symposium journal will be informed by no later than the end of June 2004.

Posted by Lawrence Solum at 5/13/2004 06:11:14 AM

Wednesday, May 12, 2004

Formalist Constitutionalism or Quasi-Parliamentarianism?

Introduction

Originalism & Liberty

Larry Solum on the Barnett Kerfuffle

The Bainbridgean Argument for Judicial Nullification of the Constitution

Responding to Solum

Majoritarianism, Formalism, and the Feasible Choice Set

Bainbridge v. Solum: Round [I've lost count]

Clash and Consensus

unbounded judicial interpretation of the constitution threatens the rule of law

not

What I've Learned

The Role of the Legal Academy

I agree with both points. Legal education is critical because it has a shaping effect on the legal culture, and realism currently dominates the legal academy.

Of course, Bainbridge's point applies with substantial force to his own preferred alternative--a transition to a quasi-parliamentary system.

Why?

Because the same realist heritage that poses an obstacle for neoformalism also has inculcated "judicial supremacy" as a basic tenet of our legal culture.

Brown v. Board

Brown

Griswold

Roe

The Path to Bainbridgean Quasi-Parliamentarianism

The nuclear option. Section 2 of Article III of the Constitution provides: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Let Congress exercise that power.

Wow!

But

not

In other words, the elimination of judicial review through ordinary jurisdictional legislation is "pie in the sky," unless there is a fundamental realignment of political forces.

The Feasibility of Formalism

Is Formalism Tilted?

Majoritarianism, Formalism, and the Feasible Choice Set

[F]ormalism will be perceived as having an ideological component, then Solum's feasibility argument collapses because formalists will be perceived (often wrongly) by the left as being unconfirmable rightwingers.

stare decisis

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

stare decisis

Update:

Feasible Choices

Has the Virtue of Justice Vanished?

Great question!

A Meta-Theoretical Point About Feasibility

How should legal theorists argue about feasibility?

Bainbridge�s argument relies in a crucial way on our intuitive sense of what is feasible and what is utopian. But feasibility isn�t really an intuitable quality!

What else do we have to rely on? Solum and I agree that the system is broken. Solum says: Let's try "Aretaic Judicial Selection." I say "It won't work." We're both making predictions. We both must make our best guess as to what the future would hold under specified conditions. If politics is the art of the possible, we have to use our informed intuition as to what is possible.

Conclusion

Be sure to read his lastet post in full!

Posted by Lawrence Solum at 5/12/2004 01:37:14 PM

Forbath on Ferejohn & Sager William E. Forbath (University of Texas at Austin - School of Law) has posted The Politics of Constitutional Design: Obduracy and Amendability - A Comment on Ferejohn and Sager (Texas Law Review, Vol. 81, p. 1966, 2003) on SSRN. Here is the abstract:

John Ferejohn and Larry Sager's contribution to this Symposium on Precommitments offers an elegant and important argument in praise of Article V and the obduracy of the United States Constitution. I think it is wide of the mark. For them, the key purpose served by obduracy is this: A constitution as hard to amend as ours will be more likely than others to assure the realization of that constitution's substantive normative commitments - more likely, that is, to bring to earth the constitution's commitments to liberty, equality, and the like. But Ferejohn and Sager's argument is too categorical to persuade. True, a significant degree of obduracy may help attain the constitutional goods they highlight: broadly worded justice-seeking amendatory language, and constitutional courts authorized and able to make the commitments workable and real. However, both logic and experience suggest that amendment rules need not be remotely as obdurate as ours to provide what support such rules can offer to securing those goods. More than that, obduracy on the order of the U.S. Constitution may actually erode and thwart a nation's capacity for realizing many of its deepest constitutional commitments. Ferejohn and Sager's commitment-centered case on behalf of Article V rests on a court-centered model of how the Constitution's substantive commitments have been elaborated and enforced. According to this model, popular challenges to judicial interpretations have been a threat to the realization of those commitments. Because popular oversight of the process of constitutional interpretation and enforcement is a threat, we are fortunate that Article V makes such involvement and oversight an extremely daunting, protracted and procrastinating process. But this model is too simple by half. Popular constitutional politics, including popular challenges to judicial interpretations, have had a more complex relationship to judge-made constitutional law. Popular political challenges have been both a threat to and an essential source of the justice-seeking elaboration of the Constitution's substantive commitments. Social movements, including popular efforts to amend the Constitution, have proved an indispensable crucible of the very judicial interpretations Ferejohn and Sager prize. A Constitution too obdurate can and, in several important cases, has stifled this generative process. If that is the case, then the design objective Ferejohn and Sager invoke in defense of obduracy demands instead a balancing of obduracy and amendability; or so this essay argues, via whirlwind tour of twentieth-century U.S. constitutional history and a comparative coda that takes a glimpse at how well the experience of other nations seems to square with Ferejohn and Sager's thesis.

Posted by Lawrence Solum at 5/12/2004 11:02:46 AM

Yuracko on Trait Discrimination Kim Yuracko (Northwestern University School of Law) has posted Trait Discrimination as Sex Discrimination: An Argument Against Neutrality (Texas Law Review, Vol. 83, 2004) on SSRN. Here is the abstract:

Title VII prohibits discrimination whereby women or men are denied employment opportunities because of their status as such. Much of the employment discrimination taking place today, however, targets not all women or men, but only those with particular traits or characteristics - for example, women who are aggressive, or men who are effeminate. This article addresses the question of when, if ever, "trait discrimination" is actionable sex discrimination under Title VII. The dominant response advocated by scholars has been to require employers to act in a rigid and formalistically sex-neutral manner toward their employees. If an employer allows female employees to wear dresses, the employer must allow male employees to wear dresses as well. To do otherwise is actionable sex discrimination. This paper suggests a new response to trait discrimination that returns to Title VII's original focus on ending status-based hierarchy. The power/access approach advocated in this paper treats trait discrimination as actionable sex discrimination only when it stems from gender norms and scripts that are themselves incompatible with sex equality in the workplace. The paper contends, in contrast to most current argument, that rigid sex neutrality is neither required by Title VII nor socially desirable.

Posted by Lawrence Solum at 5/12/2004 11:00:24 AM

Lash Responds to Barnett Kurt Lash responds to Randy Barnett's post entitled The Stubbornness of Facts: Judicial Conservatives and the Ninth Amendment (responding to Kurt's email posted at Lash on Barnett & the Ninth Amendment). Here are the comments that Kurt emailed for posting:

A very interesting debate!

Posted by Lawrence Solum at 5/12/2004 09:55:22 AM

Conference Announcement: Reasonable Questioning: Scanlon & the Contractualist Picture of Morality

Stephen EVERSON (York) Frances KAMM (Harvard) Jimmy LENMAN (Sheffield) Veronique MUNOZ-DARDE (UCL) David OWENS (Sheffield) T M SCANLON (Harvard) Andrew WILLIAMS (Reading)

Mark KALDERON (UCL) Hallvard LILLEHAMMER (Cambridge) Mike MARTIN (UCL) Martin O'NEILL (Harvard) Mike OTSUKA (UCL)

http://www.sas.ac.uk/philosophy/REASONABLE_QUESTIONING.htm

Posted by Lawrence Solum at 5/12/2004 09:51:57 AM

Call for Papers: Studies in the History of Ethics

legal philosophy

Posted by Lawrence Solum at 5/12/2004 09:34:06 AM

Wednesday Calendar

The One True Interpretation

Posted by Lawrence Solum at 5/12/2004 09:16:11 AM

Tuesday, May 11, 2004

Woolhandler & Nelson on Standing Ann Woolhandler and Caleb Nelson (University of Virginia - School of Law and University of Virginia - School of Law) have posted Does History Defeat Standing Doctrine? (Michigan Law Review, Vol. 102, February 2004) on SSRN. Here is the abstract:

Posted by Lawrence Solum at 5/11/2004 03:32:59 PM

Carrier on Curbing Intellectual Property Michael A. Carrier (Rutgers University School of Law - Camden) has posted Cabining Intellectual Property Through a Property Paradigm (Duke Law Journal, Vol. 54, P. 1, October 2004) on SSRN. Here is the abstract:

One of the most revolutionary legal changes in the past generation has been the "propertization" of intellectual property (IP). Rights, duration, and subject matter expand without limit, and courts and companies treat IP as absolute property, bereft of any restraints. But astonishingly, scholars have not yet recognized that propertization can also lead to the narrowing of intellectual property. In contrast to much of the literature, which criticizes the propertization of IP, this Article takes it as a given. For the transformation is irreversible, sinking its tentacles further into public and corporate consciousness (as well as the IP laws) with each passing day, and precluding the likelihood that we will return to the pre-propertization era. This Article therefore ventures onto a new path, one that follows property into unexpected briar patches of limits. The secret here is that property is not as absolute as it is often claimed to be. After surveying fifty-five doctrines in property law, Professor Carrier synthesizes limits based on development, necessity, and equity. He then utilizes these limits to construct a new paradigm for intellectual property. The paradigm facilitates the reorganization of defenses currently recognized by courts as well as a more robust set of defenses, which include (1) a new tripartite fair use doctrine in copyright law, (2) a new defense for public health emergencies and a recovered experimental use defense and reverse doctrine of equivalents in patent law, (3) a development-based limit to trademark dilution, and (4) a functional use defense for the right of publicity. By adopting the paradigm of property, intellectual property has opened the door to limits. The time has come to rediscover these limits. The future of innovation and democracy lie in the balance.

Posted by Lawrence Solum at 5/11/2004 03:30:57 PM

Spiro Reviews Aleinikoff Peter J. Spiro (Hofstra University School of Law) has posted The Impossibility of Citizenship (Michigan Law Review, Vol. 101, pp. 1492-1511) on SSRN. Here is the abstract:

This essay reviews T. Alexander Aleinikoff's Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard University Press, 2002). The book considers the constitutional marginalization of Native Americans, aliens, and residents of Puerto Rico and other unincorporated territories. In Aleinikoff's view, citizenship supplies both the explanation for and the answer to the subordination of these communities. Citizenship has been a powerfully equalizing force in the American constitutional tradition for those within the circle. Insofar as rights have been made contingent on citizenship status, however, those outside are left without constitutional armor. Aleinikoff suggests a reconception of citizenship, extending core constitutional status to those for whom citizenship is not a constitutional entitlement (namely, Native Americans and territorial residents) as well as to some who are not citizens at all (permanent resident aliens). With citizenship as a baseline, the argument is a powerful one. But one might at a more fundamental level question the continuing utility of that baseline and of citizenship as an institution. An emerging body of postnational scholarship is challenging citizenship and the nation-state as delimitations of human community, posing instead diasporas, social movements, and other nonstate groupings as competing locations of identity and governance. Aleinikoff brackets the postnational assault; he is seeking to transform citizenship, not transcend it. In this respect, the analysis presents more of an exercise in recentering citizenship than - as claimed - one of decentering it. But the postnational challenge is unavoidably implicated in any attempt to deploy citizenship as an institutional vehicle. Even as an expansive and benign quantity, Aleinikoff's vision of citizenship may suffer the same problems as its exclusionary predecessors: however the circle is drawn, many are left out, including many with deep attachments to the national community. To the extent, on the other hand, that the circle is drawn ever more widely, the tie that citizenship is understood to represent grows ever thinner. This dynamic would seem to present an inescapable dilemma for the institution of liberal citizenship, and perhaps for liberalism itself.

Posted by Lawrence Solum at 5/11/2004 03:27:38 PM

Zaring on Institutional Reform Litigation David T. Zaring (New York University - School of Law) has posted National Rulemaking Through Trial Courts: The Big Case and Institutional Reform (UCLA Law Review, Vol. 51, No. 1015, 2004) on SSRN. Here is the abstract:

Institutional reform lawsuits - big cases involving the structural reform of local government entities such as prisons and housing authorities - have traditionally been analyzed in two ways: either as unique exercises of judicial power or as party-driven examples of small-scale government by negotiation. To these traditional descriptive approaches, this article adds a third. If examined through a wider lens, institutional reform litigation has national, systemic implications, and, indeed, can create uniform federal law. This law is not imposed vertically, by appellate tribunals, but rather spreads horizontally, from trial court to trial court, like nodes in a nationwide network. The article accordingly focuses on the structural character of institutional reform litigation from a national perspective. As it turns out, the system operates through information exchanges by repeat players who participate in multiple institutional reform cases, most commonly as counsel or expert witnesses, but also as parties (or, occasionally, judges) involved in multiple lawsuits. These participants facilitate the adoption of common standards by preferring familiar remedies, by valuing interoperability between cases, and by succumbing to the inertial momentum that these preferences, when placed in the context of the system, can create. The result is a different kind of law, one low on reasoned elaboration and high on best-practices-style copying. The article describes the phenomenon and analyzes it through two qualitative case studies. It also reviews the prior literature on institutional reform litigation and compares the network to other examples of regulatory standardization from below. Although principally descriptive, the article concludes with a brief evaluation of the implications of ad hoc standardization through trial court litigation.

Posted by Lawrence Solum at 5/11/2004 03:25:43 PM

Petit on the Ninth, Glorious or Otherwise Over at Scrivener's Error, C.E. Petit has a post entitled The Not-So-Glorious Ninth, commenting on recent posts by Bainbridge and myself.

Posted by Lawrence Solum at 5/11/2004 03:19:08 PM

Barnett on Lash Over at the Volokh Conspiracy, Randy Barnett assesses Kurt Lash's recent scholarship on the Ninth Amendment in a post entitled The Stubbornness of Facts: Judicial Conservatives and the Ninth Amendment. As readers of this blog know, I'm a big fan of both Kurt and Randy's work. Randy's post is just the first move in what is likely to be a very illuminating debate--most of which will likely be conducted in the law journals rather than the blogosphere.

Posted by Lawrence Solum at 5/11/2004 10:58:06 AM

Tuesday Calendar

Sarbanes-Oxley Act and the Making of Quack Corporate Governance

Back to the Future: The New General Common Law

Posted by Lawrence Solum at 5/11/2004 10:52:21 AM

Monday, May 10, 2004

Moving Day Displacement of Concepts has a new URL: http://lawblog.uea.ac.uk/

Posted by Lawrence Solum at 5/10/2004 07:35:18 PM

More on the Privileges and Immunities Clause Judge Michael McConnell (in my view one of the very best appellate judges on the federal bench) writes to remind me that my post on Originalism & Liberty left out one the major interpretation of the privileges or immunities of citizens: that it protects rights recognized by a consensus of the states (not unanimous) over a reasonably long period of time. Judge McConnell has labeled this traditionalist interpretation. He defends it in The Right to Die and the Jurisprudence of Tradition, 1997 Utah L Rev. 665 and Originalism and the Desegregation Decisions, 81 Va L Rev 947, esp 990-1043. I have always been attracted by this interpretation. My sense is that on the state-consensus interpretation of the Clause, Lawrence might be considered premature--incorporating the right before the consensus among the states was sufficiently wide and deep.

Posted by Lawrence Solum at 5/10/2004 04:21:34 PM

Majoritarianism, Formalism, and the Feasible Choice Set

Introduction

a characteristically thoughtful reply

The Bainbridgean Argument for Judicial Nullification of the Constitution

Lawrence v. Texas

The Aretaic Turn in Constitutional Theory

Bainbridge�s Radical Suggestion

In other words, Bainbridge has a theory of constitutional interpretation that would give judges the authority to enact Bainbridge's preferred political theory into constitutional law.

that is unlimited legislative power without constitutional protection for individual liberty.

plus

sometimes

should be

Jack Balkin

Trying Times

even the pretence

Judging by Ideology

The Formalist Alternative

If I might be permitted a rhetorical flourish, realism is not a theory, it is a vice--a defect of judicial character.

Judicial Selection: Ideology versus Character

Bainbridge�s Reply: The Feasibility Objection

Believing we can get to Solum's attractive vision of the judiciary requires us to assume that Presidents can be induced to make disinterested and fully informed decisions about judicial nominations - that they will in fact nominate judges who can be predicted with confidence to hold to the formalist approach. Then you have to believe that the incredibly broken Senate process of advice and consent can be reformed so that disinterested Senators will make fully informed decisions to approve only those judges who can be counted on (with perfect foresight) to adhere to the formalist approach. Finally, you have to assume that judges will be disinterested decisionmakers who can apply the formalist approach with perfect information and foresight.

I believe it was Judge Richard Posner who claimed: we are all realists now.

If we can't get there from here, I would prefer a parliamentary system in which democratic majorities acting through Congress and the President can trump judicial decisions.

My guess, however, is that it would be easier to get to a quasi-parliamentary system than to a regime of legal formalism.

The Feasible Choice Set

Think about how frequently one hears or reads the catch phrase �second best� and references to the distinction between ideal and nonideal theory.

[W]e cannot get [to formalist judges] from here. We would not only have to fix the nomination process, his vision likely would require radical changes not just to politics but also to legal education itself. I believe it was Judge Richard Posner who claimed: we are all realists now.

but

The Role of Feasibility Intuitions in Bainbridge�s Argument

But feasibility isn�t really an intuitable quality!

What normative theory grounds your intuition?

What argument can you produce for that normative conclusion?

Comparative Feasibility: Bainbridgean Legislative Supremacy versus Aretaic Judicial Selection

Sorry about the long-winded wind up. Let�s now get to the heart of the matter.

[I]t would be easier to get to a quasi-parliamentary system than to a regime of legal formalism.

Bainbridgean Legislative Supremacy

Aretaic Judicial Selection

An Observation About Feasibility and Historical Change

Lopez

Morrison

My point here is quite modest: we should be suspicious of our intuitions about feasibility.

A Three Step Approach to the Question of Comparative Feasibility

Is Legislative Supremacy Feasible?

Brown v. Board

Roe v. Wade

Griswold v. Connecticut

Brown

Griswold

Is the Revitalization of Formalism Feasible?

Stephen Bainbridge has a measured post

unless

The Original Version of this Post had a chart at this point, but the inclusion of the chart created formatting problems. I have now removed the chart. You can view the chart on the Legal Theory Annex at this link.

Of course, my argument is not decisive.

Comparative Feasibility

prima facie

Conclusion

Let me end by emphasizing the large zone of agreement between Bainbridge and myself. We both acknowledge the real dangers of unconstrained judicial discretion. We both acknowledge the desirability of formalist constitutional adjudication as a matter of ideal theory. We disagree over an equally important question: what should be done about that danger? And I, for one, have certainly learned from Bainbridge�s views about that crucial issue.

Posted by Lawrence Solum at 5/10/2004 04:07:06 PM

Monday Calendar

Social Eudemonism

Posted by Lawrence Solum at 5/10/2004 12:12:06 PM

Cramer Sense

Introduction

Originalism & Liberty

most recent post

What Is Nonsense?

a prior post

Lawrence v. Texas

Before I go any further, perhaps I should point out that Barnett�s defense is widely acknowledged as an important scholarly defense of Lawrence by serious constitutional scholars who are not sympathetic to Barnett�s position. (Take a look at Nelson Lund and John O. McGinnis�s Lawrence v. Texas and Judicial Hubris, which is forthcoming in the Michigan Law Review.)

Nonsense

prima facie

Lawrence

I was going to replace the word "nonsense" with "clearly wrong," but after reading what I wrote, I stand by the word "nonsense." Yes, I understand what Barnett means--and it makes no sense to argue that what was universally felonious in 1868 should be understood as a constitutionally protected right. The members of Congress who debated the Fourteenth Amendment would not have considered a universal felony to be a right. Imagine if someone argued that the right to have sex with children was protected by the Fourteenth Amendment--even though this was a felony in 1868. This is nonsense--a complete reversal of the notion of "right."

First,

But what is left?

As far as I can tell Cramer was simply unwilling to qualify his claim, and so he repeated it, hoping that emphatic repetition might somehow add conceptual cogency to a mere rhetorical exaggeration. Cramer is certainly entitled to assert that Barnett�s argument is �nonsensical� in the rhetorical sense of �contradicted by the evidence� or �clearly wrong,� but to then pointedly refuse to accept this clarification of meaning while failing to provide alternative criteria for the meaningful application of the term �nonsense� is simply to argue very badly. In my book, this kind of sloppy argumentation simply undermines credibility.

Second,

becomes

Third,

Fourth,

Slaughterhouse Cases

prima facie

Exact Opposite

In addition, Cramer�s argument that Barnett�s meaning is �exactly opposite to what its authors understood it to mean� is also a rhetorical exaggeration. There is no sense of �exact opposite� in which this claim could be correct. Cramer�s claim, if reconstructed so as to be plausible, would be something like: The original understanding of the P or I Clause was such that it was not perceived as relevant to Sodomy laws. Therefore, it is unlikely that any interpretation of the P or I Clause that would invalidate such laws is correct. Barnett�s claim is inconsistent with this argument (or even more accurately, in tension with it), but not its �exact opposite.�

What Solum does not seem to have grasped is my point that something that was felonious in 1868 could not qualify as a right to the legislators who passed the Fourteenth Amendment in Congress, or ratified it in the state legislatures. A felony is exactly opposite a right. Is there anything more clear than this?

Before dealing directly with the substance of this point, we should note that Cramer once again has engaged in rhetorical exaggeration. If you read my prior post (as Cramer has), it would simply be impossible to reach the conclusion that I did not �grasp� Cramer�s point. I engage in a lengthy exposition and refutation of precisely this point�a refutation to which Cramer made no response. When Cramer writes �Solum does not seem to have grasped,� the most charitable interpretation of his claim is �Solum is not persuaded despite the compelling strength of my argument.� The other possibility is that Cramer meant his claim literally. If so, then he is attempting deliberately to mislead his readers.

First,

This kind of shift in position, when presented as a defense of one�s original position, is irresponsible argument. When you change your position, you owe it to your readers to make this clear. When you defend one position by taking a superficially similar but conceptually distinct position, the result is that you mislead your readers.

Second,

legal

The status of a type of action as a felony is the exact opposite of the status of an action that is protected by a constitutional right.

exact opposite

asserted

Sense, Nonsense, Cramer Sense

With his heels dug in, Cramer makes Cramer Sense.

Posted by Lawrence Solum at 5/10/2004 07:00:41 AM

Sunday, May 09, 2004

Cramer Tomorrow Clayton Cramer has a post up entitled What Is Nonsense? replying to my Originalism & Liberty. Look for a reply by me on Monday morning.

Posted by Lawrence Solum at 5/09/2004 10:33:17 PM

Legal Theory Calendar

Monday, May 10

Social Eudemonism

Tuesday, May 11

Sarbanes-Oxley Act and the Making of Quack Corporate Governance

Back to the Future: The New General Common Law

Wednesday, May 12

The One True Interpretation

Thursday, May 13

Return of the Great Writ: Judicial Review of the Detention of Alleged Terrorists as Enemy Combatants

Hilary Putnam's Pragmatism

Saturday, May 15

The Rwandan Genocide and Transitional Justice: Commemorating the 10th Anniversary of the Genocide

Posted by Lawrence Solum at 5/09/2004 10:02:42 PM

Legal Theory Lexicon: Strict Construction & Judicial Activism

Introduction

Legal Theory Lexicon

strict construction

judicial activism

Strict Construction

Strict construction

strictly construed

what does strict construction mean

offered on law.com

strict construction

Strict Construction as "Textualism". One possibility is that strict construction refers to textualism--the idea that all constitutional interpretations must be grounded in the text of the Constitution. There are two difficulties with this suggestion. First, almost all of the Warren Court jurisprudence to which strict constructionism was opposed was rooted in the text of the Constitution in some way. Even the "unenumerated rights" jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment. Second, this definition provides no content to the idea that constructions must be "strict."
Strict Construction as "Literalism". Another possibility is that strict construction involves literal rather than purposive interpretations of the constitutional text. Perhaps, a strict construction is one that reads each clause of the Constitution to mean what the plain language says and nothing more. This idea is more promising than textualism, because it gives some real bite to the idea of "strictness" in construction. The difficulty is that the proponents of "strict construction" (and others) have rarely advocated a thorough-going literalism. That approach would, for example, mean that the First Amendment to the Constitution applies only to Congress (and not to the states, the executive, or to common-law doctrines). Other provisions of the Constitution don't seem to have any determinate literal meaning--the due process clause, the privileges and immunities clause, and the republican form of government clause come to mind.
Strict Construction as "Originalism". Yet another possibility is that strict construction refers to some form of originalism, either original-intention originalism or original-meaning originalism. (The former looks to the intentions of the framers, whereas the latter looks to the way the text would have been understood by citizens when it was adopted.) Original-intentions originalism does not fit well with the label "strict constructionism" as it would allow courts to take into account intentions of the framers that are not "strictly speaking" in the constitutional text. The latter is a much better fit with the idea of strict construction, but the label "strict construction" is simply not very descriptive of the idea that the constitutional text should be read today in a way that fits the way it would have been read at the time it was adopted.
Strict Construction as a "Presumption of Constitutionality". Yet another possibility is that the constitution should be construed against challenges to the constitutionality of legislation or executive action. The idea of a presumption in favor of the constitutionality of challenged action is certainly a coherent idea, but it is not clear why such a presumption should be called "strict construction." One might naturally assume that a strict construction of the constitution would invalidate government action that contravened the meaning of the constitutional text.

Judicial Activism

But what is judicial activism?

Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.
Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery. So activism is not meant to be equated with "deciding to strike down a statute or executive action."
Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.

Conclusion

Many readers of Legal Theory Blog will be finishing their first year of law school next week or are a few days into their first summer break. Congratulations on completing the first year of law school. The Legal Theory Lexicon will continue throughout the summer. If you have a few moments to spare from your summer job, I hope you will surf on over!

Posted by Lawrence Solum at 5/09/2004 03:32:47 PM

The Bainbridgean Argument for Judicial Nullification of the Constitution

Introduction

Originalism & Liberty

Should judges actively use the 9th Amendment or the P&I clause to strike down laws passed by Congress or state legislatures? The libertarian case for judicial activism claims that that those provisions incorporate the harm principle (e.g., Kennedy's opinion in Lawrence) or some modified and more modest version thereof (which I take to be Prof. Barnett's position). As Solum's own post makes clear, however, that position rests on highly contested foundations. First, libertarian judicial activism purports to be based on an originalist approach to Constitutional interpretation. Yet, as Solum points out, there are multiple versions of originalism. And, of course, many critics reject originalism on various grounds. [Personally, I see the principal virtue of originalism as providing some ability to cabin judicial discretion where evidence of original intent is available and uncontestable. The problem with originalism, as I see it, is that evidence rarely meets those standards. Hence, I don't think originalism adequately prevents judges from simply acting on their own personal policy preferences.] Second, the libertarian case for judicial activism claims to have identified coherent content for the 9th Amendment and the P&I clause. In contrast, Robert Bork famously referred to the 9th Amendment as an "inkblot," into which judges and justices read their own policy preferences. Solum's own post suggests, at least to me, that the P&I clause is just as much of an inkblot as the 9th Amendment. Solum identifies three interpretations of the P&I clause that "can be mixed and matched in various ways." In sum, the libertarian variant of judicial activism is at least as contestable as the left-liberal variant. Yet, it provides cover from the right for judicial activists of all stripes. As such, it contributes to the current atmosphere in which no area of American life is immune from the personal policy preferences of a bunch of unelected old men and women in robes. And that is why I think it deserves criticism.

Bainbridge's Interesting Question

Bainbridge raises a very interesting question.

What should judges do when the constitutional text plus evidence of original meaning underdetermine the meaning of the constitution?

limit

In other words, Bainbridge has a theory of constitutional interpretation that would give judges the authority to enact Bainbridge's preferred political theory into constitutional law.

Taking Bainbridge Seriously

Is There An Alternative to Bainbridgean Constitutional Nullifiation

Given the fact of final judicial authority, is there any sensible alternative to this program of nullification?

Jack Balkin

Roe v. Wade

A Neoformalist Manifesto

Fear and Loathing in New Haven

The Politicization of the Judiciary

possible

desirable

Getting to Formalism