Legal Theory Blog

Legal Theory Blog

All the theory that fits!

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

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Links for Legal Theory Blog

--Lawrence B. Solum (My Homepage at the University of Illinois)

--My College of Law Directory Page

--My Philosophy Department Directory Page

--Email me

--Legal Theory Annex
(All the theory that does not fit.)

--Legal Theory Lexicon
(Basic concepts in legal theory for first year law students.)

--My Publications on SSRN

Noteworthy Posts

Hiring Trends at 18 "Top" American Law Schools

2005-06 Report on Law School Entry Level Hiring

2004-05 Report on Law School Entry Level Hiring

2003-04 Report on Entry Level Hiring

Legal Theory Bookclub: Lessig's Free Culture

Getting to Formalism

Water Wells and MP3 Files: The Economics of Intellectual Property

Do Humans Have Character Traits?

Naturalistic Ethics

The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?
Part I: The Three Step Argument
Part II: Stare Decisis and the Ratchet
Part III: Precedent and Principle

Fear and Loathing in New Haven

A Neoformalist Manifesto

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

Breaking the Deadlock: Reflections on the Confirmation Wars

Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts

Archives

09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006

Blogosphere

New: --PrawfsBlog
(Group BLog)

--Balkinization
(Jack Balkin)

--Crescat Sententia
(Group Blog)

--Crooked Timber
(Group Blog)

--De Novo
(Group Blog)

--Desert Landscapes
(Group Blog)

--Discourse.Net
(Michael Froomkin)

--Displacement of Concepts
(Group Blog)

--Election Law
(Rick Hasen)

--Freedom to Tinker
(Ed Felten)

--The Garden of Forking Paths

--How Appealing
(Howard Bashman)

--Instapundit
(Glenn Reynolds)

--Is That Legal?
(Eric Muller)

--Law & Society Weblog
(Group Blog)

--The Leiter Reports
(Brian Leiter)

--Lessig Blog
(Lawrence Lessig)

--Marstonalia
(Brett Marston)

--Paper Chase @ Jurist
(Bernard Hibbitts)

--Political Arguments
(Group Blog)

--ProfessorBainbridge.com
(Stephen Bainbridge)

--Pea Soup
(Group Blog)

--Punishment Theory
(Group Blog)

--The Right Coast
(Group Blog)

--SCOTUS Blog
(Group Blog)

--Sentencing Law and Policy
(Douglas Berman

--Statutory Construction Zone
(Gary O'Connor)

--TaxProf Blog
(Paul Caron)

--Volokh Conspiracy
(Group Blog)

Websites of Interest

+Arts and Letters Daily

+Conference Alerts

+Daily Whirl

+fa.philos-l

+Economic Theory News

+Encyclopedia of Law and Economics

+Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository

+Law and Politics Book Reviews

+Metapsychology Book Reviews

+Notre Dame Philosophical Review

+Online Papers in Philosophy

+PoliticalTheory.info

+SSRN Most Recent Uploads

More Blogs of Interest

--Althouse
(Ann Althouse)

--Asymmetrical Information
(Jane Galt)

--bIPlog
(Group Blog)

--The Blawg Review
(Group Blog)

--Brad DeLong

--The Buck Stops Here
(Stuart Buck)

--Copyfight
(Group Blog)

--A Copyfighter's Musings
(Derek Slater)

--The Curmudgeonly Clerk

--Daniel Drezner

--Discriminations
(John and Jessie Rosenberg)

--Eastmania
(Wayne Eastman)

--EveTushnet.com
(Eve Tushnet)

--Freespace
(Timothy Sandefur)

--Furdlog
Frank Field

--Ideoblog
(Larry Ribstein)

--The Importance Of
(Ernest Miller)

--The Indiana Law Blog
(Marcia J. Oddi)

--Infothought
(Seth Finkelstein)

--IPKat
(Jeremy Phillips and Ilanah Simon)

--Law and Economics Blog
(Greg Goelzhauser)

--Law Dork
(Chris Geidner)

--Law Meme
(Group Blog)

--Lee Blog
Edward Lee

--Legal Ramblings
(Steven Wu)

--Lenz Blog
(Karl-Friedrich Lenz)

--Letters of Marque
(Heidi Bond)

--The Light of Reason
(Arthur Silber)

--Matthew Yglesias

--philosophy.com
(Gary Sauer-Thompson )

--Public Defender Dude

--Rodger A. Payne's Blog

--Southern Appeal
(Group Blog)

--Strange Doctrines/A>

--Susan Crawford blog

--A Taxing Blog
(Group Blog)

--That's News to Me
(Group Blog)

--Thoughts Arguments and Rants
(Brian Weatherson)

--Three Years of Hell to Become the Devil

--The Trademark Blog
(Martin Schwimmer)

--Troppo Armadillo
(Ken Parish)

--Technology 360

--Tutissima Cassis
(Nate Oman)

--Unlearned Hand

--Weatherall's Law
(Kim Weatherall)

--WENDY.SELTZER.ORG
(Wendy Seltzer)

--yin
(Tung Yin)

Legal Theory Programs & Websites

--Arizona State Committee on Law and Philosophy

--Cambridge Forum for Legal and Political Philosophy

--Columbia Law School Center for Law and Philosophy

--Columbia Legal Theory Workhsop

--Georgetown University Law Center--Colloquium on Constitutional Law and Theory

--Jurisprudence and Social Policy Program (U.C. Berkeley)

--Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley)

--NYU Colloquium in Legal, Political and Social Philosophy

--Oxford Jurisprudence Discussion Group

--Oxford Legal Philosophy

--Oxford Centre for Ethics & Philosophy of Law

--Queen's University Belfast Forlum for Law and Philosophy

--Rutgers Institute for Law and Philosophy

--UCLA Legal Theory Workshop

--University of Pennsylvania Institute for Law and Philosophy

--University College London: Colloquium in Legal and Social Philosophy

--University of Chicago Law And Philosophy Workshops

--University of Chicago: John M. Olin Program in Law and Economics Workshop

--University of San Diego Institute for Law and Philosophy

--University of Texas Law and Philosophy Program

--Yale Law School: Legal Theory Workshop

Links to Law School Workshops

+Australian National University Faculty Events

+Boston University

+Buffalo

+Columbia Center for Law and Economic Studies

+Florida State

+Fordham

+George Mason

+George Washington--IP Workshop Series

+Georgetown Colloquium on Intellectual Property & Technology Law

+Georgetown Law Workshops

+Georgetown Law and Economics Workshop

+Georgetown Law & Economics Workshop Series

+Hofstra

+University of Illinois

+Lewis & Clark

+Loyola Marymount

+New York University

+NYU Legal History Colloquium

+Northwestern Law Colloquium

+Oxford Law Events

+Rutgers, Camden

+Stanford Center for Internet & Society

+Stanford Law School Olin Series

+UCLA Colloquium

+UCLA Legal History Workshop

+UCLA Tax Policy

--University of Chicago: John M. Olin Program in Law and Economics Workshop

+University of Michigan Law and Economics

+University of San Diego Colloquium Series

+University of Texas Colloquium Series

+Vanderbilt Scholarly Programs & Events Calendar

+Villanova

+Washington & Lee Faculty Workshops

+Yale Law, Economics & Organizations Workshop

Calendars & Events

+Aristotelian Society

+British Society for Ethical Theory

+Conference Alerts

+Events in Analytic Philosophy in Europe (and Overseas Countries)

+The Philosophical Calendar

+Philosophy Now Calendar

+Political Science Online Upcoming Conferences

+SSRN Professional Announcements

Other Programs

--Australian National University, Research School of Social Science, Philosophy Seminars

--Boston University Philosophy Colloquia

--Brown University Philosoophy Upcoming Events

George Mason Workshop in Philosophy, Politics, and Economics

--Harvard University, Philosophy Colloquia

--MIT Philosophy Colloquia

--New York University, Philosophy Events

--Oxford: Events at the Faculty of Philosophy

--Princeton University: Philosophy Department Talks

--Princeton University: Political Philosophy Colloquium

--Princeton University: Public Law Colloquium

--Princeton University: Seminar in Law and Public Affairs

--Tulane Philosophy and Center for Ethics & Public Affairs Seminars

--University College, London: Political Theory Seminars

--University of Arizona Philosophy Colloquia

--University of Bristol Philosophy Research Seminars

--University of California at Berkeley Philosophy Events

--University of California at San Diego Philosophy Colloquia

--University of Chicago Political Theory Workshop

--University of London, School of Advanced Study, Philosophy Programme

--University of Manchester Politics & Philosophy Research Seminars

--University of Melbourne Philosophy Events

--University of North Carolina: Philosophy Speakers

--University of Pennsylvania: Philosophy Colloquiua

--University of Pittsburgh Philosophy Calendar

--Yale Philosophy Department Talks

Some Legal Theorist Homepages

--Robert Alexy (Christian Albrechts University Kiel)

--Randy Barnett (BU)

--Brian Bix (Minnesota)

--Jules Coleman(Yale Law & Philosophy)

--Ronald Dworkin(NYU & University College)

--John Finnis(Oxford and Notre Dame)

--John Gardner (Oxford)

--Brian Leiter (Texas)

--Micahel Moore (Illinois)

--Dennis Patterson (Rutgers, Camden)

--Stephen Perry (NYU)

--Richard Posner (University of Chicago & USCA7)

--Joseph Raz (Oxford and Columbia)

--Jeremy Waldron (Columbia

More to come!

Journals Specializing in Legal Philosophy

--American Journal of Jurisprudence

--The Journal of Philosophy, Science, and Law

--Law and Philosophy

--Law and Social Inquiry

--Legal Theory

--Oxford Journal of Legal Studies

Legal Theory Resources on the Web

Entries from the Stanford Encyclopedia of Philosophy

+Austin, John

+justice, distributive

+justice, as a virtue

+legal philosophy, economic analysis of law

+legal reasoning, interpretation and coherence

+legal rights

+liberalism

+libertarianism

+naturalism in legal philosophy

+nature of law

+nature of law, legal positivism

+nature of law, pure theory of law

+republicanism

From the Oxford Handbook of Jurisprudence

+Natural Law Theory: The Modern Tradition

From the Oxford Handbook of Legal Studies

+Law as an Autonomous Discipline

From the Examined Life

A Critical Introduction to Liberalism

Papers & Articles

+Virtue Jurisprudence

Organizations

+American Political Science Association(APSA)

+American Society for Political and Legal Philosophy (ASPLP)

+Association of American Law Schools(AALS)

+Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR)

+Law and Society Association

+Midwest Political Science Association (MPSA)

My Postal Address
Lawrence B. Solum
University of Illinois College of Law
504 East Pennsylvania Ave
Champaign, IL 61820
USA

Tuesday, August 31, 2004

Lipshaw on Jurisprudence & Sarbanes-Oxley Jeffrey M. Lipshaw has posted Sarbanes-Oxley, Jurisprudence, Game Theory, Insurance and Kant: Toward a Moral Theory of Good Governance (Wayne Law Review, Forthcoming) on SSRN. Here is the abstract:

The governance rules mandated by Sarbanes-Oxley, and the SEC regulations thereunder, were in direct response to many of the specific misdeeds of the Enron, WorldCom and other scandals, leaving corporate lawyers scrambling to keep their clients in technical compliance, but wondering whether it would create better governance. In this paper, I contend first that the frustrations with Sarbanes-Oxley have their basis in the jurisprudence underlying Sarbanes - the presence or absence of articulated policies and principles underlying the specific rules. I assess the law under modern positivist and naturalist theories, and point out ironies in its ultimate application. Second, I contend there is a more fundamental issue. Neither the law, nor one of the most cogent theories of non-legal norms - Eric Posner's application of game theory and signaling to principles - accounts fully for the moral aspect of corporate board service and ethical decision-making. I critique the economic model with a real world example of a wealthy director's assessment of his potential gain versus potential exposure. I suggest there is a moral theory that explains compliance outside of law or economics, and that the directors operate simultaneously under moral, legal and economic dictates. Finally, I contend social policy and legal training that in turn fail to recognize the importance of moral bearing on corporate governance will very likely miss the intended objective of good governance: more thoughtful, independent focus by boards on their fiduciary obligations to corporate stakeholders.

Posted by Lawrence Solum at 8/31/2004 07:13:18 PM

Graber on Civil Liberties in Wartime Mark Graber is guest blogging on Balkinization. Check out his Civil Liberties in "Wartime" I. Here's a taste:

What administration officials do during a war depends largely on their predispositions before the War. Members of the Wilson administration had exhibited no solicitude for speech rights before the war, and restricted those rights sharply during the war. Members of the Roosevelt administration, by comparison, were supportive of civil liberties before the war, and regarded World War Two as a vehicle for advancing more libertarian and egalitarian policies. Civil liberties during the present war against terrorism fit this historical pattern. The Bush administration is restricting primarily those rights that the administration sought to limit before September 11. The Patriot Act and related administration actions are consistent with previous Bush administration efforts to increase the power of government agencies to investigate criminal activities, to limit the procedural rights of criminal suspects, and to favor management over labor unions. The Patriot Act contains several provisions whose impact is limited to ordinary domestic crime. The mass detention of foreign nationals merely carries to an extreme previous policies that vested aliens with fewer and fewer legal rights. When, as is the case with gun control, the Bush administration before the war aggressively supported the right in question, it has steadfastly declared that present military conditions do not justify any intrusion into the constitutional rights of Americans.

Posted by Lawrence Solum at 8/31/2004 07:10:27 PM

Rubin on Public Choice & Tort Reform Paul H. Rubin (Emory University-Department of Economics and School of Law) has posted Public Choice and Tort Reform on SSRN. Here is the abstract:

It was originally thought that the structure of the common law would not allow rent seeking. More recently, scholars have realized that there is room for rent seeking, and that attorneys are engaged in exactly this process. This rent seeking has led to a great increase in the scope of U.S. tort law, and a corresponding effort to limit the scope of the law. This creates an ideal system for students of public choice. There are organized interest groups on both sides (attorneys, businesses and doctors) which are both coalitions themselves and members of broader coalitions. Each side has numerous tools available for advancing its agenda, such as litigating and lobbying for favorable rules, and attempting to elect preferred representatives and judges. There is ample comparative data available at the state level and also roll call votes at the federal level useful for studying these issues. This is an important and interesting area for future research.

Posted by Lawrence Solum at 8/31/2004 04:57:51 PM

Monday, August 30, 2004

Alstott on Justice, Children, and Families Anne Alstott (Yale Law School) has sample chapters of her book, No Exit: What Parents Owe Their Children and What Society Owes Parents, up on SSRN. Here's the abstract:

America's public policies have not kept pace with our rising standards for child-rearing. Child-rearing was once an economic bargain for parents who received a little worker and a retirement policy with each child. But thanks to technological and social change, parenthood has become a uniquely costly pursuit: we expect parents to protect their children's developmental chances, even at the expense of their own opportunities. Today, parenthood requires a decades-long restructuring of one's economic and personal life. Society expects parents to provide the continuity of care that is critical for children's development. Put succinctly, we tell parents Do Not Exit, and the great majority of parents - especially mothers - comply. But the economic costs of this No Exit obligation are enormous, and borne primarily by mothers. In every income class, mothers work less, earn less, and achieve less (in economic terms) than childless women and than men. Mothers interrupt their working lives at high rates, and as a consequence, they enter middle- and old-age with less financial independence. The libertarian reply is, essentially, So what? Mothers know - or ought to know - what they are getting into, and they should plan for the economic burdens of parenthood by saving, marrying, or remaining childless if need be. On this view, it is unfair to ask the childless to subsidize their peers who choose parenthood. This book aims to demonstrate that the libertarian assertion of equality between parents and nonparents is superficial, because it overlooks the child in the picture. Once we recognize the social importance of parents' No Exit duty, we can begin to understand society's special obligation to parents. The book also proposes a set of public policies that would offer practical assistance to modern families. Caretaker resource accounts would provide parents with $5,000 per year, to be used for child care, parents' own education, or retirement savings. For the average family, this program would mark a major new commitment of resources that could improve parents' own economic fortunes. At the same time, the program would permit parental choice, leaving it up to individuals to decide whether to stay in the workforce or take time out or in part-time work. Moreover, the initiative would direct resources to individuals, avoiding the partiality and potential side-effects of some family-friendly workplace initiatives. Another set of policies, termed life-planning insurance, would enrich the resources offered to parents of special needs children - a group for whom the No Exit obligation is especially costly. Today, public policy underwrites special education and health care for children with disabilities - but largely ignores the economic plight of their parents, who often find their own working lives permanently disrupted.Anne's paper for the Fordham Rawls & the Law conference was the download of the week on Saturday. And here is the link to the book's Amazon.com page.

Posted by Lawrence Solum at 8/30/2004 05:10:58 PM

Part 3 of Tushnet on the Rehnquist Court All three posts are superb. Check out the latest.

Posted by Lawrence Solum at 8/30/2004 01:28:32 PM

Welcome to the Blogosphere . . . to BizFemsSpeak, including

Susan J. Stabile Lynne L. Dallas Lynn A. Stout Kellye Testy Joan Heminway Jill Fisch Janis Sarra Cynthia A. Williams Claire Moore Dickerson Christine Hurt

Posted by Lawrence Solum at 8/30/2004 12:49:37 PM

Loren on Click Wrap Lydia Pallas Loren (Northwestern School of Law of Lewis and Clark College) has posted Slayng the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse (Ohio Northern University Law Review, Vol. 30, 2004) on SSRN. Here is the abstract:

In the era of digital delivery of content, copyright owners have turned with a vengeance to contract law to specify the rights and responsibilities of their customers. Many copyright owners today seek to avoid the express statutory limits on their rights contained in the Copyright Act by invoking the institution of contract. For example, these contracts attempt to prohibit the exercise of rights universally recognized as fair use, such as copying portions of a work for criticisms, product comparison and reverse engineering, or they seek to limit the application of the first sale doctrine. Enforcement of these contractual provisions alters the statutory scheme defined by Congress in the Copyright Act. This Article argues that the current legal doctrines available to invalidate these overreaching provisions or to strike claims asserted for their breach fail to provide appropriate incentives to reform contracting behavior by content owners. Even if, as a matter of contract law, a court would not enforce contractual terms that are inconsistent with the Copyright Act, the use of these provisions in ubiquitous shrinkwrap and clickwrap licenses has an in terrorem effect on users. After exploring the potential chilling effect that these overreaching clauses may have on users' behavior and why it is critical for courts to find ways to discourage the use of such clauses, this article argues that applying an appropriately tailored doctrine of copyright misuse to these licensing terms would provide a more robust reformation of contracting behavior. Copyright misuse is an equitable defense based on a claim that the copyright owner has used the rights granted by the federal Copyright Act in a manner that is contrary to the public interest; this defense can be raised by an accused infringer that has not been affected by the alleged misuse. Recognizing a copyright misuse defense based on contract clauses that seek to avoid federal limitations on copyright rights has several advantages. First, an assertion of copyright misuse can be made in a case that does not involve a claim for breach of one of these clauses. Second, as an equitable doctrine, misuse is subject to interpretation and revision by the courts; no legislative action is necessary. Third, a successful misuse defense results in a refusal by the court to enforce the copyright until the misuse is "purged." Given the potential downside risk of contractual overreaching, a broader application of the misuse doctrine would, therefore, "chill" a copyright owner's impulse to overreach. This article proposes that courts recognize a rebuttable presumption of misuse when a copyright owners seek, by contract, to avoid the express statutory limitations on their rights. To rebut the presumption of misuse, a copyright owner would be required to prove that encouraging the type of contracting behavior at issue is not likely to lead to a reduction of the external benefits the Copyright Act seeks to ensure through the limitation the copyright owner is contractually attempting to avoid. Requiring the copyright owner to rebut the presumption of misuse appropriately places the burden on the party that engaged in the presumption-triggering activity, i.e., the drafting or negotiation of the contract containing the offending clause. Employing a rebuttable presumption would allow contracting around the statutory limitations on a copyright owner�s rights only on a limited and truly bargained-for basis.

Posted by Lawrence Solum at 8/30/2004 12:43:17 PM

McCaffery on Fair Tax Timing Edward J. McCaffery (University of Southern California - Law School) has posted The Fair Timing of Tax (Michigan Law Review, 2004) on SSRN. Here is the abstract:

The traditional understanding of broad-based tax systems contrasts an income tax with all forms of a consumption tax. The income tax, alone, includes the yield to capital in its base; consumption taxes do not. Simple financial analysis demonstrates the equivalence of the two most common classes of consumption taxation - prepaid, or wage-based, and postpaid, or sales taxes - under certain assumptions, most importantly including constant tax and interest rates between the periods in the model. Advocates of redistributive taxes insist on both progressive rates and an income base, in large part to tax the yield to capital; opponents clamor for flat-rate consumption taxes, often invoking Mill's celebrated argument against the income tax's double taxation of savings to support their case. Once progressivity is presumed, however - as its enduring popular appeal suggests it ought be - the traditional understanding is flawed. Asking a different timing question, when, in a taxpayer's flow of funds, ought progressive taxes be imposed?, casts tax systems in a new light. The present tax system emerges as an onerous wage-based one. A progressive cash-flow consumption tax, in contrast, emerges as the best - most consistent and principled - tax on the yield to capital, under just the conditions in which it is fair and appropriate to tax such yield. This gives a further reason to support a progressive cash-flow consumption tax, sounding in reasons familiar to income tax supporters. A consistent progressive cash-flow consumption tax will lower the burden of taxation when capital transactions (borrowing, saving, and investing) are used to smooth labor earnings within or between lifetimes (or taxpayers), and will increase the burden of taxation when capital transactions are used to enhance labor earnings within or between lifetimes (or taxpayers). Critical reflection based on a near century of experience reveals such a tax to give form to attractive normative ideals. The new understanding helps to show that the traditional and most common arguments for consumption taxation are not compelling. The best, most appealing case for a consumption tax does not rest on simple horizontal equity models, nor on claims about the economic, consequentialist importance of savings on an individual or an aggregate social level. Rather it is claims of fairness, in a social contractarian sense in the manner of John Rawls and other liberal theorists, that argue for a properly designed consumption tax - in part precisely because of the way such a tax sometimes but not all the times burdens capital and its yield, and in greater part because such a tax points the way towards greater, more meaningful progressivity in tax. The new understanding of tax yields important insights into pressingly practical matters of tax policy and design, and opens up an important window to critique contemporary trends in tax reform. The battle in tax policy should not be over income versus consumption taxation - as it has been for centuries - but rather over what kind of consumption tax to choose. Failure to address this question head-on has led tax policy to move, seemingly inexorably, towards the wrong choice, with the fate of progressive, redistributive taxation hanging in the balance. I always enjoy Ed's sophisticated & interesting work.

Posted by Lawrence Solum at 8/30/2004 12:40:15 PM

Berman on Blakely & Legal Theory Check out Doug Berman's post, Formalism meets functionality: An Ohio case study, over at Sentencing Law & Policy. Here's a taste:

I have come to think that Blakely is so consequential and also so confusing because functionality, not formalism, is the hallmark of many facets of guideline sentencing. For example, as noted in this US Sentencing Commission discussion paper, the controversial "relevant conduct" rules in the federal system were devised as a functional solution to the dilemmas of both real-offense and charge-offense sentencing. More broadly, judges have routinely been placed at the center of guideline sentencing systems because judges seem functionally well suited to make the many nuanced fact and value judgments that are implicated in sentencing decisions. But now, says the Blakely court, regardless of who might be the most functional fact-finder, the Sixth Amendment formally demands that any fact (other than a prior conviction) which can increase a defendant's effective maximum sentence must be found by a jury or admitted by the defendant.

Posted by Lawrence Solum at 8/30/2004 10:12:14 AM

Recess Appointments President Bush's recess appointments are no longer headline news, but the legal consequences continue to work themselves out. Here's a link to the joint reply brief of the plaintiffs and amicus Senator Kennedy, filed last week, on a motion to disqualify Judge Pryor from hearing an Eleventh Circuit case on the ground that his recess appointment was unconstitutional. The argument is focused on a very interesting issue--whether the recess appointments power encompasses intra-session (as opposed to inter-session) recess appointments. The DOJ's earlier brief can be found here. This is an issue I've discussed frequently with my colleague, Michael Rappaport, and I think there is considerable merit to the argument that recess appointments were originally understood as appointments to fill vacancies that occurred between and not during sessions of Congress.

Posted by Lawrence Solum at 8/30/2004 10:02:58 AM

Saturday, August 28, 2004

Legal Theory Bookworm The Legal Theory Bookworm recommends Legal Education and the Reproduction of Hierarchy by Duncan Kennedy. Here's the blurb:

In 1983 Harvard law professor Duncan Kennedy self-published a biting critique of the law school system called Legal Education and the Reproduction of Hierarchy. This controversial booklet was reviewed in several major law journals�unprecedented for a self-published work�and influenced a generation of law students and teachers. In this well-known critique, Duncan Kennedy argues that legal education reinforces class, race, and gender inequality in our society. However, Kennedy proposes a radical egalitarian alternative vision of what legal education should become, and a strategy, starting from the anarchist idea of workplace organizing, for struggle in that direction. Legal Education and the Reproduction of Hierarchy is comprehensive, covering everything about law school from the first day to moot court to job placement to life after law school. Kennedy's book remains one of the most cited works on American legal education. The visually striking original text is reprinted here, making it available to a new generation. The text is buttressed by commentaries by five prominent legal scholars who consider its meaning for today, as well as by an introduction and afterword by the author that describes the context in which Kennedy wrote the book, including a brief history of critical legal studies.

Posted by Lawrence Solum at 8/28/2004 03:45:20 PM

Download of the Week This Download of the Week is What Does a Fair Society Owe Children - and Their Parents? by Anne Alstott. This is one of many fine papers from the Rawls & the Law conference at Fordham last year. Here is the abstract:

What role do - and should - parents play in a fair society, taking that term in a Rawlsian sense? Over time, our society's demands on parents have steeply increased, while the economic rewards of child-rearing have diminished. Slowly but surely, a combination of technological, social, and legal change has transformed modern parenthood into an extraordinarily demanding social role. But should we understand the economic costs of modern child-rearing to be a matter for public concern? Or should we, instead, conceive of parenthood as an essentially personal endeavor - a private project? In this article, I challenge the private project view, drawing on a line of argument that I develop in my forthcoming book, No Exit (Oxford University Press, May 2004). Using principles adapted from the work of Rawls and other liberal egalitarians, I argue that a fair society does owe a special obligation to parents. Society expects - and needs - parents to provide their children with continuity of care, meaning the intensive, intimate care that human beings need to develop their intellectual, emotional, and moral capabilities. In effect, social and legal institutions convey a common message to parents: Do Not Exit. Society's No Exit command to parents is grounded in a deep and appropriate commitment to human dignity and equality. Still, we can acknowledge the moral and emotional satisfactions of parenthood while also recognizing that parents provide continuity to their children at considerable cost to themselves. The No Exit constraint severely limits the ordinary jobs, and ordinary lives, that parents can choose to live. In response, a fair society ought to take measures to lighten the autonomy burden of child-rearing. Society may fairly expect parents not to exit, but it should not ignore the consequences for parents' own lives.Download it while its hot!

Posted by Lawrence Solum at 8/28/2004 03:37:54 PM

Friday, August 27, 2004

Ghost Written Opinions Check out GHOST-WRITTEN OPINIONS TAKE A HIT over at Begging to Differ, commenting on the Third Circuit's decision in Bright v. Westmoreland County:

Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions.. Here's a taste of Greg Bair's reaction:

for practical purposes, I wonder if it matters. If one side of a dispute has clearly the better legal argument (and I'm not necessarily saying that was the case here), then the Court might be justified in paraphrasing sections of the prevailing party's brief in its opinion. Of course, that's different from what the Third Circuit is complaining about here�perhaps as different as paraphrasing is from plagiarism.

Posted by Lawrence Solum at 8/27/2004 11:47:47 AM

More from Tushnet on the Rehnquist Court You will definitely want to read Part II of Mark Tushnet's post on the Rehnquist Court--over at Balkinization. Here's a taste:

We've known for a long time that William Brennan provided that leadership from Burger's appointment (and even before) until Brennan's retirement. Brennan was able to provide that leadership because of his personality and his strategic sense. Since Brennan's retirement, the leadership on the liberal side has come from, surprisingly, John Paul Stevens. It's surprising because of Stevens's well-known idiosyncracies about constitutional doctrine. And, I confess, it's not clear to me how Stevens has managed to pull it off; I think that Stevens's role on the Rehnquist Court is probably the largest untold story about the Court in the 1990s. To the extent I can figure it out, one important component is Stevens's facility at opinion assignment. Interestingly, he's been able to do that in important part because of Rehnquist's insistence that each justice end up with an equal number of majority opinions at the end of each Term. When the Court's unanimous, or nearly so, Rehnquist will assign the "dogs" to some of the liberals. When the liberals manage to get a majority, Stevens can "use up" an opinion assignment, thereby restricting Rehnquist's options as the Term goes on. (One effect, for example, is that Rehnquist is forced into giving more assignments to Scalia and Thomas than he would [probably] like -- because those two justices are more likely to draft hard-edged conservative opinions that will lead O'Connor or Kennedy to have second thoughts.) All this is pretty speculative, although I bet that a quantitative political scientist could get us closer to understanding the post-Brennan opinion assignment process.

Posted by Lawrence Solum at 8/27/2004 11:42:14 AM

New from Law & Politics Book Review

Reviewed by Odeana R. Neal

Reviewed by Albert P. Melone

Reviewed by George Kiser

Reviewed by Robert M. Howard

Reviewed by Mark Kessler

Reviewed by Lawrence E. Rothstein

If you are a legal scholar who entered the profession long after the "little red book" (i.e. the original version of Kennedy's Legal Education and the Reproduction of Hierarchy) was almost a craze or if you are currently a law student with an interest in becoming a law professor, this is a book you should read. Not because its arguments are sound (see Leiter for the one-minute critique of CLS), but because it will illuminate the current landscape in legal theory. You can't really understand the impacted and twisted landscape of early twenty-first century American legal theory unless you know about the traces left by the Critical Legal Studies movement. Here's a link to the Legal Education and the Reproduction of Hierarchy on Amazon.com.

Posted by Lawrence Solum at 8/27/2004 11:09:04 AM

Newman on Social Science in the Same Sex Marriage Debate Stephen A. Newman (New York Law School) has posted The Use and Abuse of Social Science in the Same-Sex Marriage Debate (New York Law School Law Review, Forthcoming) on SSRN. Here is the abstract:

There is no conclusive, scientific answer to the question of what children's development and well-being will be if society permits same-sex marriages. This is not surprising, in view of the limited nature of research done, and the difficulties of doing large scale, randomized, controlled studies. Indeed, virtually none of the changes which have dramatically affected the institution of marriage in recent times - including no-fault divorce and the entry of mothers of infants and young children into the full-time workforce - have been preceded by reliable scientific studies demonstrating the likely effects of such changes on children. A look back at past societal controversies, over eugenic sterilization and over interracial marriage, highlights the danger of relying on scientific theories to resolve social issues. Science in these past debates too often reinforced societal biases. The four guidelines suggested here for considering the welfare of children in the context of same-sex marriage consider social science studies as one input among others that, when fairly considered, give substantial support to allowing such marriages as a means to promote the welfare of children raised by same-sex couples.

Posted by Lawrence Solum at 8/27/2004 11:07:57 AM

Baron on Homelessness as a Property Problem Jane B. Baron (Temple University School of Law) has posted Homelessness as a Property Problem (Urban Lawyer, Vol. 36, pp. 273-88, Spring 2004) on SSRN. Here is the abstract:

This essay introduces the idea of "no property" and develops this concept in the context of homelessness. Homelessness has to this point in time largely been treated as a problem of poverty. Having formulated the issue in this way, legal and social analysts have asked a limited, almost formulaic set of questions concerning the depth, scope, and the cause of the problem (e.g., is homelessness a product of individual weakness or of structural forces beyond any individual's control?) These questions, it turns out, are both extremely difficult to answer and, more disturbingly, not terribly helpful. Even the strongest case that homelessness is "caused" by institutional forces and not personal failure seems unlikely to lead either local or national government to commit the resources necessary to �solve� the underlying problem if that problem is, say, a failure of the housing market to produce affordable rental units or a failure of the job market to produce entry level jobs that pay decently. This essay argues that homelessness can be understood another way, as a problem not of poverty but of property - or, more accurately, a problem of "no property." "No property" is, I suggest, a distinct and insufficiently understood legal category. Just as property is not one right or attribute but many - a complex "bundle of sticks," to use some old terminology - "no property" is also a complicated accretion of legal relations (or the lack thereof). As non-owners in a world of owners, the homeless have a multitude of duties to respect the rights of others, and liabilities to the powers of others, without themselves having property that would give rise to duties and liabilities on the part of others toward them. The homeless are thus seriously vulnerable to the effects of owners' actions (and inactions). It is with these iterative no rights, disabilities, and vulnerabilities that effective public policy must deal. In a world of "no property," to take just one example, an anti-camping ordinance will be flat out ineffective to stop public sleeping if homeless people have no rights to be in private spaces. Effective interventions, either to regulate unwanted behaviors or to improve the conditions under which the homeless live, must take account of the legal disabilities affecting the options open to those who are homeless. For this reason, this essay argues, we should try harder to understand "no property" as a legal category.

Posted by Lawrence Solum at 8/27/2004 11:06:24 AM

Thursday, August 26, 2004

Alstott on What a Fair Society Owes Children Anne Alstott (Yale University - Law School) has posted What Does a Fair Society Owe Children - and Their Parents? (Fordham Law Review, Vol. 72, April 2004) on SSRN. Here is the abstract:

Posted by Lawrence Solum at 8/26/2004 02:30:34 PM

Calvert on Borking Believers Winston E Calvert (Washington University, St. Louis - School of Law) has posted Borking Believers: Judicial Selection and the Religious Test Clause (Washington University Law Quarterly, Vol. 82, 2004) on SSRN. Here is the abstract:

The Constitution provides the political branches broad discretion to test the substantive ideologies of prospective federal judges as qualifications for judicial office. However, the Religious Test Clause limits political branch discretion to establish qualifications by providing that "[n]o religious Test shall ever be required as a Qualification" for holding public office. Having no operational consensus regarding the Religious Test Clause's appropriate scope, the political branches have routinely considered judicial candidates' religious qualities without regard for constitutional implications. For most of the past century, religion influenced the judicial selection process - usually serving as a quiet tool for courting religious voters. With President George W. Bush's public announcement that he would only nominate judges who believe that "our rights were derived from God" and intense controversy regarding whether Senators unconstitutionally considered judicial candidates' religious affiliations and ideologies, religion's role is no longer quiet. Indeed, these controversies provoked members of both political parties to charge members of the opposite party with unconstitutionally manipulating religion in their judicial selection decisions. The superficial disjunct between the political branches' broad discretion and the Religious Test Clause's prohibition of religious tests as a qualification for office requires an analysis of the particular qualities of judicial candidates sufficiently "religious" to be considered beyond political branch scrutiny. This Note seeks to resolve the constitutional tension by distinguishing between the Religious Test Clause's appropriate prohibitions and the traditional sphere of ideological inquiry. After drawing these distinctions, this Note concludes that the Religious Test Clause should prohibit denominational and theological tests for judicial office while it should permit ideological inquiry regardless of possible religious motivation.

Posted by Lawrence Solum at 8/26/2004 02:20:13 PM

Bobblehead Department I want to express my thanks to Dan Polsby (George Mason) for the Sandra Day O'Connor bobblehead! I am now in the exalted company of luminaries such as Howard Bashman.

Posted by Lawrence Solum at 8/26/2004 02:11:53 PM

Wednesday, August 25, 2004

New from Law & Politics Book Review

Reviewed by Mark C. Miller

Reviewed by David L. Weiden

Reviewed by Deborah E. Sulzbach

Reviewed by Mark Tushnet

And if I may, I would like to put in a BIG PLUG for Shiner's Freedom of Commercial Expression. Here is a taste of Mark Tushnet's review:

Shiner concludes by noting that "[t]he friends of the commercial expression doctrine call upon the professional skills of the advertiser to influence judicial reasoning," and that the "drumbeat" of the associated rhetoric "is as relentless, and if one is not careful as hypnotic, as in any Brazilian football crowd or heavy-metal extravaganza" (p.331). Shiner's is a work of conceptual dissection, done with the kind of care that forestalls the hypnotic effects. The book is filled with extremely precise formulations, the subtlety of which is inevitably lost in a short review.I couldn't agree more with Mark: precision and subtlety is right on the money. Here is the Amazon.com link for Freedom of Commercial Expression.

Posted by Lawrence Solum at 8/25/2004 11:08:37 AM

Revised Conference Announcement: The Challenge of Philosophical Naturalism I am reposting this, because of the addition of Jerry Fodor to the lineup! This is a lot of horsepower!

THE CHALLENGE OF PHILOSOPHICAL NATURALISM

Here is the link for the conference website.Wow!

Posted by Lawrence Solum at 8/25/2004 09:38:14 AM

Conference Announcement: Relativism

On Friday 17th and Saturday 18th September, the research project Relativism will hold a two-day conference on Relativism at G�teborg University. September 17th Invited speakers: David Wong Taking Moral Relativism Seriously Max K�lbel Moral Relativism Ruth Millikan What Went Wrong with Putnam's Realist Program? Barry C. Smith True Relative to What? Barry Barnes Relativism in the Service of Scientific Understanding Susan Haack The Unity of Truth and the Plurality of Truths The lectures are open to the public and free of charge, no registration needed. September 18th Closed session with the invited speakers and participants of the research project. For more information visit our web site http://www.phil.gu.se/relativism/conference or email peter.johnsen@filosofi.gu.se Dag Westerst�hl Department of Philosophy

Posted by Lawrence Solum at 8/25/2004 09:33:01 AM

The Tax Canon Paul Caron of TaxProfBlog reminds us of Victor Fleisher's Tax Canon. Law students and new tax profs should check it out.

Posted by Lawrence Solum at 8/25/2004 09:29:18 AM

Tuesday, August 24, 2004

Barnett on the Foundations of Libertarianism Randy E. Barnett (Boston University School of Law) has posted The Moral Foundations of Modern Libertarianism (VARIETIES OF CONSERVATISM IN AMERICA, Peter Berkowitz, ed., Hoover Press, 2004) on SSRN. Here is the abstract:

Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, I contend that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy, one that can be shown to be compatible with various moral theories, which is one source of its appeal. Moral theories based on either moral rights or on consequentialism purport to be comprehensive, insofar as they apply to all moral questions to the exclusion of all other moral theories. Although the acceptance of one of these moral theories entails the rejection of all others, libertarian moral rights philosophers on the one hand, and utilitarians on the other, can embrace libertarian political theory with equal fervor. I explain how can this be and why it is a strength rather than a weakness of libertarian political theory. Conservatives, neoconservatives, and those on the left who seek to impose by force their comprehensive conception of the good neglect the problem of power - an exacerbated instance of the twin fundamental social problems of knowledge and interest. For a comprehensive moralist of the right or left, using force to impose their morality on others might be their first choice among social arrangements. Having another's comprehensive morality imposed upon them by force is their last choice. The libertarian minimalist approach of enforcing only the natural rights that define justice should be everyone's second choice. A compromise, as it were, that makes civil society possible. And therein lies its imperative.

Posted by Lawrence Solum at 8/24/2004 11:16:11 AM

Sterk on IP & Real P Stewart E. Sterk (Cardozo Law School) has posted What's In a Name?: The Troublesome Analogies Between Real and Intellectual Property on SSRN. Here is the abstract:

Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works, while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property concepts into copyright law. After exploring the weak correlation between justifications for rights in land and in works of authorship, the article explores how the disparate justifications should and do shape doctrine. In particular, the article suggests that differences in duration of rights, in the scope or the right to exclude, and in the availability of injunctive relief can be explained by differences in justification for property rights. The article then turns to the interplay between copyright and contract, and suggests that here, too, the difference in foundation for real and intellectual property rights cautions against resort to easy analogies to resolve unique and difficult problems.

Posted by Lawrence Solum at 8/24/2004 11:14:09 AM

Monday, August 23, 2004

Yahoo Twist Courtesy of Michael Froomkin, here's a link to the Ninth Circuit opinion in the French Yahoo case. I've just done a quick read of the opinion, but I am not sure that I agree with Froomkin that it is a "pretty reasonable-looking decision." For readers who are not procedure mavens, the case turns on personal jurisdiction. In particular, does a United States Court have jurisdiction over the plaintiffs in the French phase of litigation over whether Yahoo must block access to Nazi paraphenalia auctions for French users of Yahoo. The plaintiffs won in France, and Yahoo sought a declaratory judgment that the French judgment could not be enforced in the United States, because it would violate the first amendment freedom of speech. The Ninth Circuit has overturned Yahoo's victory on that question by holding that the federal trial court lacked jurisdiction over the plaintiffs in the French lawsuit. The Ninth Circuit's reason turns on the interpretation of the Supreme Court's decision in Calder v. Jones--a case in which the Ninth Circuit held that a California trial court had jurisdiction over a Flordia tabloid writer and editor--on the ground that by writing a defamatory article about a Californian, they had intentionally aimed their harmful conduct at California. Yahoo's argument was that the French plaintiff's had intentionally aimed their conduct--getting a French judgment--at Yahoo in the United States. The Ninth Circuit rejected that argument, reasoning that Calder v. Jones only applies to "wrongful" conduct. Here is the crucial passage from the opinion by Judge Ferguson:

Here, however, the French court has already upheld LICRA and UEJF�s position with respect to French law. We know that LICRA and UEJF were acting to uphold their legitimate rights under French law. This places the parties in this case in a very different posture than the parties in Bancroft & Masters. As a result, we cannot say here that the parties did anything wrongful, sufficient for a finding of �express aiming,� in bringing this suit against Yahoo!.It seems to me that this reasoning is a bit off kilter. The French plaintiff's intentionally got a French judgment that was expressly aimed at a U.S. defendant. The "wrong" is the chilling effect on expressive activity in the United States. And it is pretty clear that the French plaintiff's intended their French judgment to have precisely that effect. The fact that their actions were not wrongful under French law doesn't ential the conclusion that those actions cannot be considered as "wrongful" under U.S. law. Perhaps Froomkin did not mean to endorse the reasoning, but merely to suggest that it is not "off the wall." If so, I agree with him.
Update: C.E. Petit has more on Scrivener's Error.

Posted by Lawrence Solum at 8/23/2004 04:51:22 PM

Powers on Preventive Detention Over at Legal AffairsThomas F. Powers has a piece entitled When to Hold 'Em: The U.S. should detain suspected terrorists�even if it can't make a case against them in court. Here's a taste:

THE POLICIES OF BRITAIN AND ISRAEL each moved in the same direction: toward greater legal clarity and toward more extensive due process protections. The United States should take advantage of those countries' experiences to find ways to build due process into preventive detention. Current U.S. policy reflects a reactive and piecemeal approach. Designing a preventive detention policy means, in effect, creating a separate legal system that applies only to a small class of persons, a system running parallel to criminal law on the one hand, and to the laws governing POWs and war criminals on the other.

Posted by Lawrence Solum at 8/23/2004 03:23:05 PM

Posner Blogs Richard Posner is guest blogging over at Lessig Blog. Here is a roundup of the posts so far:

Eldred Revisited

Licensing and Fair Use

Fair Use and Licensing

Run, do not walk, to Lessig Blog!
Update: And here is Posner's interesting proposal to use fair use to expand the public domain:

Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of �fair use� that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn�t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won�t bother to try to keep them from falling into the public domain), he could publish it without a license.This seems like a very good idea, but wouldn't the registry idea require legislative action? I must read the article, forthcoming in the California Law Review, in which Posner and Bill Patry present their proposal at greate length.

Posted by Lawrence Solum at 8/23/2004 03:09:16 PM

Kriegel on Ethical Internalism Over at Desert Landscapes, Uriah Kriegel has a nice post titled Ethical Internalism and the Varieties of Moral Judgment. Here's a taste:

Let�s consider the version of ethical internalism according to which moral judgments are intrinsically motivating. This is a universal claim: *all* moral judgments are intrinsically motivating. It seems odd to hold that some are and some are not. Perhaps some are motivating and some are not, but then those that are are probably only *extrinsically* motivating. (Set aside the issue of clarifying what �intrinsically� and �extrinsically� come to in this context.)

Posted by Lawrence Solum at 8/23/2004 02:30:07 PM

Tushnet on the Rehnquist Court Check out Understanding the Rehnquist Court by Mark Tushnet, guest blogging on Balkinization! Here is a taste:

But, more broadly, Casey stands for -- symbolizes -- a division within the Republican party, between what I call modern (post-Goldwater) Republicans and traditional Republicans of a sort that was once associated with Nelson Rockefeller and that still remains strong in the Republican party in the Northeast. The latter point explains why Souter's positions should not come as a complete surprise. He's said that he came to the Court completely unacquainted with the important constitutional issues that he's had to deal with, but that doesn't explain why, once he studied the issues, he came out where he did. I think the reason is that his sensibilities and presuppositions were those of a Northeastern Republican.It is a treat to have Mark Tushnet in the blogosphere!

Posted by Lawrence Solum at 8/23/2004 12:14:10 PM

Conference Announcement: The Challenge of Philosophical Naturalism I'm very excited by this announcement!

THE CHALLENGE OF PHILOSOPHICAL NATURALISM

Here is the link for the conference website.

Posted by Lawrence Solum at 8/23/2004 12:08:36 PM

Rai on Open and Collaborative Research Arti K. Rai (Duke University School of Law) has posted Open and Collaborative Research: A New Model for Biomedicine (INTELLECTUAL PROPERTY RIGHTS IN FRONTIER INDUSTRIES: SOFTWARE AND BIOTECH, Robert Hahn, ed., AEI-Brookings Press, Forthcoming) on SSRN. Here is the abstract:

The advent of open source software has prompted some theoretical speculation about the applicability of open source production principles to biomedical research. This paper moves beyond theoretical analysis into an empirical examination of biomedical research projects that operate under what might be called an "open and collaborative" model. Open and collaborative projects represent a fresh approach to biomedicine in that they not only disavow its exclusionary behavior but they also reject its small-lab based structure. The paper argues that open and collaborative biomedical research represents a promising experiment. Not only has it produced software and genomic data that is usable, but the resulting public domain status for this software and data may reduce access and transaction cost problems for follow-on innovators. The model's least intuitive, but most exciting, application may involve "wet lab" systems biology: in this context, the model may allow a more coordinated and comprehensive attack than has heretofore been possible on the sorts of problems that cause promising drug candidates, particularly for complex diseases, to fail. Open and collaborative biomedical research does diverge, however, from non-biomedical open source production. Particularly outside the area of software, open and collaborative biomedicine may require restrictions on participation; significant centralization and standardization; reliance on public funding; and limitations on use of "copyleft" licensing. Additionally, if the model is to gain significant traction, practical problems involving the division of consulting revenues between scientists and universities as well as inefficient biological science publication norms will have to be addressed.

Posted by Lawrence Solum at 8/23/2004 12:05:38 PM

Opderbeck on Open Source & Biotech David W. Opderbeck (Seton Hall University - School of Law) has posted The Penguin's Genome, or Coase and Open Source Biotechnology on SSRN. Here is the abstract:

Open source offers an interesting alternative to government control or private bargaining over rights to a commons. Open source production, however, will not occur on any significant scale absent certain conditions. Certain types of software have been developed effectively through open source methods because the projects were divisible and granular and the roots of the necessary social structure existed in early "hacker" communities and copyright license models were adaptable to support open source norms. Biotechnology, however, is different. The information commons rhetoric often applied to open source software and the Internet fails to withstand scrutiny when applied to biologically based technologies. "Information" can no longer be defined as an independent entity that can be possessed equally by infinite users. Instead, "information" is context-dependent. This is particularly true of biologically-encoded information, which affects direct change in an organism. Under a context-dependent definition, there are economic, social, and biological aspects of rivalry connected to an information resource. A truly open information commons therefore is an unobtainable myth. Because information is in some sense rivalrous, there must be some method of allocation. Collective management by way of open source development is appealing, but biotechnology lacks the sort of community that would make it feasible. In particular, the classical and neo-classical story of science as a homogenous, cooperative enterprise that is being corrupted by private property rights does not correspond to reality. Science, and in particular biotechnology, was and will be rife with competition and gamesmanship. Given these circumstances, a Coasian approach suggests that private property rights should lead to bargaining that will, over time, efficiently allocate the information resources. Many of the transaction costs that have been identified as barriers to such bargaining should not pose insurmountable problems, particularly as players repeatedly interact over the same or similar resources. The most difficult aspect of transaction costs is that of the search costs entailed in defining and clearing multiple rights held by diverse parties under differing intellectual property regimes. If search costs are a primary barrier to bargaining, the primary aim of biotechnology innovation policy should be to reduce those costs. One way this could be accomplished is to establish a national technology database containing information about proprietary claims, license terms, and license prices. Although this solution would not be perfect, it represents a means of reducing barriers to biotechnology innovation consistent with existing norms.

Posted by Lawrence Solum at 8/23/2004 12:02:22 PM

Dauvergne on Sovereignty, Migration, and the Rule of Law Catherine Dauvergne (University of British Columbia - Faculty of Law) has posted Sovereignty, Migration and the Rule of Law in Global Times (Modern Law Review, Vol. 67, pp. 588-615, July 2004) on SSRN. Here is the abstract:

This article argues that in the present era of globalisation, control over the movement of people has become the last bastion of sovereignty. This is important both to theoretical accounts of globalisation and to policy decisions by governments. Nation states threatened with loss of control in other realms are implementing a variety of 'crackdown' measures in questions of immigration. Issues of refugee law, illegal migration and skilled migration each challenge sovereignty in specific ways. While international human rights standards have made few inroads in questions of migration, recent decisions in England and Australia suggest that the rule of law may be emerging as a counter to traditional executive free reign in matters of migration law.

Posted by Lawrence Solum at 8/23/2004 12:01:02 PM

McAdams & Nadler Test for Expressive Effects in a Hawk/Dove Game Richard H. McAdams and Janice Nadler (University of Illinois at Urbana-Champaign - College of Law and Northwestern University School of Law) have posted A Third Model of Legal Compliance: Testing for Expressive Effects in a Hawk/Dove Game on SSRN. Here is the abstract:

Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. We argue that mixed motive games involving coordination model many common disputes, and that, in such games, any third-party cheap talk, including legal rules, that calls the players' attention to a particular equilibrium tends to produce that equilibrium. We investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome.

Posted by Lawrence Solum at 8/23/2004 12:00:44 PM

Saturday, August 21, 2004

Legal Theory Bookworm This week, I am recommending an old favorite, Introduction to Legal Reasoning by E.H. Levi. Along with Bramble Bush by Karl Lellewellyn, Levi's little book is one of the most recommended introductions for first year law students. There is much to criticize in Levi's book, but for its intended audience--first year law students--it provides help and insight.

Posted by Lawrence Solum at 8/21/2004 12:16:24 PM

Download of the Week This week, the Download of the Week is Federalism vs. States' Rights : A Defense of Judicial Review in a Federal System by John McGinnis (Northwestern) & Ilya Somin (George Mason). Here is the abstract:

This essay offers a new defense of judicial review of the Constitution's federal structure. It begins by showing that federalism is best understood not as a system that creates rights for states but benefits for the citizens of the nation. It achieves this goal by distributing powers best exercised at the national level to the federal government and those best exercised more locally to the states. The benefits of this distribution include catering to diverse preferences of citizens in different states and creating horizontal competition among the states for efficient provision of government services. Because these benefits flow to citizens rather than to government officials the structure of federalism creates a classic principal-agent problem. We show in the paper that citizens will be poor monitors of these officials, because they are rationally ignorant of politics, particularly structural issues, like federalism, and because they form a large set of principals, giving them incentives to free ride on the monitoring of others. We then show that state officials have incentives to take advantage of this lax monitoring and themselves abnegate the powers distributed to them by the Constitution. We in fact demonstrate that states officials may surrender their powers and acquiesce in congressional overreaching in the areas of the Commerce Clause, section 5 of the Fourteenth Amendment, the spending power and sovereign immunity. To give just one example, we show that while horizontal competition among the states may benefit citizens, state officials may benefit from avoiding competition and seeking a cartel sustained by a federal regulation For such reasons, the political process cannot be counted upon to protect the proper distribution of powers, because state officials as well as federal officials have few incentives for its preservation. Because our theory of federalism is not a states' rights theory, we also believe that judicial review is appropriate when states usurp federal powers. We show that federal officials may also have incentives to abnegate their own powers in such areas as the dormant Commerce Clause and the Compact Clause. We thus call for more enforcement in some of these areas as well. Ours is thus a unified theory of judicial review that justifies judicial enforcement of the distribution of both federal and state powers. We end by sketching the beginnings of theory, explaining why the federal judiciary, given its structure and incentives, will improve the enforcement of this most essential constitutional distribution of power.Download it while its hot!

Posted by Lawrence Solum at 8/21/2004 12:05:46 PM

Friday, August 20, 2004

Updates to Entry Level Hiring I've posted some additional updates to the entry level hiring reports. Thanks again to everyone whose helped!

Posted by Lawrence Solum at 8/20/2004 11:25:30 AM

Federalism Check out Jonathan Adler's Suicidal Folly: Disgust needn�t kill federalism at NRO & Law nerd alert! Federalism debate sweeping blogosphere! on Southern Appeal. Steve Dillard, pace Adler, argues "until Wickard is overruled, I am all for Congress using its judicially expanded Commerce 'power' to shut [physician assisted suicide] down." Adler responds, "Certainly Congress could get away with using its commerce power to restrict doctor-assisted suicide in Oregon and elsewhere. Yet if one believes that such use of the Commerce Clause is unconstitutional -- Supreme Court opinions to the contrary notwithstanding -- I do not believe one should advocate the opportunistic use of such power to achieve desirable policy goals."

Posted by Lawrence Solum at 8/20/2004 10:13:27 AM

Ghosh on the Bargain Metaphor for Patent Policy Shubha Ghosh (State University of New York - Law School) has posted Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor after Eldred on SSRN. Here is the abstract:

The metaphor of the patent bargain, the notion that a patent represents the grant of the right of exclusivity in exchange for the disclosure of a novel invention, is generally accepted among the members of the patent law community. Evidence of the metaphor's persuasiveness and pervasiveness is provided by the Supreme Court's reliance on the patent quid pro quo as a framing device to address the question of the constitutionality of copyright term extension in Eldred v. Ashcroft. This article challenges the coherence and purchase of the patent bargain metaphor by arguing that it rests on an outdated notion of the state inconsistent with the many regulatory goals of patent law. The central thesis is that the patent law community should replace the quid pro quo metaphor with a regulatory theory of patents that sees patent law as regulating primary conduct in the innovation process. The adoption of a regulatory theory of patent would aid not only in avoiding some of the conceptual errors in the Eldred decision, but also in understanding recent reform proposals forwarded by the National Academy of Science and the Federal Trade Commission. While this article presents a critique of many existing patent reform proposals, such as the narrowing of subject matter in consideration of competitive concerns and the loosening of the presumption of validity, the article agrees with the spirit of the proposals as examples of the regulatory theory of patent law in practice. The challenge to the patent bargain metaphor is made first as a broad criticism of social contract theory as applied to patent law. It is argued that social contract theory rests on a quaint and pre-modern notion of government which is inconsistent with the realities of the modern regulatory state. It is also argued that social contract theory rests on a misguided reliance on the prisoner's dilemma as a characterization of the problems in private ordering that patent law is designed to address. The prisoner's dilemma is shown to ignore the role of reciprocity and trust in the innovation process. The article presents the assurance game as an alternative representative of the problem of private ordering and basis for patent law. The assurance game expressly incorporates reciprocity and trust into an evolutionary view of the prisoner's dilemma and supports the view that patent law is a regulatory system designed to promote reciprocity and trust much like securities law. The assurance game is used to critique four existing theories of patent law: the prospecting theory, the information costs theory, the business asset theory, and the industry regulation theory. Finally, three salient patent reform proposals, limitations on patentable subject matter, the NAS reform proposals, and the FTC reform proposals are addressed within the frame of the assurance game. These applications demonstrate the power of thinking of patent law in terms of the assurance game and represent the initial steps towards developing a regulatory theory of patent law.

Posted by Lawrence Solum at 8/20/2004 09:03:48 AM

Gerhart on Palsgram Peter M. Gerhart (Case Western Reserve University - School of Law) has posted Resuscitating Palsgraf Although derided by many, Justice Cardozo's opinion in Palsgraf shows his deep understanding of the normative content of negligence law. An actor who has not created a risk (the risk of explosion) may not be held responsible for harm coming from the risk unless the actor is connected in some way with the risk; that is true even if the actor's negligent conduct contributes to an explosion. Proof that the railroad took an unreasonable risk that a package might fall is not, by itself, evidence that the railroad created an unreasonable risk of an explosion, for the railroad's risk-taking does not tell us how the railroad would have acted had it known of the risk of explosion. Because all agree that the railroad was not culpable in failing to know what was in the package, the railroad breached no standard of care with respect to the risk of explosion. Not only is this an important substantive statement about what negligence law requires, but Cardozo's opinion also demonstrates that both duty and proximate cause must themselves relate to the normative content of the concept of unreasonable risk-taking.

Posted by Lawrence Solum at 8/20/2004 09:01:09 AM

Yahya on the Benefit of the Bargain Theory for Product Liability Moin A. Yahya (University of Alberta - Faculty of Law) has posted Why the Benefit of the Bargain Theory for Product Liability is Bad Law and Bad Economics? on SSRN. Here is the abstract:

Plaintiffs are using a new and novel theory to seek compensation for products that have not yet injured them. Such plaintiffs claim that, even though the product they are using has not injured them, the discovery of a potential for injury reveals an actionable form of misrepresentation. The consumers claim they would not have paid the price they paid had they known about the potential for injury, and therefore, the manufacturer has been unjustly enriched. They want the firm to pay back the difference between what they paid and what they would have paid had they known of the potential for harm. This difference is known as the "benefit of the bargain." In this paper, I show that such plaintiffs have no legitimate claim. The nature of the plaintiff's loss is economic in nature. Tort law does not allow recovery for economic losses, except under certain circumstances, none of which are present in the typical sale of a product. Even if plaintiffs were able to recover the "benefit of the bargain," I show that benefit is negligible. Any extra price paid is an insurance premium that the manufacturer collects to compensate consumers in the event of actual injury. Furthermore, given that different consumers value products for different reasons, and not just for the safety factor, measuring what the consumers would have paid had they known a product is unsafe is a speculative venture at best. Looking at some economic studies done on a variety of products, I conclude that the absolute dollar premium that consumers attach to safety for most products is minimal. Hence, any recovery by consumers for the "benefit of the bargain" would be minimal too.

Posted by Lawrence Solum at 8/20/2004 09:00:15 AM

Thursday, August 19, 2004

Tushnet on Balkinization Don't miss the always intelligent and learned Mark Tushnet guest blogging on Balinization. His first post is Antonin Scalia as Felix Frankfurter. Here is a taste:

I've been struck by some similarities between Antonin Scalia and Felix Frankfurter, despite their obvious jurisprudential differences (Frankfurter the defender of fact-sensitive balancing [sometimes], Scalia the advocate of rule-based decision-making). Both were politically active law professors before they became judges. And, like Frankfurter when he was on the Court, Scalia has an active group of enthusiastic supporters in the legal academy. (Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of http://ninomania.blogspot.com/ for Frankfurter.) Push the suggestion of similarity a bit, and what might we see? Frankfurter reputation has declined substantially -- even from the time when I was a law student -- to the point where he's regarded, I think, as at most a moderately interesting failure. I think that -- at this point -- there's some reason to think that Scalia might be the same. (I've inserted the qualification because "failure to this point" might turn out to be "success in the end" depending on who is appointed to the Court before Scalia throws in the towel.)Readers of legal theory blog will definitely want to read Tushnet's post!

Posted by Lawrence Solum at 8/19/2004 07:07:39 PM

McGinnis & Somin on Federalism & States' Rights John McGinnis (Northwestern) & Ilya Somin (George Mason) have posted Federalism vs. States' Rights : A Defense of Judicial Review in a Federal System on SSRN. Here is the abstract:

Posted by Lawrence Solum at 8/19/2004 06:56:33 PM

New from Law & Politics Book Review

Reviewed by David Schultz

Reviewed by Rosalie R. Young

Reviewed by David Dehnel

Reviewed by Jennifer Faust

Reviewed by Rory O'Connell

Posted by Lawrence Solum at 8/19/2004 01:19:14 PM

Call for Papers: Virtue Epistemology

Virtue Epistemology Conference Paper Submission, c/o Dr. Duncan Pritchard, Department of Philosophy, University of Stirling, Stirling, FK9 4LA Scotland, UK

Posted by Lawrence Solum at 8/19/2004 01:14:50 PM

Priester on Hamdi & Habeas Benjamin J. Priester (Florida State University - College of Law) has posted Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged Terrorists as Enemy Combatants. Here is the abstract:

The paper analyzes the fundamental constitutional questions left unresolved by the June 2004 trio of United States Supreme Court opinions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush. It evaluates the proper role of judicial review, through the procedure of a petition for the writ of habeas corpus, of the detention of a United States citizen as an "enemy combatant" under the laws of war based on the government's allegation that the individual is a terrorist. The President's classification of a citizen as an enemy combatant rather than an ordinary criminal has consequences of tremendous significance, including the deprivation of numerous constitutional rights and confinement in military rather than civilian custody. Despite the significance of the issues at stake, however, the role of judicial review in this context is surprisingly unclear. In fact, the courts have yet to reach, much less resolve, many of the most basic constitutional questions. The paper confronts those questions, and proposes answers to them, from the perspective of structural constitutional analysis of criminal procedure and due process principles. The manuscript concludes that the Due Process Clause mandates that the government surpass substantial procedural requirements before imposing the significant deprivations of liberty caused by an enemy combatant detention. A citizen may be detained in military custody as an enemy combatant only if the government can prove that the individual is in fact a belligerent engaged in armed conflict against the United States within the terms of the laws of war. This requires proof not only of active present membership in a terrorist organization but also specific intent to carry out imminent acts of terrorism. Furthermore, the Due Process Clause requires that the government prove its claims by clear and convincing evidence and that the petitioner be given a number of important procedural protections in the hearing, including the right of access to counsel and the right to challenge the government's evidence. Only if the government can carry its burden under these rigorous procedures may it detain a citizen as an enemy combatant.

Posted by Lawrence Solum at 8/19/2004 11:00:54 AM

Wednesday, August 18, 2004

ACS on Enemy Combatants Check out the American Constitution Society Blog for "Enemy Combatants," The Constitution and the Administration's "War on Terror" by Kate Martin and Joe Onek. Here's a taste:

The administration claims that the conflict with al Qaeda is a war and that therefore reliance on the criminal law is misplaced. It then claims that the conflict is a new kind of war, in which the traditional law of war, including the Geneva Conventions, does not apply. The President further claims, as Commander in Chief, the authority to write new rules for the conflict and to do so without Congressional approval. Finally, the administration claims that because this is a war, the usual role of the courts in enforcing protections against arbitrary deprivations of individual liberty must be suspended. The administration's legal framework needs to be examined piece by piece. There are in fact circumstances in the conflict with al Qaeda - e.g. the invasion of Afghanistan - where the use of military force is both lawful and appropriate, and in such cases the law of war governs. But when the courts in the U.S. are open and the U.S. military is not engaged in combat inside the U.S. criminal law is the appropriate, adequate and constitutional means for dealing with alleged al Qaeda associates found in this country. In no instance does the Constitution give the President the authority to write new rules for this conflict on his own. And, as the Supreme Court has now decisively declared, the Executive is answerable in court for its post-9/11 detentions of individuals.

Posted by Lawrence Solum at 8/18/2004 10:30:08 AM

Tuesday, August 17, 2004

Nimmer on the DMCA & Free Speech Raymond T. Nimmer (University of Houston - Law Center) has posted First Amendment Speech and The Digital Millennium Copyright Act: A Proper Marriage (COPYRIGHT AND FREE SPEECH - COMPARATIVE AND INTERNATIONAL ANALYSES, Jonathan Griffiths, Uma Suthersanen, eds., Oxford University Press, February 2005). Here is the abstract:

Digital Millennium Copyright Act (DMCA) anti-circumvention rules have been the subject of intense attacks, many of which come from a group of activists who can be described as "rights restrictors" and whose position on intellectual property issues favors a lessening in law and in practice of the scope of intellectual property rights. Among the attacks have been claims that DMCA is unconstitutional. This article argues that when the DMCA is viewed in proper context it satisfies applicable First Amendment tests and, indeed, is a pro-speech law, responding to changes caused by digital technology which threaten to reduce incentives for the creation and dissemination of creative works by making unauthorized reproduction and mass distribution of those works far easier than under prior technology. The relationship between law and innovation is complex and its balance has been altered by digital systems. Protecting the use of circumvention technology is a rational response to reinstating or maintaining the incentives to create and disseminate copyrighted works. The DMCA does that in a manner the impact of which expands both proprietary and public domain information. As content-neutral regulation, the constitutional test of validity for DMCA is whether substantially more speech is regulated than is necessary to achieve the governmental purpose. In fact, in most cases, DMCA-regulated conduct does not involve speech and, to the extent that it does, it properly focuses on conduct elements in a content neutral manner despite incidental impact on speech.

Posted by Lawrence Solum at 8/17/2004 12:31:10 PM

Berman on the Commerce Clause Mitchell N. Berman (University of Texas Law School) has posted Guillen and Gullibility: Piercing the Surface of Commerce Clause Doctrine (Iowa Law Review, Vol. 89, p. 1487, 2004). Here is the abstract:

In Pierce County v. Guillen, the Supreme Court's most recent Commerce Clause decision, the Court upheld a federal law that protects information compiled or collected by states and localities in connection with federal highway safety programs from being discovered or admitted into evidence in state or federal trials. A short and unanimous decision, Guillen has gone almost entirely unnoticed. This article aims to rectify that oversight. Very simply, Guillen is not the gimme that its length, tone, and reception all conspire to suggest. At the heart of the case is a puzzle. And attempts to unravel that puzzle may substantially aid our collective understandings both of the likely trajectory of evolving Commerce Clause jurisprudence and of the conceptual structure of constitutional adjudication. The Guillen puzzle emerges against the background supplied by the Rehnquist Court's leading Commerce Clause decisions - United States v. Lopez, and United States v. Morrison. In short, Lopez held the federal Gun-Free School Zone Act (GFSZA) objectionable on at least two bases: that it regulated non-commercial activity - gun possession - and interfered with traditional areas of state sovereignty - education. Morrison struck down the civil remedies provision of the Violence Against Women Act (VAWA) also because it regulated non-commercial activity - gender-motivated violence - and interfered with traditional areas of state sovereignty - criminal law. The statute at issue in Guillen regulated apparently non-commercial activity - the discovery and introduction of evidence in civil litigation - and interfered with a traditional area of state sovereignty - state judicial processes. One might have suspected, therefore, that it would fall on the authority of Lopez and Morrison. The puzzle is why it did not. The central challenge confronting the Court's Commerce Clause jurisprudence for much of the nation's history has been to steer a path between conferring upon Congress a de facto police power and hamstringing Congress from meeting the needs of a vibrant national economy. This is no easy task. Too often, though, the Supreme Court and its commentators have jumped straight into the project of doctrine-making without pausing to consider what the constitutional meaning is that the in-court doctrine should be designed to implement. This article proposes that the key to resolving the Guillen puzzle might reside in the Court's inchoate views on just that analytically prior question: what does the Commerce Clause mean? That is, although the statute at issue in Guillen was hard to distinguish from the GFSZA and VAWA's civil remedies provision when measured against the Commerce Clause doctrine that Lopez and Morrison together birthed, it might be distinguishable when measured against what a majority of the Court understands the Commerce Clause to mean. I have recently argued elsewhere that the Court's project of developing sound constitutional doctrine would often benefit from a more careful distinction between what the Court understands the Constitution to mean and the decision rules crafted to instruct courts how to determine whether that meaning is satisfied. Insofar as Guillen may help scholars, judges and lawyers gain a better grasp on the distinction between Court-announced meaning and Court-crafted decision rules in the Commerce Clause context, it may yet have substantial importance notwithstanding its modest dress.

Posted by Lawrence Solum at 8/17/2004 12:28:42 PM

Monday, August 16, 2004

Bernstein on Genetic Testing and the Internet Gaia Bernstein (Seton Hall University - School of Law) has posted Accommodating Technological Innovation: Identity, Genetic Testing and the Internet (Vanderbilt Law Review, Vol. 57, p. 963, 2004) on SSRN. Here is the abstract:

To evaluate the need for legal change stemming from technological innovation we need to look beyond the accommodations of specific rules and on to the impact of technological innovation on social structures, institutes and values. In this article I study how social tensions created by recent technological innovations produce a need to elevate a legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives - genetic testing and the Internet - and their impact on our normative conception of identity. This socially oriented approach leads to several insights. First, I show that a host of seemingly unrelated social and legal controversies emanating from these technologies can be traced to a common tension. I demonstrate that by altering social structures through which we perceive our identity, genetic testing and the Internet induce novel societal tensions Secondly, I find that despite the role identity tensions play in controversies implicating genetic testing and the Internet, these tensions are not addressed in the legal debate. Furthermore, I show that our legal tools often fail to even indirectly protect identity interests. The study of identity tensions, therefore, uncovers a need for legal adjustment to accommodate the social changes resulting from the diffusion of these new technologies. The failure to address identity interests combined with the frequent failure to provide for their protection calls for the incorporation of identity interests into our legal debate. Identity interests need to be considered in controversies as diverse as the physician's duty to warn relatives of a patient's genetic condition and commercial profiling on the Internet. Specifically, I propose two potential resolutions: (i) direct incorporation of an independent identity interest and; (ii) indirect incorporation through the readjustment of existing doctrinal tools. I suggest that the pressures applied by the new technologies make both options viable by creating the need for inducing long overdue changes in our traditionally conservative legal discourse.

Posted by Lawrence Solum at 8/16/2004 12:09:36 PM

Saturday, August 14, 2004

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The State of Democratic Theory by Ian Shapiro. Here's a blurb:

What should we expect from democracy, and how likely is it that democracies will live up to those expectations? In The State of Democratic Theory, Ian Shapiro offers a critical assessment of contemporary answers to these questions, lays out his distinctive alternative, and explores its implications for policy and political action. Some accounts of democracy's purposes focus on aggregating preferences; others deal with collective deliberation in search of the common good. Shapiro reveals the shortcomings of both, arguing instead that democracy should be geared toward minimizing domination throughout society. He contends that Joseph Schumpeter's classic defense of competitive democracy is a useful starting point for achieving this purpose, but that it stands in need of radical supplementation--both with respect to its operation in national political institutions and in its extension to other forms of collective association. Shapiro's unusually wide-ranging discussion also deals with the conditions that make democracy's survival more and less likely, with the challenges presented by ethnic differences and claims for group rights, and with the relations between democracy and the distribution of income and wealth. Ranging over politics, philosophy, constitutional law, economics, sociology, and psychology, this book is written in Shapiro's characteristic lucid style--a style that engages practitioners within the field while also opening up the debate to newcomers.

Posted by Lawrence Solum at 8/14/2004 12:40:29 PM

Download of the Week This week, the Download of the Week is Supermajority Rules And The Judicial Confirmation Process by John O. McGinnis and Michael B. Rappaport. Here is the abstract:

In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges�an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own political and policy preferences. The case for applying an appropriately framed supermajority confirmation rule to Supreme Court justices has some merit, because these justices have substantial power to entrench new norms that would otherwise have to go through the stringent supermajoritarian process of constitutional amendment. The most substantial costs of the rule are holdout costs, which are likely to be particularly high at the beginning of the rule's operation. These costs could be reduced if the change to the supermajority rule were itself a product of bipartisan agreement applicable to a future President. We caution that a supermajority rule initiated through filibuster by one party is likely not to be beneficial because the holdout costs would be very high as the first Presidents attempted to prevent the new rule from sticking. In contrast, for lower federal courts, we think the supermajority confirmation rule is a mistake. Lower court justices lack the ability to make substantial constitutional entrenchments without support from the Supreme Court. Moreover, the thousand judges of the lower courts offer a real possibility of beneficial jurisprudential diversity that can improve judicial output. A supermajority rule would decrease such diversity. Second, we consider the use of a committee supermajority rule to require the chairman of the Senate judiciary committee to hold hearings on nominees unless a substantial supermajority of committees members were opposed. This rule would end the practice that has developed in both parties of denying hearings to well qualified nominees and assure fairer discussion and deliberation.I heard this paper presented at Cardozo in the spring. Highly recommended. Download it while its hot!

Posted by Lawrence Solum at 8/14/2004 12:37:11 PM

Friday, August 13, 2004

Congressional Budget Office on "Copyright Issues in Digital Media" The CBO report is available here. And here are the first three paragraphs of the preface:

Rapid technological progress in information technologies poses new issues for copyright law. Today, a digital file can be copied and instantaneously distributed worldwide through the Internet, thus potentially depriving the copyright holder of revenue from licensed sales. As a result, holders of copyright on creative works in digital format are contesting the right of consumers to make personal copies of copyrighted materials. At the same time, consumers are beginning to chafe at copyright owners' use of digital technologies to prevent or deter copying and other unauthorized uses of copyrighted works. As digital processing grows more powerful and the high-speed distribution of digital content becomes more pervasive, the debate over copyright issues--in particular, whether copyright law has achieved the appropriate balance between incentives to engage in creative activity and the social benefits that arise from the widespread use of creative works--is likely to intensify. Yet the implications of any change to copyright law extend beyond the producers and consumers of copyrighted material to society at large. Investments in the computer hardware and communications industries, for example, are linked in part to the availability of creative content in digital form. How the current copyright debate is resolved, therefore, is likely to influence the growth of those related sectors of the economy. Potential revisions to copyright law may also have an impact on broader social concerns such as individual privacy. Revisions to copyright law could impose mandated costs on producers and consumers of copyrighted material, as well as the providers of goods and services used in conjunction with copyrighted works. This Congressional Budget Office (CBO) paper reviews current copyright law in the United States and considers the unique aspects of digital technology's challenge to that law. It also examines the prospects for a market-based resolution to copyright disputes over digital content and explores the effect of potential revisions to copyright law on economic efficiency and equity. While this analysis suggests some issues and concerns that the Congress may wish to consider during its deliberations about any changes in copyright law, in keeping with CBO's mandate to provide objective, impartial analysis, the paper makes no policy recommendations.

Posted by Lawrence Solum at 8/13/2004 12:15:16 PM

Claus on the True Meaning of Separation If you are interested in the political theory of separation of powers, you will want to read Montesquieu's Mistakes and the True Meaning of Separation (Oxford Journal of Legal Studies, Vol. 25) by Laurence Claus (University of San Diego School of Law). Here is the abstract:

The political liberty of the subject, said Montesquieu, is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another. The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu's constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could best be achieved, and had been achieved in Britain, by assigning three fundamentally different governmental activities to different actors. He was wrong. His mistaken conclusion rested on two errors. The first of these was theoretical; the second, both empirical and theoretical. First, Montesquieu's analysis was informed by the early eighteenth-century orthodoxy that no sovereign power could viably be divided. Montesquieu rightly saw that liberty from the arbitrary exercise of power would be served by apportioning power among multiple actors, but he thought the apportionment sustainable only if along essentialist lines. Lawmaking could be separated from law-executing, but neither of those kinds of power could durably be divided internally. The extent to which actors participated in the exercise of more than one kind of power Montesquieu viewed as a protective qualification to a primary essentialist separation. He failed to see that involving multiple actors in every exercise of power, albeit by permitting actors' individual involvement in the exercise of more than one kind of power, is the true protection against arbitrariness. Checks and balances, not essentialist separation of activities, prevent actors from conclusively determining the reach of their own powers. The critical liberty-promoting criterion for separation is not whether powers differ in kind, but whether apportionment will prevent actors from conclusively determining the reach of their own powers. Second, Montesquieu did not appreciate the nature of the English common law and the mechanism that its doctrine of precedent established for authoritative judicial exposition of existing law. That empirical error caused him to distinguish and trivialize the English judicial function as merely the ad hoc determination of disputed facts. Consequently, Montesquieu failed to recognize the lawmaking character of English judicial exposition. This essay analyzes implications of Montesquieu's mistakes for modern claims, both in Britain and in the United States, that liberty and the rule of law are promoted by separating power in certain contexts. In particular, this essay questions the British Government's recent claim that the values underlying separation of powers theory call for removing ultimate appellate jurisdiction from the House of Lords. It also traces Montesquieu's influence on the American founders' attempt to separate power along essentialist lines, and considers some sub-optimal consequences of that attempt, including the nondelegation quandary and the emergence of an unchecked judicial lawmaker. Highly recommended.

Posted by Lawrence Solum at 8/13/2004 10:57:56 AM

Lee on the Supreme Court as Quasi-International Tribunal Thomas H. Lee (Fordham University - School of Law) has posted The U.S. Supreme Court as Quasi-International Tribunal: Reclaiming the Court's Original and Exclusive Jurisdiction over Treaty-Based Suits by Foreign States against States (Columbia Law Review, Vol. 104) on SSRN. Here is the abstract:

The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in the supreme national tribunal-situated as an intermediary between the semi-sovereign States and the fully sovereign foreign states - for the sake of international peace. State breaches of the 1783 Treaty of Peace with Great Britain were considered the principal potential cause for a shooting or trade war by the founders of the new Republic. The thesis is supported by the constitutional text of Article III as amended by the Eleventh Amendment and by the historical evidence of original intent, including the inaugural implementation of the Original Jurisdiction Clause by Section 13 of the First Judiciary Act of 1789. Nor is it inconsistent with the principle of sovereign dignity for a semi-sovereign State to be sued by a fully sovereign foreign state that filters the claims of its citizens through its domestic political process. That the Court had original and exclusive jurisdiction over treaty-based suits by foreign states against States was an opinion shared by Supreme Court justices and constitutionalists throughout the nineteenth and first quarter of the twentieth centuries, but awareness of the jurisdiction was lost by the time of the Court's decision in Monaco v. Mississippi, 292 U.S. 313 (1934), when the United States' great power status in the world was incontestable. Reclaiming the Court's lost jurisdiction today would require a narrowing of that decision but makes sense given the recent resurgence of American federalism and the increasing pace of globalization of law and legal institutions.

Posted by Lawrence Solum at 8/13/2004 10:43:23 AM

Davis on Internment Without Trial Fergal F. Davis (University of Sheffield - Center for Socio-Legal Studies) has posted Internment Without Trial; The Lessons from the United States, Northern Ireland & Israel. Here is the abstract:

Internment without trial is neither novel nor normal; it is an emergency measure, which has regularly been employed. As a result, Internment has a long, if not distinguished, history. Through an examination of that history, this article aims to identify some of the difficulties associated with the application of a policy of internment. Due to the ongoing use of internment around the world, this exercise is, in and of itself, a useful one. However, following the introduction of the Anti-Terror Crimes and Security Act 2001, which saw internment reinstated on the UK statute books, this exercise has taken on an increased importance. This article does not aim to consider the new legislation in any detail, but rather it aims to consider previous models and as a result attempt to identify some general lessons which may later be applied to the present situation.

Posted by Lawrence Solum at 8/13/2004 10:41:02 AM

Rose-Ackerman & Rossi Disentangle Regulatory Takings Susan Rose-Ackerman and Jim Rossi (Yale Law School and Florida State University - College of Law) have posted Disentangling Deregulatory Takings (Virginia Law Review 2000, Virginia Law Review; vol. 86, p. 1435) on SSRN. Here is the abstract:

Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them in determining when a change in government regulation warrants recovery for investors. After addressing the current state of United States takings jurisprudence, this Article outlines a constitutional takings doctrine that can be applied to these infrastructure investment issues both within and outside of the American context. Under the doctrine advanced in this Article, the government would be required to pay compensation whenever it takes resources as part of the process of producing public goods and services. This Article's analysis, however, supports a rebuttable presumption against compensation for losses connected with the overall implementation of a public policy. Property rights protection will not aid growth - nor will it sustain historical investment levels - if it encourages inefficient levels and types of investment. In the American context, federal court review of public utility deregulatory takings claims should not entertain the strong property rights notions that some advance for purposes of encouraging infrastructure investment. Instead, this Article concludes that there is no reason for courts to depart from the distinct line of cases addressing public utility price regulation, in which courts routinely defer to regulators' decisions regarding compensation. The courts should treat the deregulation of public utilities as an exercise of government policymaking authority that generally does not require compensation of stranded costs under the United States Constitution. In a similar manner, officials in developing countries who are eager for foreign investment need to look far enough ahead to ask if the generous terms they are offering to investors will backfire in the future when citizens perceive the costs they must bear. Developing countries should be wary of incorporating too sweeping a set of property rights protections into constitutions, individual contracts, or investment treaties, especially if they are still in the process of developing effective state institutions.

Posted by Lawrence Solum at 8/13/2004 10:24:47 AM

Thursday, August 12, 2004

McGinnis & Rappaport on Supermajority Rules & the Judicial Confirmation Process The combination of the Senate filibuster of presidential judicial nominees and the 60 vote cloture rule may have created a de facto supermajority rule for confirmation of judicial nominees. John O. McGinnis and Michael B. Rappaport (Northwestern University - School of Law and University of San Diego School of Law) address the question whether judicial confirmations should require supermajorities in their new paper Supermajority Rules And The Judicial Confirmation Process (Cardozo Law Review, Forthcoming). Here is the abstract:

Posted by Lawrence Solum at 8/12/2004 09:10:34 AM

Wednesday, August 11, 2004

Frey & Stutzer on Procedural Utility Bruno S. Frey and Alois Stutzer (University of Zurich - Institute for Empirical Research in Economics (IEW) and University of Zurich - Institute for Empirical Research in Economics (IEW)) have posted Beyond Outcomes: Measuring Procedural Utility on SSRN. Here is the abstract:

People not only obtain utility from actual outcomes but also from the conditions which lead to these outcomes. The paper proposes an economic concept of this notion of procedural utility. Preferences beyond outcome can be manifold. We distinguish procedural utility people get from institutions as such, i.e. from how allocative and redistributive decisions are taken, procedural utility from activities towards which people have an intrinsic attitude and procedural utility from the way being treated in interaction with other people. In an empirical application, it is studied whether people gain procedural utility from participating in the political decision-making process itself, irrespective of the outcome. Utility is measured by individuals' reported subjective well-being. We find that participation rights provide procedural utility in terms of a feeling of self-determination and influence. In contrast, actual participation and use of participation rights does not.

Posted by Lawrence Solum at 8/11/2004 03:05:45 PM

Miller on the Future of Copyright Ernie Miller continues the discussion on the future of copyright here. And here is a taste:

Copyright law will be increasingly made behind the scenes of WIPO, the FCC and the Copyright Office. Regulatory capture doesn't begin to describe how far in the pocket of the content industries these organizations are. WIPO was built to serve the interests of the copyright cartels and force their will upon governments through international treaty. The Copyright Office loudly pushes an agenda even the RIAA only whispers. And the less said about Michael Powell's "commitment" to free markets and deregulation, the better. With the exception of the FCC to a very limited extent, none of these organization cares remotely about public opinion. Consumer rights simply do not factor into the equation. Other than my certainty that intellectual property law will be made increasingly outside the confines of representative bodies, I'm not sure what else can be said about it. Eight years ago, would law professors have predicted the emergence of the original Napster, followed by decentralized filesharing services? How about Bit Torrent? RSS? Broadcatching? Didn't think so.Once again, Miller has something interesting and important to say. Check it out!

Posted by Lawrence Solum at 8/11/2004 11:24:03 AM

Call for Papers: Social Accountability in Information and Communications Technologies

Call for Papers IFIP WG 9.2 Conference on Landscapes of ICT and Social Accountability June 27-29, 2005 University of Turku, Turku, Finland This is a call for papers for a conference on social accountability in information and communications technologies (ICT). The conference will be held from 27th to 29th June 2005 at the University of Turku, Finland. It is being organised by the Working Group on Social Accountability of the International Federation for Information Processing (IFIP), a non-governmental, non-profit umbrella organisation for national societies working in the field of information processing. The conference aims to review the landscapes: what are the social consequences of information and communication technologies today and how are they evolving? Topics of interest for the conference include ICT and social accountability in relation to: 1. Philosophy, ethics and sociological aspects 2. Culture and education 3. Social aspects 4. Politics and regulation 5. Economics and work 6. Technology, virtual reality and emerging technologies 7. New challenges: what needs to be done? The decision to accept will be based on an extended abstract of 2-4 pages to be sent to Kai Kimppa, kai.kimppa@it.utu.fi. Important Dates: Deadline for submission of extended abstracts: October 1st, 2004. Decision on abstract: November 15th, 2004. Full papers due: February 28th, 2005. Final papers due: April 15th, 2005. Conference: June 27-29 th, 2005. Further Information: http://www.cs.utu.fi/ifip/WG9.2_Conference_2005/ Regards, -- Kai Kimppa Lecturer, University of Turku Organizing Committee Chair

Posted by Lawrence Solum at 8/11/2004 11:17:10 AM

Tuesday, August 10, 2004

Conference Announcement: Judgments Judged & Wrongs Remembered

here

Posted by Lawrence Solum at 8/10/2004 01:10:33 PM

Copyfutures Check out Tim Wu reporting on the some lawprof predictions about the future of copyringht, including:

1. Primarily a criminal regime (remember when copyright was considered civil law?) 2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante; 3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else; 4. Made in WIPO or the FCC as often as the U.S. Congress; 5. Gone (not a good bet).

And here are reactions from Ed Felten and Rob Heverly.

Posted by Lawrence Solum at 8/10/2004 11:56:55 AM

Coleman on Duties to Clinical Research Subjects Carl H. Coleman (Seton Hall University School of Law) has posted Duties to Subjects in Clinical Research (Vanderbilt Law Review, 2005) on SSRN. Here is the abstract:

Two dominant approaches to the researcher-subject relationship have emerged in the bioethics literature, both of which, this Article argues, provide an inadequate basis for defining researchers' obligations to subjects for legal purposes. The first holds that, when researchers provide therapeutic interventions in clinical trials, they are subject to the same duty of therapeutic beneficence as physicians providing ordinary medical treatment. The second approach takes the opposite view; it maintains that physicians conducting clinical research are "scientists only," and that, as long as the study has received appropriate approvals and the subjects have provided informed consent, the researchers have no duty to sacrifice scientific objectives to promote individual subjects' medical well-being. After examining the flaws in both of these approaches, this Article develops an alternative vision for conceptualizing researchers' duties to subjects, based on legal principles governing fiduciary relationships. It explains why the application of fiduciary principles makes sense in the context of clinical trials, and provides a specific framework for using those principles to resolve conflicts between the pursuit of scientific knowledge and subjects' medical needs.

Posted by Lawrence Solum at 8/10/2004 11:50:03 AM

Guadamuz on the Sharing Ethics in Cyberspace Andres Guadamuz (University of Edinburgh) has posted The New Sharing Ethic in Cyberspace (Journal of World Intellectual Property, Vol. 5, No. 1, pp.129-137, 2002) on SSRN. Here is the abstract:

The Internet is a new medium that allows every person who is connected to it to become a publisher and to be able to share ideas and information. This is a phenomenon that I call the "New Sharing Ethic". This new sharing ethic is the subject of the present paper, in which the implications of the free flow of information in Cyberspace will be discussed.

Posted by Lawrence Solum at 8/10/2004 11:49:36 AM

Gasser on iTunes Urs Gasser (Universit�t St. Gallen) has posted iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media - A Case Study on SSRN. Here is the abstract:

In this paper, the Berkman Center's Digital Media Project has conducted an exploratory case study on Apple's iTunes Online Music Store from a legal and business perspective. The objective of this analysis is twofold: First, it seeks to gain advanced knowledge of the relationships among copyright law, contract law, digital rights management schemes and business modeling processes in the Post-Napster world. Understanding such interactions is crucial when attempting to balance the divergent interests of consumers, artists, the entertainment industry, and technology manufacturers through regulatory mechanisms such as law, code market mechanisms, and adjustment of social norms. Second, the paper is intended as a further step toward expanding the knowledge base of the Digital Media Project beyond U.S. law to include a more detailed coverage of the legal and regulatory frameworks of other countries. The focus of the comparative law analysis conducted in this initial study is on European jurisdictions and selected nations in the Asia-Pacific.

Posted by Lawrence Solum at 8/10/2004 11:47:05 AM

Beko on Punitive Damages Beko Reblitz-Richardson (University of California, Berkeley - School of Law (Boalt Hall)) has posted Punitive Damages: Criticisms and Proposals for Reform in Light of State Farm on SSRN. Here is the abstract:

In State Farm Mutual Automobile Insurance Co. v. Campbell, the Supreme Court set out two limits for courts reviewing the constitutionality of punitive damages awards. First, the Court suggested that punitive damages should generally not exceed a single-digit ratio to compensatory damages. Second, the Court restricted the type of evidence that can be considered to impose and calculate punitive damages. This Comment considers State Farm's two limits in light of the Utah Supreme Court's remand decision and six other state and federal decisions issued within one year of State Farm. It concludes that State Farm has largely been unsuccessful, ignoring underlying goals of punishment and deterrence and failing to bring fairness and uniformity to this area of law. As a result, this Comment considers analogous limits in federal employment discrimination law. It argues that substantive limits focused on a defendant's condition are more consistent with the goals of punitive damages and that geographic, time period, facility and decision making evidentiary restrictions imposed in discrimination cases may serve to refine State Farm's evidentiary limits, leading to greater fairness and uniformity.

Posted by Lawrence Solum at 8/10/2004 11:45:12 AM

Monday, August 09, 2004

Natural Copyrights Check out the exchange between Tim Sandefur, Glen Whitman, and Tom Bell on the relationship between natural rights and copyright.
And be sure to follow Tom Bell's guest blogging on Agoraphilia!

Posted by Lawrence Solum at 8/09/2004 02:30:10 PM

Chemerinsky on the War on Terror Over at the American Constitution Society's blog, Erwin Chemerinsky is guest blogging with a post titled Judicial Review of the War on Terror. Here is a taste:

It is telling that in the three cases decided on June 28, only one Justice--Clarence Thomas--accepted the Bush administration claim of inherent authority. In the Hamdi decision, Justice O'Connor's plurality opinion said that it was not addressing the claim of inherent power to detain enemy combatants. But Justice O'Connor's opinion expressly held that courts may review detentions of American citizens apprehended in a foreign country to ensure due process.

Posted by Lawrence Solum at 8/09/2004 11:17:46 AM

Saturday, August 07, 2004

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends a classic in the development of legal positivism, The Province of Jurisprudence Determined by John Austin. The edition to get is in the Cambridge Texts in the History of Political Thought series, edited by Raymond Geuss & Quentin Skinner, and the edition is edited by Wilfrid E. Rumble. Austin may be a watered down version of Bentham, but Austin's version of legal positivism had an enormous influence on the development of legal theory. Here's the blurb:

John Austin was born March 3, 1790, at Creeting Mill, Suffolk, England. After five years in the army, Austin began to study law, and from 1818 to 1825 he practiced at the chancery bar. In 1820, he married Sarah Taylor (1793-1867), who translated and edited German and French historical texts, including Leopold von Ranke's HISTORY OF THE POPES (1840) and HISTORY OF THE REFORMATION IN GERMANY (1845) and Francois Guizot's ENGLISH REVOLUTION (1850). Both Austin and his wife were ardent Utilitarians; intimate friends of social theorists Jeremy Bentham, James Mill, and his son John Stuart Mill; and much concerned with legal reform. When University College, London, was founded in 1826, Austin was appointed its first professor of jurisprudence. He spent the next two years in Germany studying Roman law and the work of German experts on modern civil law. Austin's first lectures, in 1828, were attended by many distinguished men, but he failed to attract students and eventually he resigned his chair in 1832. In 1834, after delivering a shorter but equally unsuccessful version of his lectures, he abandoned the teaching of jurisprudence. He was appointed to the Criminal Law Commission in 1833 but, finding little support for his opinions, resigned in frustration after signing its first two reports. In 1836 he was appointed a commissioner on the affairs of Malta. The Austins then lived abroad, chiefly in Paris, until 1848, when they settled in Surrey, where John Austin died at Weybridge in December 1859. Austin's best-known work, a version of part of his lectures, is THE PROVINCE OF JURISPRUDENCE DETERMINED, published in 1832. Defining the sphere of ethics and law, it came to revolutionize English views on the subject, and was welcomed by American jurists such as J.C. Gray and Oliver Wendell Holmes.

Posted by Lawrence Solum at 8/07/2004 10:17:55 AM

Download of the Week This week, the Download of the Week is Market Entry and the Proper Scope of Copyright by Shubha Ghosh. Here is the abstract:

The contribution of this paper is to recast the problem of copyright scope as a problem of market entry that has been studied by economic theorists. The creation of a derivative work, for example, entails the entry of a new product into the marketplace that competes with existing, or incumbent, products. Entry has two obvious effects: expanding the options available to consumers at potentially lower prices and reducing the rents earned by incumbent suppliers. The first effect parallels copyright's concern with access; the second, copyright's concern with incentives. The economic theory of entry shows that under different conditions, market entry may be greater than or less than the socially desirable level of entry. Recognizing the relationship between market conditions and the desirability of entry sheds light on the design of the optimal scope of copyright.Download it while its hot!

Posted by Lawrence Solum at 8/07/2004 10:12:11 AM

Friday, August 06, 2004

Kieff on the Supreme Court's IP Jurisprudence F. Scott Kieff (Washington University School of Law) has posted Contrived Conflicts: The Supreme Court Versus the Basics of Intellectual Property Law (William Mitchell Law Review, Vol. 30, 2004) on SSRN. Here is the abstract:

Asked by conference organizers to consider the impact of the Supreme Court on intellectual property this millennium, this essay offers the view that the Supreme Court's intellectual property decisions by its present members generally are premised upon what may be viewed as contrived conflicts among bodies of law. Proceeding from this faulty foundation, the Court's efforts to resolve those conflicts subsequently have generated bodies of judge-made law that frustrate in important ways the basic statutory framework of intellectual property law. Examples of cases employing this problematic approach include Bonito Boats, Dastar, Warner-Jenkinson, Festo, TrafFix, and Holmes. Avoiding the contrivances not only would have left intact congressional action that the Court has not held to have been improper in its own right, but it also would have better promoted the normative goals these regimes were designed to achieve. Far from suggesting any particular business outcome in any of these cases, the essay proceeds from a comparative institutional analysis to show how decisional frameworks different from the ones the Court used would better achieve the basic goals and institutions of the particular statutory regimes of intellectual property law at issue in these cases.

Posted by Lawrence Solum at 8/06/2004 11:15:33 AM

Williams on Gibbons Norman Williams (Willamette University - College of Law) has posted Gibbons (New York University Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:

In Gibbons v. Ogden, the first Supreme Court decision to discuss the commerce clause, Chief Justice John Marshall endorsed a dormant commerce clause but refused to adopt it as constitutional principle. Explaining why Marshall hedged on the dormant commerce clause has perplexed scholars for over a century. Contrary to explanations proffered by others, Marshall had a firm majority of Justice prepared to adopt the dormant commerce clause. Moreover, Marshall understood and described the scope of the dormant commerce clause in sufficient detail to guide future disputes. And, far from fearing a states'-rights-based backlash were he to adopt the dormant commerce clause, his opinion was a nationalist tour de force. Rather, as I explain, Marshall hedged on the dormant commerce clause for several, mutually reinforcing reasons. First, Marshall apprehended the need to provide a comprehensive articulation of the scope of Congress's affirmative regulatory power under the commerce clause - a need that would have gone unmet had he rested the decision on the dormant commerce clause. Second, Marshall was wary of inserting the judiciary into another battle regarding the constitutional scope of state authority. Marshall understood that, in contrast to constitutionally-based rulings setting aside state legislation, which placed the Court in direct confrontation with the States, statutory-based rulings deflected such opposition by interposing Congress between the Court and the States. This reassessment resolves a historical enigma regarding the Marshall Court, but it also has contemporary significance for debates regarding popular constitutionalism and the interpretive role of the Supreme Court.

Posted by Lawrence Solum at 8/06/2004 11:12:03 AM

Cohen on Normal Discipline Julie E. Cohen (Georgetown University Law Center) has posted Normal Discipline in the Age of Crisis on SSRN. Here is the abstract:

As a byproduct of the asserted imperative to control flows of unauthorized information, purveyors of intellectual goods are moving to build into delivery systems for digital information a range of capabilities that insert both surveillance and enforcement functions into private spaces and embed these functions within communications networks, protocols, and devices. This essay offers a framework for theorizing this process that is informed substantially by the work of Michel Foucault and Anthony Giddens. The extension of intellectual property enforcement into private spaces and throughout communications networks can be understood as a species of disciplinary regime similar to those that Foucault sought to understand, but it is not exactly like any of those studied by Foucault. Instead, it represents a new, hybrid type, which locates the justification for its pervasive reach in a permanent state of crisis. Although the success of this hybrid disciplinary project is not yet assured, the model of social change elaborated by Giddens suggests that its odds of success are by no means remote. Power to implement this discipline in the marketplace for digital content arises from a confluence of private and public interests and is amplified by the dynamics of technical standards processes. The emergent model of crisis discipline has profound implications for both the production of behavior and the production of information spaces, and raises pressing questions about the future of the networked information society.

Posted by Lawrence Solum at 8/06/2004 11:05:35 AM

Two By Bibas on Blakely Stephanos Bibas (University of Iowa - College of Law) has posted:

Blakely's Federal Aftermath

In Blakely v. Washington (2004), the Supreme Court held that any fact that raises the maximum sentence that a judge may impose by law must be found by a jury, not a judge, beyond a reasonable doubt. Blakely raises far more questions than it resolves. In this limited space, I address five clusters of issues. Part I discusses how far Blakely is likely to go, and in particular whether it reaches the Federal Sentencing Guidelines. Part II addresses a host of transitional issues, especially what is left of the Federal Guidelines if Blakely applies to them. Part III discusses possible Blakely fixes or patches. Part IV considers briefly how plea bargaining might look different in a post-Blakely world. Finally, Part V muses on some of the fascinating jurisprudential issues raised by Blakely, such as the tension between formalism and pragmatism and the role of 18th-century history in our 21st-century world.

How Long? A Close Supreme Court Decision Trades Decades of Sentencing Reform for a Confusing Future

In Blakely v. Washington, the Supreme Court held that juries, not judges, must find facts that raise sentences under state sentencing guidelines and must find these facts beyond a reasonable doubt. The decision has thrown lower courts into disarray, with many courts striking down the Federal Sentencing Guidelines entirely and others warping them by knocking out the upward-enhancement provisions. The Blakely majority envisioned a regime of jury sentencing trials, but these days very few cases make it to juries; most plea bargain. The more likely result is more mandatory minimum penalties, that will ironically mean even more pressure to plea bargain and fewer jury trials in the long run.

Posted by Lawrence Solum at 8/06/2004 11:00:02 AM

Reblitz-Richardson on the Class Treatment for Medical Monitoring Claims Beko Reblitz-Richardson (University of California, Berkeley - School of Law (Boalt Hall)) has posted Lockheed Martin and California's Limits on Class Treatment for Medical Monitoring Claims (Ecology Law Quarterly, 2004) on SSRN. Here is the abstract:

In Lockheed Martin Corp. v. Superior Court, the California Supreme Court rejected certification for a proposed medical monitoring class, but declined to set a per se bar against class treatment of such claims. The court held that individual issues predominated because the class members had not provided substantial evidence that they could resolve dosage issues with common proof. In rejecting certification, the court improperly focused on the substantive merits of the case and raised a manageability concern for future classes of medical monitoring claimants. Although the decision expressly allows for class treatment of medical monitoring claims under certain circumstances, it limits class-wide adjudication of environmental pollution and chemical exposure claims because it requires excessive scrutiny of the merits for certification.

Posted by Lawrence Solum at 8/06/2004 10:59:45 AM

New on Law & Politics Book Review

Reviewed by Wendy L. Martinek

Reviewed by: Scott A. Comparato

Reviewed by Benjamin Gregg

Reviewed by Marvin Zalman

Reviewed by Conrad P. Rutkowski

Reviewed by William Lyons

Reviewed by Renee Ann Cramer

Posted by Lawrence Solum at 8/06/2004 10:48:15 AM

Thursday, August 05, 2004

Stare Decisis, Justice Thomas, and the Virtue of Integrity Over at Southern Appeal, Stephen Dillard ("Fedde") writes concerning Justice Thomas's view of precedent, and then sets out his own position:

Stare decisis means nothing to me unless the constitutional basis of the decision (or line of jurisprudence in question) is sound. Thus, were I on the Supreme Court (a scary thought to most, I know), I would vote to overrule Roe no matter how much time had passed. I find it rather interesting that liberals only wave the flag of stare decisis when the decision in question enshrines their value preference into constitutional law (e.g., Roe). I don't remember hearing any one in the liberal media babbling on about stare decisis when it came to Lawrence.If stare decisis has a role to play in constitutional adjudication, then consistency is key--especially in today's highly politicized Supreme Court. Here are some questions about Dillard's position:

What does Dillard mean by sound? On the one hand, he might mean that prior decisions get absolutely no precedential weight at all. That is, the Supreme Court should decide each case as if it were writing on a tabula rasa. On the other hand, he might mean that decisions should only be given precedential weight if there reasoning is sound, even if incorrect. Thus, for an originalist, decisions based on originalist reasoning might get precedential effect, even if a later court disagreed with the conclusion.
What are Dillard's views on vertical stare decisis? Are lower courts free to ignore the Supreme Court if they believe that the Supreme Court's reasoning was not "sound"? What if a lower court believes that the current Supreme Court would view a prior Supreme Court's reasoning as "unsound"?

I've discussed some of these issues in a series of posts: 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

Check out Dillard!

Posted by Lawrence Solum at 8/05/2004 12:47:34 PM

Plotkin on a Unified Theory of Software & the Law Robert Plotkin (Boston University - School of Law) has posted From Idea to Action: Toward a Unified Theory of Software and the Law (International Review of Law Computers & Technology, Vol. 17, No. 3, pp. 337-346, November 2003) on SSRN. Here is the abstract:

A methodology is proposed for determining how particular areas of law should apply to software. The methodology asks and answers four questions: (1) "What is software?," (2) "How does software differ from other creative works?," (3) "How are such differences legally relevant?," and (4) "How should the law treat software in light of such differences?" Application of the first half of this methodology reveals that computer programs have the unique quality of being human-readable and computer-executable instructions that describe actions in purely logical terms. Application of the second half of this methodology to patent law and the First Amendment to the U.S. Constitution reveals that software's unique features violate the law's assumptions, leading to results that are at odds with the underlying public policies in each case. Recommendations are made for modifying the legal rules in both areas, and in the law more generally, to resolve these problems.

Posted by Lawrence Solum at 8/05/2004 10:00:23 AM

Hadfield & Talley on Public versus Private Provision of Corporate Law Gillian Hadfield and Eric L. Talley (University of Southern California Law School and The Law School, University of Southern California) have posted On Public versus Private Provision of Corporate Law on SSRN. Here is the abstract:

Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This paper investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of regulatory competition and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of imperfect competition, we argue that while neither public nor private competition may lead to the optimal corporate law regimes, there are at least some reasons to believe that private provision may be preferable. Specifically, we present a model that demonstrates in which regulatory competition is likely to produce widespread emulation, and little innovation. Private competition, in contrast, is more likely to lead to greater product differentiation, which benefits heterogeneous consumers of corporate law services in the short term. Moreover, such differentiation also has long-term benefits, as providers are able learn more about business organizations' demand-side characteristics, and thus tailor their services to business needs more effectively.

Posted by Lawrence Solum at 8/05/2004 10:00:22 AM

Simon, Krawczyk & Holyoak on Preference Construction Dan Simon , Daniel C. Krawczyk and Keith J. Holyoak (University of Southern California Law School , University of California, Berkeley - Dept. of Psychology and Hellen Wills Neuroscience Inst. and University of California, Los Angeles - Department of Psychology) have posted Construction of Preferences by Constraint Satisfaction (Psychological Science, Vol. 15, No. 5, p. 331, 2004) on SSRN. Here is the abstract:

A central tenet of theories of rational choice is that people harbor a stable, well-defined and discernable order of preferences. A classic decision making approach based on rational choice assumptions is Multi-Attribute Decision Theory, which posits that the utility of a choice is equivalent to the weighted sum of the preferences of its constitutive attributes. Research challenging the axiom of preference invariance has shown that preferences are, to some degree, constructed by a variety of mostly contextual factors (e.g., Slovic, 1995; Tversky & Kahneman, 1986). The present studies seek to examine whether preferences are constructed also by the basic cognitive process that is understood to govern decision tasks involving multiple attributes-constraint satisfaction mechanisms. Consistent with principles of Gestalt psychology, the hypothesis is that strength of the preferences will shift towards stronger support for the emerging decision. The current studies were based on a choice between two job offers, and were designed to emulate a multi-attribute decision task. Preferences for the attributes of the offers were measured before, during, and after making the decision. The results show that over the course of making the decision, the attributes of the option that was eventually chosen came to be perceived as superior to the subjects' own initial evaluations, while the attributes of the rejected option came to be perceived as inferior. These shifts were triggered by a single attribute that decisively favored one option (Experiment 1), and occurred spontaneously in the absence of such a decisive attribute (Experiment 2). The shifts were also found to precede the point of decision. These findings are consistent with a constraint-satisfaction approach to decision making.

Posted by Lawrence Solum at 8/05/2004 10:00:06 AM

Wednesday, August 04, 2004

Call for Papers: The Political Philosophy of Needs

Call For Papers: Hamilton - The Political Philosophy of Needs A Special Issue of The South African Journal of Philosophy Submissions are invited for a special issue of the South African Journal of Philosophy, to be published as a symposium in the 2005 volume (vol. 24) of the journal. Papers should engage with some aspect of Lawrence Hamilton's recent book 'The Political Philosophy of Needs' (Cambridge 2003). In 'The Political Philosophy of Needs' Hamilton argues that "Modern moral, legal, economic and political thought is characterised by an unwarranted glorification of the values of justice and welfare at the expense of political participation, democratic sovereignty, and the satisfaction of human needs." He seeks to remedy this by making the notion of human needs central to both politics and political theory. Hamilton develops a positive conception of human needs: the evaluation of needs must be located within a more general analysis of institutions but can in turn help to justify forms of coercive authority that are directed toward the transformation of political and social institutions and practices. His argument is animated throughout by discussions of topics such as autonomy, recognition, rights, civil society, liberalism, and democracy. The book ends with an application of the thesis to the context of South Africa, in particular land reform and the constitution of 1996. The volume will include a pr�cis of the book, and a response to the accepted papers by Hamilton. Final submission deadline: December 15, 2004 (earlier submissions are welcome) Submissions should be original previously unpublished work, submitted in a form suitable for blind review. Submissions should include an abstract for indexing purposes. Papers of between 6000 and 8000 words are preferred, but there is no strict maximum length. Papers should be submitted electronically, as an attachment, in RTF or MS Word format. The South African Journal of Philosophy is a peer-reviewed journal edited by Deane-Peter Baker, Simon Beck, and David Spurrett (University of KwaZulu-Natal). The journal is listed in a number of indexes, including the ISI journals list and the Philosophers' Index. Enquiries about this issue, and submissions, should be sent to David Spurrett: spurrett@ukzn.ac.za

Posted by Lawrence Solum at 8/04/2004 04:39:33 PM

Call for Papers: Ethics Perspectives

Ethical Perspectives http://poj.peeters-leuven.be/journal.php?code=EP Publisher: Peeters Online Journals The primary goal of Ethical Perspectives is the promotion of dialogue between fundamental and applied ethics at an international level. It strives to accomplish this through interdisciplinary collaboration among ethicists and specialists from diverse sciences. ISSN 1370-0049 Contact: Ethical Perspectives Deberiotstraat 26 3000 Leuven Belgium Tel.: +32-16-32 37 96 Fax.: +32-16-32 37 88 Email: ethical@oce.kuleuven.ac.be www.kuleuven.ac.be/ep/ Abstracts available online. Articles available in PDF format. Current Issue: Volume 10, Issue 2, 2003 Date: 3 August 2004

Posted by Lawrence Solum at 8/04/2004 04:38:19 PM

McDonnell on Sarbanes-Oxley Brett McDonnell (University of Minnesota Law School) has posted Sarbanes-Oxley, Fiduciary Duties, and the Conduct of Officers and Directors on SSRN. Here is the abstract:

This article analyzes and evaluates the Sarbanes-Oxley Act and related legal changes and speculates as to how they are affecting director and officer conduct. On paper, the legal changes are notable but not earthshaking. A standard law and economics approach would suggest that changes in conduct should be relatively modest. Actual changes in conduct seem to be greater than the standard approach can explain, for two reasons. First, people are often subject to cognitive biases. The great attention paid to recent scandals and Sarbanes-Oxley, combined with a tendency to over-emphasize small risk and recent events, may be provoking an over-reaction to a perceived legal threat that in actuality is quite probably small. Second, Sarbanes-Oxley is helping strengthen a norm of active, independent director supervision of officers which was already emerging before the Act. In focusing on the effect of the law on norms, the paper emphasizes that corporations control agency costs and misbehavior not just through monitoring mechanisms, but also through self-control mechanisms that depend on agents obeying their fiduciary duties because they believe it is the right thing to do, rather than because they fear punishment if they do not.

Posted by Lawrence Solum at 8/04/2004 12:19:13 PM

Hadfield Asks Where All the Trials Have Gone, Long Time Counting Gillian Hadfield (University of Southern California Law School) has posted Where Have All the Trials Gone? Settlements, Non-trail Adjudications and Statistical Artifacts in the Changing Disposition of Federal Civil Cases on SSRN. Here is the abstract:

If trials have been vanishing from the federal courts in the past few decades, it matters, from a normative perspective, whether this trend reflects an increase in private settlements (as many assume) or an increase in public non-trial adjudication. In this paper I investigate the coding of disposition by the Administrative Office of the United States Courts as the first step in an effort to assess changes in the use of trial, non-trial adjudication (such as summary judgment and dismissal) and settlement to resolve federal civil cases. Based on audits of the 2000 data using electronic docket information available through PACER, I identify substantial error rates - as high as 70% - in the most ambiguous and relevant disposition codes, making simple interpretation of the raw codes highly unreliable. Using the sample frequencies of true dispositions determined from these audits, I correct the 2000 data. Comparing this corrected data to the raw 1970 data would lead to the surprising conclusions that a smaller percentage of cases were disposed of through settlement in 2000 than was the case in 1970, that vanishing trials have been replaced not by settlements but by non-trial adjudication, and that it is the bench, not jury trial, that has been transformed in this way. These conclusions are suggestive only, but they point to the importance of performing the more onerous task of auditing the pre-PACER data produced by the federal courts in order to assess whether we are witnessing a fundamental shift out of public adjudication into private settlements or merely a shift in how and when judges decide cases.

Posted by Lawrence Solum at 8/04/2004 12:10:02 PM

Barnhizer on Inequality of Bargaining Power Daniel D. Barnhizer (Michigan State University-DCL College of Law) has posted Inequality of Bargaining Power on SSRN. Here is the abstract:

This article examines the disconnect between the judicial approach to the legal concept of inequality of bargaining power in contract law and the analysis of power in general by the social sciences, negotiators, military strategists, businesspeople, and politicians. As a consequence of this disconnect, courts have ignored how bargaining power is actually used by contracting parties. Instead, courts focus upon crude heuristics such as the availability of meaningful alternatives, opportunities for negotiation, and a series of fixed, status-based party characteristics to assess relative bargaining power disparities. As a result, small businesses, middle-income consumers and similar entities have been largely denied access to contract doctrines that employ the legal concept of inequality of bargaining power (explicitly or implicitly), including unconscionability, adhesion contract analysis and, to a lesser extent, duress, fraud, parol evidence, consideration and public policy analysis. This article recommends that courts begin to assess power imbalances in contract relationships as complex and dynamic influences subject to radical changes throughout the parties' interaction.

Posted by Lawrence Solum at 8/04/2004 12:00:24 PM

Kutz on the Criminal Regulation and the Law of War Christopher Kutz (University of California, Berkeley - School of Law (Boalt Hall)) has posted The Difference Uniforms Make: Understanding the Regulation of Collective Violence in Criminal Law and the Law of War on SSRN. Here is the abstract:

This paper treats the question in political theory and international law of whether non-uniformed fighters ought to enjoy combatant privileges. It does so by exploring our treatment of collective violence, and of citizen responsibility for state action. Consider two forms of involvement in collective violence. On the criminal law model, an individual can be punished for violent acts committed only by confederates, so long as he was part of a joint criminal enterprise. On the law of war model, by contrast, an individual cannot be punished for killings and violence committed on the battlefield (subject to certain humanitarian restrictions), so long as the killings are committed as part of international hostilities, and independent of the legitimacy of the case for war. Reconciling these two models means probing the logic of participation in both violence and politics. I argue for extending combatant privileges to some non-uniformed combatants who are pursuing what can be termed "political" objectives, provided they observe other humanitarian constraints, roughly along the lines of Article 44 of the First Protocol to the Geneva Conventions. The reasoning that exculpates the regular soldier naturally extends to the non-uniformed combatant as well. While instrumental considerations do bear on non-uniformed combatancy, I argue that the basic question of non-uniformed combatant privilege has to be answered from within a theory of shared citizen responsibility for war. A corollary of this argument is that there is (very limited) conceptual room for holding liable soldiers fighting unjust wars by otherwise legal means.

Posted by Lawrence Solum at 8/04/2004 12:00:09 PM

Tuesday, August 03, 2004

Carter on the Admnistration's Litigation Strategy in the Detainee Cases Philip Carter has a nice essay on Slate entitled Prisoners' Dilemma: How the administration is obstructing the Supreme Court's terror decisions. Here's a taste:

In its Rasul decision, the Supreme Court recognized the Gitmo detainees' right to file a writ of habeas corpus in federal court. But the high court never said this had to be a meaningful right to habeas corpus, nor did it define the practical parameters of such a right. Issues like the right to counsel and the proper location for habeas corpus suits were left to the imagination. Not surprisingly, the administration has seized on this ambiguity to resume its post-9/11 legal offensive in the courts. The essence of the legal strategy is to litigate every single procedural and technical issue to the full extent of the law, using the vast resources of the Justice Department to delay judicial action as long as possible. The implicit purpose is clear: to delay justice so that detainees can be held and squeezed for intelligence.Link Courtesy of the amazing Howard Bashman.

Posted by Lawrence Solum at 8/03/2004 04:28:03 PM

More Wu And speaking of Tim Wu's guest stint on Lessig Blog, check out his The Copyright Gap. Here's nibble:

Here�s the hypothesis: Today�s telecom and copyright laws often regulate similar subjects, but with a big difference. The telecom laws slightly favor market entrants, while the copyright laws favor the incumbent disseminators. The result is a �copyright gap� that grows larger every day. Imagine you're a startup, a market entrant, with a new way of getting information to people. Would you want to enter a market regulated by copyright or the telecommunication laws?

Posted by Lawrence Solum at 8/03/2004 04:25:00 PM

Felten on Kerry & Copyright Legislation Prompted by Tim Wu (guest blogging on Lessig Blog), Ed Felten discusses the question whether Kerry would veto the Induce Act, here. I have no well informed opinion on this, but I find Felten's reasoning persuasive.
Update: More from the always interesting Ernie Miller.

Posted by Lawrence Solum at 8/03/2004 04:20:06 PM

Anti-Piracy Ads & Copynorms In the U.S., it is now fairly common to see an anti-piracy ad at the cinema. The one I've seen features a industry craft guy, who tells us that he works hard & that file sharing is theft. Over at Inchoate, David Starkoff has a post titled That lame anti-piracy ad. Here's a taste:

The ad motivates its condemnation of movie piracy by saying �you wouldn�t steal a x�, where x is, successively, �car�, �handbag�, �television�, and �movie�. The first three are rivalrous resources. If I have a television and you steal it, then I no longer have a television. I am annoyed by this. This interferes with me quite directly. (The �movie� is a movie from a store, which is also rivalrous.)Check it out!

Posted by Lawrence Solum at 8/03/2004 04:10:25 PM

Rubenstein on Hate Crimes Statistics William B. Rubenstein (University of California, Los Angeles - School of Law) has posted The Real Story of U.S. Hate Crimes Statistics: An Empirical Analysis (Tulane Law Review, Vol. 78, pp. 1213-1246, 2004) on SSRN. Here is the abstact:

Since 1990, the federal government has collected data on hate crimes reported throughout the United States. To date, the conventional account of that data has simply been to report that racial hate crimes are the most frequently reported type, followed by religious hate crimes, and sexual orientation hate crimes. While this conventional story is not technically wrong, I argue in this Article that it is not the real story the data tell. Undertaking the first comprehensive empirical analysis of this data, this Article develops a new account of hate crimes in the United States. First, the Article pierces the neutral categories (race, religion, sexual orientation) to demonstrate that three sub-groups - blacks, Jewish people, and gay people - report, by far, the most hate crimes. Second, I adjust the raw data to account for the differing population sizes of targeted groups: per capita, gay people report the greatest number of hate crimes, followed by Jewish people and blacks, these three groups reporting hate crimes at greater per capita rates then all other groups. Third, gay people are especially like to report personal - as opposed to property-based - hate crimes. A final section of the Article presents the first scholarly analysis of the staggering growth of anti-Islamic and anti-Arab hate crimes after September 11, 2001. The methodology of this Article enables a per capita perspective on this increase, showing that Muslims and Arabs reported hate crimes in 2001 at rates even greater than those at which gay people, Jewish people, and blacks have reported hate crimes over the past half-decade. While this post-9/11 spike leveled off in 2002, Muslims and Arabs are still reporting hate crimes at very high rates. As Congress intended hate crimes data to assist in designing public policy initiatives, the Article concludes by calling on Congress to respond to what the data actually demonstrate.

Posted by Lawrence Solum at 8/03/2004 03:28:43 PM

Rossi on Bargaining in the Shadow of the Administrative State Jim Rossi (Florida State University - College of Law) has posted Bargaining in the Shadow of the Administrative State: The Public Interest in Rulemaking Settlement (Duke Law Journal, Vol. 51, p. 1015, 2001) on SSRN. Here is the abstract:

This article addresses problems associated with settlement of appeals of legislative rules adopted by administrative agencies. Settlement is a common and important tool for avoiding litigation, but it also raises potential problems for administrative law. In particular, to the extent that an appellate litigation posture poses a principal/agent gap, an agency's incentives to settle may lead it to abandon its public interest goals, otherwise protected by statutory mandates as well as administrative procedures. The problem is most salient when an agency agrees to a substantive policy position in a settlement, committing the agency to later implement a policy course. To the extent an agency uses the same administrative procedure to implement a settlement that was used in adopting the regulation that is the subject of an appeal, the public interest may be preserved, but agencies have many ways of avoiding administrative procedure, or affording less procedure than was afforded in the initial adoption of a rule, in implementing settlement concessions. This article discusses these issues in three parts. In part I, settlement is contrasted to negotiated regulation. Settlement, it is argued, raises a more significant principal/agent gap than other consensus approach to regulation, such as negotiated regulation. Part II addresses settlement against the backdrop of presidential transitions, during in which policy shifts are common. In the context of presidential transitions, settlement can be used by an old administration to commit a new President to a policy course, or can be used by a new administration to undo the policy decisions of an old President. While policy shifts are expected during presidential transitions, such shifts have serious consequences for administrative procedure if the new policy is implemented with less procedure than the old, abandoned policy. Part III recommends some ways of narrowing the principal/agent gap in rulemaking settlement. In particular, broad participation in settlement negotiations, as well in judicial proceedings approving settlements, is endorsed. In addition, hard look review of the merits of a settlement ex ante - at the time of the settlement's initial approval - is advocated as a way of promoting accountability.

Posted by Lawrence Solum at 8/03/2004 03:24:52 PM

Pierce on Energy & the Environment Richard J. Pierce Jr. (George Washington University Law School) has posted Environmental Regulation, Energy, and Market Entry (Duke Environmental Law & Policy Forum, 2004) on SSRN. Here is the abstract:

As my contribution to a symposium, I was asked to identify and to discuss conflicts between environmental regulation and pursuit of the goals of national energy policy. I identify three contexts in which I see clear conflicts between environmental regulation and energy policy - gasoline production, importation of liquefied natural gas, and transmission of electricity. In each case, I conclude that the conflict is attributable to state and local regulations. In the case of the gasoline market, I conclude that the market is beginning to perform poorly because of a combination of state land use regulations that make it impossible to construct new refineries and state gasoline-type mandates that are in the process of transforming the highly competitive and efficient national gasoline market into scores of much smaller inefficient markets that are increasingly susceptible to both unilateral and collusive exercises of market power. In the case of the natural gas market, I conclude that state and local government attempts to assert the power to veto federally approved liquefied natural gas terminals place us in jeopardy of experiencing a devastating shortage of natural gas in the next few years. In the case of electricity transmission, I conclude that our rapidly growing shortage of transmission capacity is already costing us many billions of dollars per year and increasing dramatically our vulnerability to widespread blackouts and price spikes, and that the shortage is attributable primarily to state and local land use regulation. In each case, the conflict can be eliminated only by reducing the power of state and local regulators and/ or by transferring some regulatory power from state and local institutions to federal institutions.

Posted by Lawrence Solum at 8/03/2004 03:19:19 PM

Monday, August 02, 2004

King & Klein: Beyond Blakely Nancy J. King and Susan R. Klein (Vanderbilt University School of Law and University of Texas School of Law) have posted Beyond Blakeley (Federal Sentencing Reporter, Vol. 16, June 2004) on SSRN. Here is the abstract:

Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In Part III, we discuss Blakely challenges raised in cases on direct and collateral review. Finally, in Part IV, we collect some of the various options for reform open to Congress.

Posted by Lawrence Solum at 8/02/2004 02:40:47 PM

Ghosh on the Scope of Copyright Shubha Ghosh (State University of New York - Law School) has posted Market Entry and the Proper Scope of Copyright on SSRN. Here is the abstract:

Posted by Lawrence Solum at 8/02/2004 01:37:19 PM

Aviram on Network Threats Amitai Aviram (Florida State University - College of Law) has posted Network Responses to Network Threats: The Evolution Into Private Cyber-Security Associations on SSRN. Here is the abstract:

The enforcement of certain norms on network participants - such as norms supporting information exchange and governing access to the network - is critical in ensuring the security of the network. While a public norm enforcer may be feasible in many situations, private norm enforcement may, and frequently does, complement or substitute public enforcement. Private enforcement of cyber-security is often subsidized, primarily in non-pecuniary manners (e.g., by exemption from antitrust laws). These subsidies may be necessary to capture the positive externalities of providing security to the network, but they also bias private parties' incentives and may result in the formation of inefficient security associations that are beneficial to their members only due to the subsidy. To mitigate this concern, subsidies should be awarded only to associations that are likely to be effective in enforcing norms on the network participants. This Article offers a framework that assesses the likelihood that an association would become an effective norm enforcer. Norms that are expensive to enforce are rarely enforced by newly-formed private legal systems (PLSs), because the effectiveness of mechanisms used to secure compliance (e.g., the threat of exclusion) depends on the PLSs' ability to confer benefits on their members, and newly-formed PLSs do not yet confer such benefits. Pre-existing functionality inexpensively enhances a PLS' ability to enforce norms, and therefore most PLSs rely on preexisting institutions that already benefit members, typically by regulating norms that are not very costly to enforce. The threat of losing these benefits disciplines members to abide by the PLS' rules, thus permitting the PLS to regulate behavior. Network security norms are usually expensive to enforce, and thus a private association enforcing them would be more successful and thus more deserving of public subsidies if it relied on a suitable pre-existing functionality. The Article suggests criteria for assessing the effectiveness of pre-existing functionalities.

Posted by Lawrence Solum at 8/02/2004 12:12:01 PM

Rossi on Constitutional Duality Jim Rossi (Florida State University - College of Law) has posted Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally-Inspired Regulatory Programs and Standards (William & Mary Law Review, 2005) on SSRN. Here is the abstract:

Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from federal courts, state constitutionalism is challenged to produce its own account of its relevance in an era of federal programs. After surveying and critiquing the interpretative practices of state courts in dealing with these conflicting constitutional norms, the Article presents an institutional design account of state allocation of powers which might better explain why states routinely suspend constitutional restrictions on delegation in the context of state implementation of federally-inspired programs. The Article questions whether constitutional restrictions on legislative delegation have any normative basis in the context of state implementation of federally-inspired programs, but argues that it is important for state courts to answer this question as a matter of state constitutional interpretation - not by ceding turf to federal courts under the Supremacy Clause or other federally-imposed judicial interpretations.

Posted by Lawrence Solum at 8/02/2004 11:35:49 AM

New from Law & Politics Book Review

Reviewed By Ronald Kahn

Reviewed by Caryl Lynn Segal

Reviewed by Richard K. Scotch

Reviewed by Lucy S. McGough

Posted by Lawrence Solum at 8/02/2004 10:58:01 AM

Conference Announcement: Interjurisdictional Recognition of Civil Unions, Domestic Partnerships, and Benefits

NOTICE of CONFLICT OF LAWS CONFERENCE re: Interjurisdictional Recognition of Civil Unions, Domestic Partnerships, and Benefits The J. Reuben Clark Law School at Brigham Young University and Ave Maria School of Law invite you to participate in an academic conference, "Interjurisdictional Recognition of Civil Unions, Domestic Partnerships, and Benefits: Implications of Baker v. State, Lawrence v. Texas, DOMA, and the Proposed Federal Marriage Amendment," at Brigham Young University in Provo, Utah on Friday, November 5, 2004. This BYU conference will address recent developments that relate to the recognition issues that have arisen and will arise in the future after certain jurisdictions have legalized civil unions and domestic partnerships. The issues involve the basic question of whether such relationships will be recognized in other jurisdictions, and in particular, the conflicts issues that arise when such relationships terminate, but also involve dilemmas relating to interstate recognition of specific domestic partner benefits and of same-sex couple adoptions. Some of these conflicts issues may well be affected by the proposed Federal Marriage Amendment, and these implications will be explored at the conference as well. This conference is intended to continue a scholarly discussion begun at two prior conferences. The first such conference ("A Symposium on Interjurisdictional Marriage Recognition") was held at Creighton University in 1998 and the papers from that conference were published in volume 32 of the Creighton Law Review. The second conference ("The Implications of Lawrence and Goodridge for Recognition of Same-Sex Marriages and the for the Validity of DOMA") was held in May 2004 at Catholic University of America and the papers from that conference will be published in a forthcoming issue of the Creighton Law Review. Some participants in these two conferences, as well as other scholars, will also participate in this November's conference in Provo. We will have a number of panels with presenters giving 15-20 minute presentations and then a 20-30 minute discussion period at the conclusion of all the presentations in a particular panel. The papers presented at the conference will be published in the Ave Maria Law Review. Persons wishing to submit a paper should send three items by email to Professor Lynn D. Wardle (wardlel@lawgate.byu.edu), by September 5, 2005: (1) the working title of your paper, followed by your name, and a one-paragraph abstract or general description of the paper you plan to present,(2) your contact information including your name, title, institutional affiliation, postal address, telephone, and email address, and (3) a short (50-75-word) bio of your professional background relating to the topic of the symposium. We also invite scholars and students who do not wish to present papers but who are interested in the topics of the conference to attend. Those persons (and all persons with questions about logistics) should contact Marcene Mason (masonm@lawgate.byu.edu) who will be managing conference logistics. For further information contact Professors Lynn Wardle (wardlel@lawgate.byu.edu), or Richard Myers (rmyers@avemarialaw.edu).

Posted by Lawrence Solum at 8/02/2004 10:49:51 AM

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