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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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Thursday, September 30, 2004
 
Thursday Calendar
    Florida State University, School of Law: Deborah Schenk, New York University School of Law, Optimal Deterrence and Corporate Tax Shelters.
    Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error.
    Boston University Law Faculty Workshop: David Lyons.


 
Morris on the Civil Criminal Distinction Grant H. Morris (University of San Diego School of Law)has posted Mental Disorder and the Civil/Criminal Distinction (San Diego Law Review, Vol. 41, No. 3, 2004) on SSRN. Here is the abstract:
    This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence - serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process - people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and then broken and forgotten. The essay discusses the shift in Supreme Court jurisprudence from the Warren Court's liberal application of the Constitution to prohibit the special categorization of sentence-expiring prisoners and permanently incompetent criminal defendants for civil commitment, to the Burger and Rehnquist Court's conservative application of the Constitution to permit the special categorization of persons acquitted of crime by reason of insanity and sexually violent predators for civil commitment, and to permit the coerced treatment of competent, though dangerous, criminal defendants.


 
Zacharias on Lawyers as Gatekeepers Fred C. Zacharias (University of San Diego School of Law) has posted Lawyers as Gatekeepers (San Diego Law Review, 2004) on SSRN. Here is the abstract:
    Three recent legislative and regulatory initiatives - the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative - all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers - which some of the opponents deem equivalent to operating like the "secret police in Eastern European countries." This article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been. Whatever one's position on the merits of the specific reforms currently being proposed, it is important to avoid the misconception that lawyers have no role to play in preventing client misconduct. At its root, the gatekeeper rhetoric conflates several separate concepts. At one level, everyone will agree that lawyers are clients' agents and that lawyers' traditional role in the adversary system is to help clients pursue lawful goals through those lawful means that are available. That however, is quite different from saying that lawyers should do whatever clients want, that they should assist clients in achieving illegal pursuits, or that lawyers have no business shaping client ends. This Article canvasses four broad aspects of lawyers' traditional role that necessarily involve lawyers in regulating client conduct: (1) advising clients, (2) screening cases and legal arguments, (3) avoiding personal participation in improper behavior, and (4) disclosing confidences, when permitted by rule, to serve interests that trump the client's.


Wednesday, September 29, 2004
 
Call for Papers: 2005 Joint Session
    CALL FOR PAPERS 2005 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF MANCHESTER, 8-11 JULY OPEN SESSIONS A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate as many papers as time and space in the programme will allow. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to Dr. Anthony Hatzimoysis (Anthony.Hatzimoysis@man.ac.uk) by 1st March 2005. Decisions on whether papers have been accepted will be made by the end of April 2005. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid. Nobody should submit a paper for both the Postgraduate and the Open Sessions. POSTGRADUATE SESSIONS Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 95 or higher, otherwise in two hard copies, by 1st March 2005 to: Mr. A. W. Price, Department of Philosophy, Birkbeck College, Malet Street, London, WC1E 7HX. Email: a.price@bbk.ac.uk The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected by the Joint Committee for presentation at the Joint Session. The programme will be settled in May 2005. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. INVITED SPEAKERS Inaugural Address - Simon Blackburn Symposia: Alan Richardson and Thomas Uebel Derek Matravers and Jerrold Levinson Samuel Scheffler and Véronique Munoz-Dardé Stewart Shapiro and Patrick Greenough Jennifer Hornsby and Jason Stanley Marilyn Adams and Richard Cross Georgia Testa Executive Secretary The Aristotelian Society Room 260 Senate House Malet Street London WC1E 7HU Tel and fax: + 44 (0) 20 7255 1724 Email: mail@aristoteliansociety.org.uk http://www.aristoteliansociety.org.uk


 
Wednesday Calendar
    New York University Legal History Colloquium: William Novak, Visiting Professor, NYU School of Law.


Tuesday, September 28, 2004
 
Goodman on Media Policy Ellen P. Goodman (Rutgers University - Law School) has posted Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets on SSRN. Here is the abstract:
    Abstract: Media policy debates are today marred by outdated and ultimately unworkable justifications for government intervention in media markets. Both proponents and opponents of such intervention have obscured the appropriate goals of media policy. Moreover, they have paid insufficient attention to the impact of digital media on the marketplace of ideas. This article proposes a new account of media policy goals and offers the first detailed analysis of how new media market dynamics should affect future media policies. Policies that promote greater diversity in video products, whether through regulations or subsidies, serve both reactive and proactive purposes. In its reactive posture, media policy aims to correct what I call narrow market failures. These are failures of media markets to deliver content that small audience segments desire. But media policy must also pursue a proactive agenda by supplementing even well-functioning markets. This proactive thrust responds to broad failures of the market to deliver media content that audiences might not currently desire, but promotes democratic discourse and social solidarity. This article shows how digital networks substantially affect both reactive and proactive media policy objectives. Existing media policies are premised on the mid-twentieth century reality of scarce content and abundant audience attention. But in the digital era, it is attention that is scarce and content that is abundant. Drawing on empirical evidence and theory from several disciplines, I show how this shift changes the narrow market failures to which media policy must respond and undermines past responses to broad market failures. I conclude by applying these theories to media subsidies, arguing that subsidies for a robust public service media are the proper channel for media policy in the digital era from both a First Amendment and practical perspective.


 
Conference Announcement: Consequentialism at Edingurgh
    Conference on Consequentialism 24 October 2004 Timetable Session 1: 10.30am-11.30am Speaker: Julia Driver (Dartmouth College) ‘The actual in actualism’ Session Chair: Tim Chappell (Dundee University) Lunch: 11.30am-1pm Session 2: 1pm-2pm Speaker: Elinor Mason (Edinburgh University) ‘The High Price of Pluralism’ Chair: Session 3: 2pm-3pm Speaker: Brad Hooker (Reading University) ‘Reply to Arneson and McIntyre’ Chair: Tea: 3pm-3.30pm Session 4: 3.30pm-4.30pm Speaker: Elizabeth Ashford (St Andrews University) TBA Chair: Session 5: 4.30pm-5.30pm Speaker: David McCarthy (Edinburgh University) “Utilitarianism and Prioritarianism’ Chair:


Monday, September 27, 2004
 
Mondayh Calendar


Sunday, September 26, 2004
 
Legal Theory Calendar
    Monday, September 27 Wednesday, September 29
      New York University Legal History Colloquium: William Novak, Visiting Professor, NYU School of Law.
    Thursday, September 30
      Florida State University, School of Law: Deborah Schenk, New York University School of Law, Optimal Deterrence and Corporate Tax Shelters.
      Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error.
      Boston University Law Faculty Workshop: David Lyons.
    Friday, October 1
      University of San Diego's Institute for Law and Philosophy: Roundtable on Law and Morality.
      Georgetown Law and Economics: Kevin Davis, New York University School of Law, The Demand for Immutable Contracts: Another Look at the Law and Economics of Contract Modifications.


 
Legal Theory Lexicon: The Reasonable Person
    Who is the reasonable person and why hasn't she been attending class?
    Introduction Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational.
    The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.
    A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law.
    The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.
    When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end.
    When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent.
    So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due.
    Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones.
    Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.
    Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
      [T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
    United States v. Carroll Towing Co., 159 F.2d 169, 173, reh'g denied, 160 F.2d 482 (2d Cir.1947); see also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.).
    The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)
    Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis.
    Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons.
    Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.
    And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?
    Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.
    Bibliography
    • Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law, 74 Chi.-Kent L. Rev. 1431 (2000).
    • Stephen Gilles, On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury, 54 Vand. L. Rev. 813 (2001).
    • Kyron Huigens, Virtue and Criminal Negligence, 1 Buff. Crim. L. Rev. 431, 447-58 (1998).
    • Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996).
    • Gregory C. Keating, Pressing Precaution Beyond the Point of Cost-Justification, 56 Vand. L. Rev. 653 (2003).
    • Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996).
    • Stephen Perry, Cost Benefit Analysis and the Negligence Standard, 54 Vanderbilt L. Rev. 893 (2001).
    • Richard Posner, Economic Analysis of Law (6th ed. 2002).
    • John Rawls, Political Liberalism (Paperback ed. 1995).
    • Steven Shavell, Economic Analysis of Accident Law, (December 2002). Harvard Law and Economics Discussion Paper No. 396. http://ssrn.com/abstract=367800.
    • W.M. Sibley, The Rational and the Reasonable, 62 Phil. Rev. 554 (1953).
    • Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inquiries in Law 283 (2002).
    • Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values, 54 Vanderbilt L. Rev. 901 (2001).
    • Kenneth W. Simons, Negligence, 16 Social Philosophy and Policy 52 (1999).
    • Kenneth W. Simons, Deontology, Negligence, Tort, and Crime, 76 Boston U. L. Rev. 273 (1996).
    • Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law 249 (David G. Owen ed., 1995).
    I owe thanks to Ken Simons, who provided considerable assistance with this post.


Saturday, September 25, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Difficulty of Tolerance : Essays in Political Philosophy by T. M. Scanlon. Scanlon is without doubt one of the fienst moral philosophers of his generation. I sometimes find his prose frustrating--he often uses baroquely complex paragraph constructons--but, for me, the effort has always been worthwhile. Here is a blurb:
    These essays in political philosophy by T. M. Scanlon, written between 1969 and 1999, examine the standards by which social and political institutions should be justified and appraised. Scanlon explains how the powers of just institutions are limited by rights such as freedom of expression, and considers why these limits should be respected even when it seems that better results could be achieved by violating them. Other topics which are explored include voluntariness and consent, freedom of expression, tolerance, punishment, and human rights. The collection includes the classic essays 'Preference and Urgency', 'A Theory of Freedom of Expression', and 'Contractualism and Utilitarianism', as well as a number of other essays that have hitherto not been easily accessible. It will be essential reading for all those studying hese topics from the perspective of political philosophy, politics, and law.
And the synopisis is exactly right about A Theory of Freedom of Expression and Contractualism and Utilitarianism--these are both essential reading.


 
Download of the Week The Download of the Week is Judges as Rulemakers by Larry Alexander and Emily L. Sherwin. Here is the abstract:
    This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or from principles immanent in the body of precedent. The principal drawback of a rule-based model of precedent is its seeming resistance to change. After defending the rule model against its competitors, we discuss a variety of refinements that clarify the model and make it more amenable to legal reform. Topics covered include identification of precedent rules, preconditions for authority, decision-making in the absence of a precedent rule, and overruling.
Download it while its hot!


Friday, September 24, 2004
 
Yu on P2P Peter K. Yu (Michigan State University College of Law) has posted P2P and the Future of Private Copying (University of Colorado Law Review, Vol. 76, 2005) on SSRN. Here is the abstract:
    Since the beginning of the P2P file sharing controversy, commentators have discussed extensively the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have examined in detail the many aspects of the P2P file sharing controversy, none of them focuses on the big picture and explains how these issues fit within the larger P2P file sharing debate. Using a holistic approach, this Article takes on the ambitious task of bringing together existing scholarship while offering some thoughts on the future of private copying. This Article does not seek to offer any new theory or model, which could become obsolete quickly, or even immediately, as digital and P2P technologies advance. Rather, the Article provides guidelines as to how policymakers can craft the "ultimate solution" to the unauthorized copying problem. This Article begins by examining the RIAA's enforcement tactics, developments in copyright law in 2003, and possible challenges the entertainment industry will face in ensuing years. The Article then evaluates critically proposals commentators have put forward to solve the unauthorized copying problem: (1) mass licensing, (2) compulsory licensing, (3) voluntary collective licensing, (4) voluntary contribution, (5) technological protection, (6) copyright law revision, (7) dispute resolution proceeding, and (8) alternative compensation. Acknowledging the short-term and interim nature of many of these proposals, this Article contends that policymakers need to adopt a range of solutions that meet consumer needs while taking into account the Internet's structural resistance and networked feature and the changing social norms in the digital copyright world. This Article concludes by challenging policymakers and commentators to step outside their mental boundaries to rethink the P2P file sharing debate. In the fashion of thought experiments, this Article compares the digital copyright wars to (1) a self-preservation battle between humans and machines, (2) an imaginary World War III, and (3) the conquest of Generation Y. By using these comparisons, this Article demonstrates that policymakers should not focus on legal solutions alone. Instead, they should pay more attention to the market, architecture, and social norms, which play equally important roles in crafting the "ultimate solution" to the unauthorized copying problem.


 
Morgan & Zietlow on the New Parity Debate Denise C. Morgan and Rebecca E. Zietlow (New York Law School - General and University of Toledo - College of Law) have posted The New Parity Debate: Congress and Rights of Belonging on SSRN. Here is the abstract:
    In recent years a debate has emerged over whether parity exists between Congress and state legislatures that has yet to be the focus of significant scholarly attention. In contrast to the older dispute over the comparative strengths of federal and state courts made famous in Professor Burt Neuborne's 1977 Harvard Law Review article, The Myth of Parity, this new debate questions the competence of Congress compared to that of state and local legislatures to define and make enforceable individual rights. Whether parity exists between state and federal legislatures is especially salient in light of the Supreme Court's ongoing "Federalism Revolution" which has reduced Congress's legislative powers and created a vacuum in the protection of individual rights - presumably to be filled by the states. The most important question in the wake of those lines of cases is whether individual rights can still be effectively protected in the absence of a strong national legislature? Or has something significant been lost? Our article, The New Parity Debate: Congress and Rights of Belonging, argues that Congress plays an irreplaceable role in the protection of individual rights, such that the inevitable result of a reduction in that institution's power will be a rollback in those rights. We are particularly concerned about federal legislation that promotes a more inclusive vision of who belongs to the national community of the United States and that facilitates equal membership in that community. We refer to those rights as "rights of belonging." State legislation is simply not an adequate substitute for federal legislation because it must necessarily be piecemeal and varied. In contrast, Congress has greater institutional competence to determine when there is a need for rights of belonging than individual state legislatures have, only Congress can create a nationally uniform baseline of rights, and a shared understanding of rights of belonging reinforces those rights and strengthens our political community. We conclude that the Supreme Court should not attempt to delegate Congress's role in protecting rights of belonging to state governments based on the assumption that there is parity between the institutions.


 
Shavell on the Appeals Process Steven Shavell (Harvard Law School) has posted The Appeals Process and Adjudicator Incentives. Here is the abstract:
    The appeals process - whereby litigants can have decisions of adjudicators reviewed by a higher authority - is a general feature of formal legal systems (and of many private decisionmaking procedures). It leads to the making of better decisions, because it constitutes a threat to adjudicators whose decisions would deviate too much from socially desirable ones. Further, it yields this benefit without absorbing resources to the extent that adjudicators can anticipate when appeals would occur and would thus make decisions to forestall the actual occurrence of appeals.


 
Conference Announcement: Society for Applied Philosophy
    Society for Applied Philosophy INTERNATIONAL CONGRESS 2005 ST ANNE'S COLLEGE OXFORD 1-3 JULY Plenary speakers include: Allen Buchanan (Duke) Hubert L. Dreyfus (Berkeley) Frances Myrna Kamm (Harvard) Jeff McMahan (Rutgers) Onora O'Neill (Cambridge) CALL FOR PAPERS APPLIED PHILOSOPHY 25 YEARS ON: Problems and Prospects -------------------------------------------------------------------------------- The British Society for Applied Philosophy was established in 1980 and held its first one-day conference in 1981. To mark its 25th anniversary the Society is holding an international conference in the summer of 2005. The origins of applied philosophy can be traced back as far as Plato and Aristotle. The express identification of 'applied philosophy' was intended to promote the distinctive role of philosophical thinking in the examination and discussion of matters of practical consequence and public policy. The British Society for Applied Philosophy has played a key part in its subsequent advancement, through workshops and conferences, and especially the Journal of Applied Philosophy, now an established and acknowledged source of high quality work in the area. The SAP has decided to devote its annual conference for 2005 to an international retrospective on applied philosophy. The aim is to address the problems facing the subject as these have emerged over the last three decades, and to identify its most promising prospects for the next three. Four keynote lectures from leading figures will address this general theme. In addition, there will be a "Graduate Keynote" in which a postgraduate student will deliver the paper that has won the Applied Philosophy Postgraduate Prize Competition 2005 . As well as the keynotes, there will be concurrent sub-sessions organized around eight panels, covering all the major topics in applied philosophy. Paper proposals are now invited for these concurrent sub-sessions. The panels are as follows: Applied Philosophy in the History of Philosophy Applied Ethics Applied Aesthetics Environmental Philosophy Legal and Social Philosophy Philosophy of Economics Philosophy of Education Philosophy of Technology One page (250 words max.) abstracts should be submitted by 1st December 2004. Notification of acceptance by January 31st 2005. All abstracts will be peer refereed and accepted papers will be assigned a commentator. Offers are also welcome from those who would like to serve only as a commentator. ABSTRACTS should be submitted as an attachment for blind referee with author's full contact details in the message text of the email. Send to: admin@appliedphil.org (electronic format preferred) Or by post to: Jon Cameron SAP International Symposium Department of Philosophy University of Aberdeen AB24 3UB SCOTLAND


 
Friday Calendar


Thursday, September 23, 2004
 
Mercurio on Internet Voting as the Salvation of Democracy Bryan Christopher Mercurio (University of New South Wales - Faculty of Law) has posted Democracy in Decline: Can Internet Voting Save the Electoral Process? (John Marshall Journal of Computer & Information Law, 2004) on SSRN. Here is the abstract:
    This article evaluates the ability of Internet voting to improve the electoral process by comparing it against traditional methods of voting currently used. In order to clearly understand electoral issues, the article briefly describes the criteria needed in order to conduct a successful election. It then introduces and defines the different forms of Internet voting used in the context of this article before introducing and analyzing some major faults with the election system, including its discriminatory effect on minority and disabled voters. The article then evaluates the promise of Internet voting as a solution to these faults while also reviewing and substantially discrediting the perceived problems with implementing Internet voting. The article concludes by putting forward several proposals leading to the gradual introduction of Internet voting into the electoral landscape.


 
Alexander & Sherwin on Precedent Larry Alexander and Emily L. Sherwin (University of San Diego School of Law and Cornell University - School of Law) have posted Judges as Rulemakers (COMMON LAW THEORY, Douglas Edlin, ed., Cambridge University Press) on SSRN. Here is the abstract:
    This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or from principles immanent in the body of precedent. The principal drawback of a rule-based model of precedent is its seeming resistance to change. After defending the rule model against its competitors, we discuss a variety of refinements that clarify the model and make it more amenable to legal reform. Topics covered include identification of precedent rules, preconditions for authority, decision-making in the absence of a precedent rule, and overruling.
Highly recommended!


 
Zacharias on Recent Trends in Federal Regulation of Lawyers Fred C. Zacharias (University of San Diego School of Law) has posted Understanding Recent Trends in Federal Regulation of Lawyers (Professional Lawyer, Symposium Issue, 2003) on SSRN. Here is the abstract:
    Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation - themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place their criticisms in context. Only by placing the federal reforms in the context of the broader analytic themes can we begin to evaluate their actual and potential significance. The article concludes that no single explanation for the reforms is possible. They do not neatly fit a uniform pattern that reflects an overarching change in regulatory approaches or in society's attitudes towards the relative merits of state and federal regulation. They do, however, suggest a series of questions about traditional regulation that the federal actors have opened for discussion. The best view of recent events is that they have begun a process of negotiation with respect to particular substantive issues, potential new approaches, and the relative competence of different institutions to regulate different aspects of legal practice.


 
Prüfer on the Economics of Open Source Jens Prüfer (University of Frankfurt) has posted Why Do Developers and Firms Contribute to the Production of Open Source Software? on SSRN. Here is the abstract:
    This article explains why both software developers and firms contribute to the production of Open Source Software (OSS). Existing economic theories either focus on the supply side (developers) or the demand side (firms) of OSS development. This paper is the first to explain both sides in one integrated model by understanding the OSS production process as an application contest to the network of prominent developers. Programmers contribute because they aim for reputation and high salaries. Firms finance the process, since they receive inside information on highly talented developers not yet known on the regular job market.


 
Thursday Calendar


Wednesday, September 22, 2004
 
An Intriguing Proposal Karen Selick has an intriguing idea for the reform of Canada's highest court:
    With the recent appointment of two new judges to the Supreme Court of Canada, the controversy over how we select our top judges has been re-ignited. The court has been increasingly drawn into political issues of late. Consequently, groups from all across the political spectrum want these positions filled by judges who share their own ideology. That's why they want a role in questioning and vetoing candidates. I think I've got a better idea. It's radical, but in the long run it would diminish rather than increase the politicization of the court, and that's a good thing. There's no God-given rule that says there has to be a standing body called the Supreme Court of Canada. I think the nine permanent positions on the court should be abolished, and a system of case-by-case appointments should be adopted. There would be a pre-approved pool of qualified judges. It might include every judge currently on the provincial and territorial courts of appeal, plus perhaps some top professors from our law schools, and maybe even some renowned lawyers. Whenever a case arose that required an appeal to a final level in the judicial system, the litigants and their lawyers - in other words, the people most intimately involved in the case - would select the nine members of the panel who would serve. Each side would prepare a short list of its preferred nine judges. If a judge's name appeared on both short lists, he or she would automatically be in. The remaining vacant positions would be allocated equally to the two sides, to be filled with their top choices. If there were an odd number, the judges already selected would choose someone to fill the final slot. We would also allow each side to veto one or two of the judges shortlisted by the other side. This would ensure that the ideologues most objectionable to each side would not get a chance to sit in judgment over them.
Courtesy of reader Carson Cheng.


 
Program Annoucement: The Past Present and Future in Antitrust Enforcement at the FTC
    10th Anniversary Speaker Series Monday, September 27, 2004 The Past Present and Future in Antitrust Enforcement at the FTC A Lunch Address by Robert Pitofsky Former Chair, Federal Trade Commission Cosponsored by the Illinois State Bar Association Antitrust and Unfair Competition Law Section 12 Noon Kasbeer Hall 25 E. Pearson 15th Floor Loyola University Chicago Chicago, IL 60611 Lunch and Lecture are free to members of the Loyola Community and ISBA Antitrust Section. A $25 donation is requested of all other guests. RSVP to/ Make Check payable to: Institute for Consumer Antitrust Studies Loyola University Chicago School of Law 1 E. Pearson Street Chicago, IL 60611 312-915-8598 Email: antitrust@luc.edu Website: www.luc.edu/antitrust


 
Can a Moral Subjectivist Change Her Mind? Take a look at Intra-Personal Moral Disagreement by Uriah Kriegel on Desert Landscapes. Here is a taste:
    Some subjectivist and/or anti-realist positions are sometimes accused of not making room for genuine moral disagreement. Take straightforward expressivism. According to it, when two people say one that abortion is wrong and one that abortion is right, the first is merely saying “boo to abortion” and the other “hurrah to abortion.” No conflict between two claims that could not both be true. It occurs to me that this may lead to an even greater embarrassment. If a theory entails the impossibility of inter-personal disagreement, it probably also entails the impossibility of intra-personal disagreement, that is, change of view. Suppose Person holds in 2003 that abortion is wrong and in 2004 that it’s right. We would like to say that Person changed her mind on the topic of abortion. But according to expressivism, she merely felt “boo to abortion” in 2003 and “hurrah to abortion” in 2004. No conflict.


 
Program Announcement: Knowledge Anywhere, Anytime at Stanford
    US-ASIA TECHNOLOGY MANAGEMENT CENTER (US-ATMC) and Alliance Forum present Knowledge Anywhere, Anytime: the World at your Fingertips a half-day program featuring
      Dr. Keiji Tachikawa, Former President & CEO, NTT DoCoMo, Inc Mr. Seiichi Shimada, President & CEO, Nihon Unisys Ltd Mr. George Hara, Managing Partner, Defta Partners Dr. Gerry Purdy, Principal Analyst, Mobile Trax LLC Dr, Minoru Etoh, President & CEO, DoCoMo Labs, USA
    Friday, September 24, 2:00 p.m. -5:30 p.m. Mudd Chemistry Building (Braun Auditorium), Stanford University Free Admission * Public Welcome R.S.V.P Required by e-mail to viji@stanford.edu More details at http://asia.stanford.edu/events/Alliance04/sept24.html Directions & Parking at http://asia.stanford.edu/events/MuddChemistry.html


 
Wednesday Calendar
    Georgetown Law & Economics Workshop: Richard Posner, United States Court of Appeals for the Seventh Circuit & University of Chicago Law School, The Law and Economics of Contract Interpretation. (Anyone have a link to (or copy of) this paper?)
    Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst.
    Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004.


Tuesday, September 21, 2004
 
Lecture Announcement: Perry at Notre Dame
    At Notre Dame, the first Natural Law Institute lecture of the academic year is scheduled for Tuesday, September 28 at 4:00 p.m. Stephen Perry, the Fiorello LaGuardia Professor of Law and Professor of Philosophy at NYU Law School, is the speaker. His lecture is titled "Law and Obligation".


 
Conference Announcement: Bellhead/Nethead: The FCC Takes On The Internet
    On Tuesday, September 28, 2004, the Floersheimer Center for Constitutional Democracy, at the Benjamin N. Cardozo School of Law, in conjunction with the Yale Information Society Project, will sponsor Bellhead/Nethead: The FCC Takes On The Internet. This one-day conference will take place at the Benjamin N. Cardozo School of Law in New York City. The conference will bring together representatives from the FCC, the telecommunications and internet industries, a diverse array of public policy organizations, and the legal academic community, to discuss the regulation of IP-enabled services. We hope you will join us. Please register here so that we can send you updates about the conference. The conference will explore four major threads under the umbrella of regulation of IP-enabled services. This web site will be a central resource for the various viewpoints represented in these discussions. You will find information about the conference as well as materials relevant to the various panel discussions. Check back frequently as the links here will be updated to track ongoing developments. Visit a specific Panel page through the links on the left. Session Topics Panel 1: Justifications for Regulation What is/are the justification(s) for FCC regulation of IP-enabled services, as those services are defined in n.1 of the NPRM? How persuasive are these justifications? Do different justifications underlie different aspects of the proposed rulemaking? What are possible responses to these proposed justifications? Are justifications for traditional FCC regulation of traditional services transferable to this setting? Panel 2: Ancillary Jurisdiction What are the arguments for and against FCC's exercise of "ancillary jurisdiction" over IP-enabled services, as such services are defined in n.1 of the NPRM? Are there new ways of thinking about the FCC's role and/or the jurisdictional approach suggested by the NPRM (e.g., a "layers" approach) that might be useful? Can the FCC preempt state actions without itself acting? Panel 3: Universal Service Should universal service contributions be required of all IP-enabled services? Or only those that use telephone numbers or connect to the telephone system? Or none? Panel 4: CALEA What is the proper scope of CALEA's coverage? As a matter of policy? Of law? What is likely to happen next in this debate?


 
Tuesday Calendar
    Harvard Law and Economics Seminar: George Triantis (University of Virginia School of Law) and Robert Scott (University of Virginia School of Law), Embedded Options and the Case Against Compensation in Contract Law.


Monday, September 20, 2004
 
Monday Calendar
    Loyola Marymount University, Loyola Law School, Faculty Workshop: Troy Paredes, Associate Professor of Law, Washington University - St. Louis, School of Law, Too Much Pay, Too Much Deference: Is CEO Overconfidence the Product of Corporate Governance?.
    Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax.
    New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced.


 
Weekend Update On Saturday, the Download of the Week was Constitutional Amendments and the Constitutional Common Law by Adrian Vermeule and the Legal Theory Bookworm recommended Promises to Keep by William Fisher. On Sunday, the Legal Theory Lexicon topic was "Hypotheticals" and the Legal Theory Calendar is back in full swing.


 
Rasmusen on Lemley and the Consumer Surplus Argument for IP Check out The Consumer Surplus Argument for Patent Monopolies on Rasmusen's Not Politics Weblog.


 
Metaethics in Legal Reasoning Download Meta Ethics in Legal Reasoning by Hanno Kaiser of Law & Society Weblog.


 
McCaffery & Siemrod on Behavioral Public Finance Edward J. McCaffery and Joel B. Slemrod (University of Southern California - Law School and University of Michigan Business School) have psoted Toward an Agenda for Behavioral Public Finance on SSRN. Here is the abstract:
    Public finance is one of the oldest sub-fields in economics and social science, behavioral economics among the youngest. While the field of behavioral finance has received much attention, behavioral public finance has received far less. Yet the absence of any simple arbitrage mechanism in the public sphere, such as markets and competition in private domains, suggests that the effects of deviations from rationality may pervade public finance. This article surveys the potential new field of behavioral public finance and notes three broad areas for further inquiry and development: (1) the role of form and framing in the design of public finance mechanisms, (2) the significance of time inconsistency and problems of self-control in employing welfarist models of public policy and (3) alternative models of taxpayer compliance. The three areas illustrate, however tentatively, the need for researchers and policy-makers to use realistic assumptions of human judgment and decisionmaking in considering important questions in public finance.


 
Burke on Lee Alafair S. Burke (Hofstra University - School of Law) has posted BOOK REVIEW: Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom. By Cynthia Lee. (Michigan Law Review, 2005) on SSRN. Here is the abstract:
    In her recently published book, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, Cynthia Lee weaves together an array of case narratives to argue that the concept of reasonableness in self-defense and provocation cases allows majority culture defendants to benefit from jurors' deeply ingrained biases. She makes her case by drawing from three categories of cases: men who claim they were provoked to kill by female infidelity; "gay panic" cases, in which heterosexual defendants claim self-defense or provocation from unwanted homosexual advances; and "racialized fear" cases, in which white defendants claim self-defense to justify the killing of victims of color. Lee argues that the role of reasonableness in the law of criminal defenses permits the majority culture defendants in these cases to benefit from unspoken juror biases that render male jealousy, heterosexual protectiveness, and white fears of people of color understandable. Lee's reassessment of the reasonableness requirement launches primarily from her concern about this inequity. Having identified her primary concern, Lee devotes the bulk of her book to the development of three reforms. First, she argues that jurors should be required to apply a normative concept of reasonableness in addition to an empirical one, focusing not only on what most individuals might have believed or done in the defendant's situation, but also on what an individual ought to have believed or done. Second, she maintains that jurors should evaluate the reasonableness of not only the defendant's beliefs, but also his actions. Finally, and most interestingly, Lee encourages a trial practice of "switching," in which jurors would be asked to switch the races, genders, and sexual orientations of the parties involved in the case in order to expose any hidden biases. In this review, I attempt to situate Lee's recommendations within the broader debates in current criminal law scholarship between rule-based and standard-based defenses and between "objective" and "subjective" standards for judging claims of reasonableness. Situating her analysis within the broader literature on criminal defenses, I recharacterize her recommendation that jurors evaluate the reasonableness of both the defendant's beliefs and his conduct as a call for criminal defenses defined by flexible standards, rather than by imperfect rules intended to reflect those standards. Only when defenses have resorted to imperfect rules has it created the potential for defendants who believed reasonably, but behaved unreasonably, to avoid criminal liability. I then turn to Lee's suggestion of using "switching" and attempt to discern its implications for the broader dichotomy between subjective and objective standards of reasonableness. The standard story here juxtaposes an objective standard of reasonableness with a so-called subjective one in which jurors evaluate the defendant's reasonableness by comparing him to a hypothetical reasonable person sharing all of the individual defendant's relevant character traits. Although the battered woman has been depicted as the "poster child" of subjectivity, Lee adds a new dimension to this traditional dichotomy by suggesting that it is not battered women but, rather, white, heterosexual men who are most able to manipulate the concept of reasonableness by invoking dominant cultural norms. Although Lee sees switching as a way to neutralize stereotypes in the cases that concern her, I see it more broadly as a method of implementing an objective, contextualized standard of reasonableness in which jurors would compare the defendant to a hypothetical neutral reasonable person - without gender, race, or sexual orientation - in the defendant’s situation. By tackling their intuitive responses to switching exercises, jurors conjuring a neutral reasonable person in the defendant's shoes might best be able to isolate the relevant, objective circumstances that should properly contextualize the defendant's situation, a task that has troubled courts and scholars since the emergence of the battered woman self-defense cases.


 
Berg on Owning Persons Jessica Wilen Berg (Case Western Reserve University - School of Law) has posted Owning Persons: The Application of Property Theory to Embryos and Fetuses on SSRN. Here is the abstract:
    Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking. This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories. The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses.


 
Sunder on Property in Personhood Madhavi Sunder (University of California, Davis - School of Law) has posted Property in Personhood (RETHINKING COMMODIFICATION: CASES AND READINGS IN LAW & CULTURE, Martha M. Ertman and Joan C. Williams, eds., 2005) on SSRN. Here is the abstract:
    Traditional communities oppose multinational corporations' efforts to patent traditional remedies. Native Americans contest the Washington Redskins trademark as disparaging. A small New Mexican Indian tribe sues the state government for using a spiritual symbol on the state flag. Australian aboriginal communities seek collective copyrights in their artwork. Indigenous peoples in Canada want copyrights in traditional stories. More and more, historically subordinated groups are turning to concepts of intellectual property - albeit grounded in identity and culture, not economic incentives - as a means to protect against cultural imperialism, cultural appropriation, and digital appropriation. Current trends in academic thinking do not bode well for these new claims for property in personhood: commodification scholars warn that commodification will lead to the alienation, rather than the preservation, of indigenous culture. Anthropologists argue that property rights essentialize and freeze traveling cultures. Others view these claims as the first step on a slippery slope toward slavery. Finally, there are the critiques from intellectual property, where increasingly scholars bemoan what is called "the new enclosure movement" in ideas. But the new claims for intellectual property rights as social relations cannot be dismissed easily. Assertions of power over one's own identity necessarily lead to assertions of property ownership. As Radin has taught us, property is an essential part of what it means to be fully human. Property enables us to have control over our external surroundings. Seen in this light, it is not enough to see all claims for more property simply as intrusions into the public domain - that is, "bad intellectual property" - or as cultural essentialism, that is, "bad identity politics." Instead, we may begin to see them as assertions of personhood. Just as contemporary property law recognizes property as social relations, we must begin to view intellectual property in a similar way. Indeed, to the extent that contemporary property law offers a balanced, complex, and dialogical view of social relations, the possibilities for property rights in identity are not entirely bleak. Indeed, where scholars increasingly criticize identity politics for relying on a monologic understanding of identity, property could be just what identity politics needs. In other words, while current claims for property in personhood tend toward essentialized views of both property and culture, they need not do so. Far more sophisticated understandings of both property and culture exist. We should not categorically fear the rise of new property rights. Rather, there is much to be gained from articulating competing descriptive and normative visions of intellectual property, particularly those that challenge the historically dominant paradigms.


Sunday, September 19, 2004
 
Legal Theory Calendar
    Monday, September 20
      Loyola Marymount University, Loyola Law School, Faculty Workshop: Troy Paredes, Associate Professor of Law, Washington University - St. Louis, School of Law, Too Much Pay, Too Much Deference: Is CEO Overconfidence the Product of Corporate Governance?.
      Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax.
      New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced.
    Tuesday, September 20
      Harvard Law and Economics Seminar: George Triantis (University of Virginia School of Law) and Robert Scott (University of Virginia School of Law), Embedded Options and the Case Against Compensation in Contract Law.
    Wednesday, September 22
      Georgetown Law & Economics Workshop: Richard Posner, United States Court of Appeals for the Seventh Circuit & University of Chicago Law School, The Law and Economics of Contract Interpretation.
      Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst.
      Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004.
    Thursday, September 23 Friday, September 24


 
Legal Theory Lexicon: Hypotheticals
    Introduction The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are." The purpose of this post is to reflect on the "hypothetical," with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorous and analytically about hypotheticals, what they are, what they can and can't accomplish, how to construct them, and how to maneuver around them.
    What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."
    In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.
    Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:
    • What if the agreement had been oral instead of in writing?
    • What if the contract price had been $300?
    • What if Alice had been a minor?
    • What if the contract had not specified a price?
    • What if Alice did the job, but the roof still leaked?
    And so on.
    The Purposes of Hypotheticals Why do law professors use hypotheticals?
    • As a tool for the explication of legal doctrine.
    • As a tool for exploring the moral underpinnings of legal rules.
    • As a tool for exploring the consequences of legal rules.
    Law students quickly become familiar with the first of the three kinds of hypotheticals. They read a case and learn a rule. The professor then poses hypothetical variations on the case to test the student's knowledge of the rule. Typically, the hypo is followed with a question like, "What result?" But legal education is also about the normative analysis of legal doctrine, and hypotheticals can also be used to explore our intuitions about the morality of the law. Such hypos are frequently end with, "What should the result be?" And the follow-up question, "That's the rule, but do you think that is the right result?" Finally, contemporary legal education incorporates a healthy dose of economic analysis. So, we can add information about prices to hypos and then ask what consequences a rule will produce if the various actors are "rational" in the economic sense.
    "Beware the hypothetical, my son. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.
    Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.
    Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.
    Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."
    Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
      Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.
      Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
        (1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).
        (2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
        (3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
      Hard cases are the meat and potatoes of law school.
      Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fair to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the dessert of law school.
    There is a lot more to learn about hypotheticals (perhaps in a second installment in the Legal Theory Lexicon, but these four lessons should get you started. Take your vorpal sword in hand!


Saturday, September 18, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Promises to Keep by William W. Fisher III. Here is a blurb:
    During the past fifteen years, changes in the technologies used to make and store audio and video recordings, combined with the communication revolution associated with the Internet, have generated an extraordinary array of new ways in which music and movies can be produced and distributed. Both the creators and the consumers of entertainment products stand to benefit enormously from the new systems. Sadly, we have failed thus far to avail ourselves of these opportunities. Instead, much energy has been devoted to interpreting or changing legal rules in hopes of defending older business models against the threats posed by the new technologies. These efforts to plug the multiplying holes in the legal dikes are failing and the entertainment industry has fallen into crisis. This provocative book chronicles how we got into this mess and presents three alternative proposals—each involving a combination of legal reforms and new business models—for how we could get out of it.
I'm only about 1/2 into Fisher's book--which certainly deals with the hottest issues in copyright law in an intelligent and nuanced way.


 
Download of the Week This Download of the Week is Constitutional Amendments and the Constitutional Common Law by Adrian Vermeule. Here is the absract:
    Constitutions obsolesce rapidly, and must be updated over time to reflect changes in the polity's circumstances and citizens' values. What institution or process should be entrusted with the authority to do the updating? If periodic wholesale replacement of the constitution is infeasible, the plausible choices are the constitutional amendment process set out in Article V, flexible interpretation by judges under the banner of constitutional common law, or some mix of the two. Here I explore the question by comparing the relative merits of formal amendments and the constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over the amendment process, and also attempt to sketch the empirical conditions under which either process proves superior to the other. My principal target is a standard academic view that I shall call "the generic case against constitutional amendment." On this view, there are good general reasons to reject, or to indulge a presumption against, any proposed amendment. Among these reasons are the following claims: it is bad to "tamper" with the Constitution; the Constitution should not be "cluttered up" with amendments that will "trivialize" its majesty; constitutional amendments are "divisive" or "polarizing"; constitutional amendments may have bad unanticipated consequences; and constitutional amendments diminish the coherence of the constitutional text or of judicially-developed constitutional doctrine. Something like this view has become the conventional wisdom in the legal academy, following explicit arguments by Kathleen Sullivan and others. I argue that the generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of common law constitutionalism. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution over time - a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Once we have dispelled the nirvana fallacy underlying the generic case against amendment, constitutional updating is seen to pose a comparative institutional question. Constitutional amendment, on the one hand, and constitutional common law, on the other, are alternative institutional processes for managing the inevitable updating of constitutional law over time. Under what circumstances might one process or the other prove superior? What institutional considerations, or variables, determine their relative performance? I consider the strengths and weaknesses of each process: relative to common-law constitutionalism, the amendment process is less focused on the facts of particular cases (both for good and ill); puts less weight on the views of past judges (both for good and ill); allows for the participation of decisionmakers from a broader range of professions and backgrounds (both for good and ill); produces more enduring constitutional settlements, albeit at higher initial cost; and trades the benefits of flexibility for the benefits of rigidity. Amendments show to best advantage, relative to common-law constitutionalism, where the constitutional changes in question involve large value choices as opposed to technical improvements in the law, where constitutional change must be systemic and simultaneous rather than piecemeal, and where irreversible change is more valuable than reversible change.
I always learn from Vermeule, and I am frequently provoked as well! Download it while its hot!


Friday, September 17, 2004
 
Garrett on Framework Legislation Elizabeth Garrett (University of Southern California - Law School) has posted Conditions for Framework Legislation on SSRN. Here is the abstract:
    Congress structures some of its deliberation and decision making through framework legislation. Framework laws establish internal procedures and rules that will shape legislative deliberation and voting with respect to a specific subset of laws or decisions in the future. Although framework laws are passed in statutory form, the portions of the laws that set out internal frameworks are usually identified as exercises of the two houses’ constitutional rulemaking powers, and the right of either house to change the framework unilaterally is, in most cases, explicitly reserved. Framework laws are familiar, although little scholarly attention has been paid to them as a related legislative phenomenon in the United States. I specify some of the conditions that are necessary for the adoption of framework laws. In Part I, I present two necessary conditions that make it possible for Congress to use a framework law to deal with a set of particular decisions defined in the framework. Even when these conditions are present, Congress may decline to use the option of a framework, but without the two conditions, a framework is not an option for lawmakers. First, Congress must be able to identify a concrete problem and describe it with specificity so that the framework can be triggered in appropriate circumstances. Second, the partisan configuration of Congress is significant in several ways to the adoption of framework laws, although further empirical work focused on each of the two houses is required to specify this condition more fully. In Part II, I assess three conditions that could lead Congress to choose the statutory path with respect to framework laws, rather than using an internal vehicle like a concurrent or simple resolution. First, Congress may use a statute to signal that it is making a significant change in the way it does business and that it perceives the change as more durable than other rule changes. I conclude that this has little explanatory power. Second, and most importantly, Congress will use a statute when the internal procedural change is an integral part of a larger package that must be adopted simultaneously and contains some parts that must be enacted with legal effect. In many cases, the framework is part of a larger “inter-branch treaty” that affects both houses of Congress and the executive branch, often with provisions delegating authority to the President. This is a necessary condition for enactment of frameworks. Finally, path dependency and institutional learning play a role, so that when an area like budgeting or trade begins to be characterized by rulemaking statutes, then future changes also tend to be adopted by statute. This is a plausibility condition, making it more likely that internal rules will be adopted by statute, but it is not a necessary condition.
Highly recommended!


Thursday, September 16, 2004
 
Smith on Conscience Steven Douglas Smith (University of San Diego - School of Law) has posted The Tenuous Case for Conscience on SSRN. Here is the abstract:
    If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters? This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.
Highly recommended!


 
Vermeule on Constitutional Amendments & Constitutional Common Law Adrian Vermeule (University of Chicago Law School) has posted Constitutional Amendments and the Constitutional Common Law on SSRN. Here is the absract:
    Constitutions obsolesce rapidly, and must be updated over time to reflect changes in the polity's circumstances and citizens' values. What institution or process should be entrusted with the authority to do the updating? If periodic wholesale replacement of the constitution is infeasible, the plausible choices are the constitutional amendment process set out in Article V, flexible interpretation by judges under the banner of constitutional common law, or some mix of the two. Here I explore the question by comparing the relative merits of formal amendments and the constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over the amendment process, and also attempt to sketch the empirical conditions under which either process proves superior to the other. My principal target is a standard academic view that I shall call "the generic case against constitutional amendment." On this view, there are good general reasons to reject, or to indulge a presumption against, any proposed amendment. Among these reasons are the following claims: it is bad to "tamper" with the Constitution; the Constitution should not be "cluttered up" with amendments that will "trivialize" its majesty; constitutional amendments are "divisive" or "polarizing"; constitutional amendments may have bad unanticipated consequences; and constitutional amendments diminish the coherence of the constitutional text or of judicially-developed constitutional doctrine. Something like this view has become the conventional wisdom in the legal academy, following explicit arguments by Kathleen Sullivan and others. I argue that the generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of common law constitutionalism. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution over time - a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Once we have dispelled the nirvana fallacy underlying the generic case against amendment, constitutional updating is seen to pose a comparative institutional question. Constitutional amendment, on the one hand, and constitutional common law, on the other, are alternative institutional processes for managing the inevitable updating of constitutional law over time. Under what circumstances might one process or the other prove superior? What institutional considerations, or variables, determine their relative performance? I consider the strengths and weaknesses of each process: relative to common-law constitutionalism, the amendment process is less focused on the facts of particular cases (both for good and ill); puts less weight on the views of past judges (both for good and ill); allows for the participation of decisionmakers from a broader range of professions and backgrounds (both for good and ill); produces more enduring constitutional settlements, albeit at higher initial cost; and trades the benefits of flexibility for the benefits of rigidity. Amendments show to best advantage, relative to common-law constitutionalism, where the constitutional changes in question involve large value choices as opposed to technical improvements in the law, where constitutional change must be systemic and simultaneous rather than piecemeal, and where irreversible change is more valuable than reversible change.


 
Long on Information Costs in Patent & Copyright Clarisa Long (Virginia) has posted Information Costs in Patent and Copyright (Virginia Law Review, Vol. 90, No. 2, 2004) on SSRN. Here is the abstract:
    Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.


 
Molot on Principled Minimalism Jonathan T. Molot (The George Washington University Law School) has posted Principled Minimalism: Restriking The Balance Between Judicial Minimalism And Neutral Principles (Virginia Law Review, 2004) on SSRN. Here is the abstract:
    Scholars who grapple with the Rehnquist Court's activism understandably have relied on the work of those who grappled with the Warren Court's activism several decades ago. In particular, they have built upon the work of Alexander Bickel, responding to the countermajoritarian difficulty by emphasizing just how much courts should leave unresolved. But this contemporary emphasis on judicial minimalism overlooks half of an important tradition. From the time of the Founding right up until Bickel, judicial power was defended based not only on its narrowness, but also on the expectation that judges would base their decisions on law. The other half of this tradition, captured by Herbert Wechsler in his famous Neutral Principles article, has been largely overlooked. The goal of this Article is to correct the current imbalance between the neutral-principles and minimalist traditions. The Article employs institutional and historical analysis both to cast doubt on the wisdom of the recent shift toward minimalism and to support a jurisprudence of principled minimalism in its place.


 
Jolls & Sunstein on Debiasing Christine Jolls and Cass R. Sunstein (Harvard Law School and University of Chicago Law School) have posted Debiasing through Law on SSRN. Here is the abstract:
    Human beings are often boundedly rational. In the face of bounded rationality, the legal system might attempt either to "debias law," by insulating legal outcomes from the effects of boundedly rational behavior, or instead to "debias through law," by steering legal actors in more rational directions. Legal analysts have focused most heavily on insulating outcomes from the effects of bounded rationality. In fact, however, a large number of actual and imaginable legal strategies are efforts to engage in debiasing through law - to help people reduce or even eliminate boundedly rational behavior. In important contexts, these efforts promise to avoid the costs and inefficiencies associated with regulatory approaches that take bounded rationality as a given and respond by attempting to insulate outcomes from its effects. This Article offers both a general theory of debiasing through law and a description of how such debiasing does or could work to address central legal questions in a large number of domains, from employment law to consumer safety law to corporate law to property law. Discussion is devoted to the risks of overshooting and manipulation that are sometimes raised when government engages in debiasing through law.


 
Emens on Mental Illness & the ADA Elizabeth F Emens (University of Chicago - Law School) has posted The Sympathetic Discriminator: Mental Illness and the ADA (Georgetown Law Journal, 2005) on SSRN. Here is the abstract:
    Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional contagion is a largely unconscious process by which we absorb the emotions of nearby others. Research on emotional contagion indicates that people with mental illness are likely to prompt others to absorb their negative emotions, and that emotional contagion increases the more we like someone. Contrary to the much-vaunted contact hypothesis that workplace integration increases liking and decreases discriminatory animus, then, integration of people with mental illness may instead give coworkers and employers more reason to want to avoid people with mental illness. These insights have at least four doctrinal implications. First, the Americans with Disabilities Act (“ADA”) requires employers to bear the hedonic costs imposed on the workplace by employees with mental illness, subject to certain limitations. In particular, employers may not generally define the essential functions of a job to include not inflicting hedonic costs, with the exception of jobs that have the mental state of others as their focus. Second, understanding both the centrality of hedonic costs to mental illness and the mechanism of emotional contagion helps resolve a disagreement between circuits about whether the employer or the employee bears the greater responsibility for effective negotiations about reasonable accommodation of a disability. Third, at a time when the EEOC's most promising interpretation of what it means for a person to be "regarded as" disabled is on uncertain footing in the courts, an awareness of negative emotional contagion and other hedonic costs of mental illness helps show why that disputed interpretation is in fact vital to implementing the mandate of the ADA. Finally, appreciating the understandable fear of the hedonic costs of mental illness helps explain the difficulty courts have had with the apparently easy doctrinal question of whether interacting with others is a major life activity for purposes of the definition of disability under the ADA, and thus helps supply an answer to that question.


Wednesday, September 15, 2004
 
Green & Zacharias on Prosecutorial Neutrality Bruce A. Green and Fred C. Zacharias (Fordham University School of Law and University of San Diego School of Law) have posted Prosecutorial Neutrality (Wisconsin Law Review, 2004) on SSRN. Here is the abstract:
    This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be "neutral" in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as "quasi-judicial" officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The Article demonstrates that, standing alone, the notion of prosecutorial neutrality is unenlightening because the term potentially encompasses a series of norms that are uncertain in meaning. Commentators need to be more precise about what they expect of prosecutors and how particular prosecutors have fallen short of expectations. Yet the Article also concludes that the alternative conceptions of prosecutorial neutrality share a valid core premise: that prosecutors should make decisions based on articulable principles or sub-principles that command broad societal acceptance. This insight poses a challenge, for prosecutors have never, either individually or collectively, undertaken the task of identifying workable norms for the array of discretionary decisions that their offices make each day.


 
Lee on Foreign Law in IP Cases Edward Lee (Ohio State University - Michael E. Moritz College of Law) has posted The New Canon: Using or Misusing Foreign Law to Decide Domestic Intellectual Property Claims (Harvard International Law Journal, Vol. 46, 2005) on SSRN. Here is the abstract:
    This Article provides the first in-depth analysis of the use of foreign authorities to resolve issues related to domestic statutes, particularly focusing on intellectual property (IP) statutes. The study of IP statutes provides a fertile area of research because of the increased pressures for international protection of IP. The Article criticizes the current approach U.S. courts have taken to using foreign authorities in this area, which can best be described as ad hoc. The Article then sets forth a framework by which U.S. courts can decide, more systematically, when to rely on foreign authorities in IP cases. The Article fills a major gap in the current debate over the use of foreign authorities in domestic cases. Most of the recent contributions on this controversial subject from legal scholars, lawmakers, and Supreme Court justices have been fixated on constitutional law. It is at least as important, however, to ask whether U.S. courts may rely on foreign authorities in resolving claims arising under domestic statutes. This Article aims to answer that question for the field of intellectual property, where citations to foreign authorities are becoming more frequent.


 
Kerr on Technology & Privacy Orin S. Kerr (George Washington University Law School) has posted Technology, Privacy, and the Courts: A Reply to Colb and Swire (Michigan Law Review, Vol. 102, pp. 934-943, March 2004) on SSRN. Here is the abstract:
    This is a brief reply to published comments by Professor Sherry Colb and Professor Peter Swire on an article by Professor Orin Kerr entitled, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution," forthcoming in the Michigan Law Review. This reply will be published along with the lead article and the comments by Swire and Colb. The reply contains a response to Professor Colb followed by a response to Professor Swire. Topics covered include the relative competence of Congress and the Courts in the protection of privacy involving new technologies; the constitutional authority of Congress to protect privacy in new technologies; and the pragmatist case for reading privacy statutes broadly.


 
Radin & Sunder on Commodification Margaret Jane Radin and Madhavi Sunder (Stanford University - School of Law and University of California, Davis - School of Law) have posted The Subject and Object of Commodification (RETHINKING COMMODIFICATIONS: CASES AND READINGS IN LAW AND CULTURE, Martha M. Ertman, Joan C. Williams, eds., 2005) on SSRN. Here is the abstract:
    This book reveals the changing subject(s) and object(s) of commodification. It traces how the academic discourse evolved, both in its treatment of commodification as an academic topic (subject) of study and in its views of the purpose (object) of commodification; as well as how the discourse evolved in its views of the subject in a relationship of commodification (the owner) and the object in a relationship of commodification (the thing owned). The book begins by establishing a canon of commodification discourse. Debates over commodification have occurred primarily within two disciplinary frameworks: economics and cultural studies. We review the foundational works of scholars in these fields. We observe that in the two decades since these works surfaced, the subject and object of commodification have taken a distinctly cultural turn. What might broadly be called a cultural studies approach animates much of the new commodification scholarship published herein. For these scholars, commodification and culture are indelibly linked. The cultural study of commodities in motion focuses on the changing meaning of the commodity as it passes through various local and global circuits, including markets. Cultural studies theorists argue that, in many cases, individual agents, not just the hegemonic market, control those meanings. Thus, commodities are in motion both literally and figuratively. As they pass through various physical spaces, they also undergo semiotic changes. A new age of freedom through commodification, or what Arjun Appadurai has termed commodity resistance? According to some, yes. Read as a whole, the essays in the latter half of this volume suggest an emerging new conception of human flourishing itself: today, demands for equality include a right to compensation and control in the world's markets. This rhetoric hearkens back to old-style market-liberationism. The question is if, and how, they are different.


 
Conference Announcement: ISUS
    PLEASE REPLY TO: utilitarianism.2005@Dartmouth.edu International Society for Utilitarian Studies call for abstracts The International Society for Utilitarian Studies (ISUS) will be holding its next meeting August 11-14, 2005 at Dartmouth College in Hanover, New Hampshire. We are now accepting submissions of abstracts. Abstracts should be 200-300 words long on any topic of interest to Utilitarianism or Consequentialism, broadly construed, including criticisms of Utilitarianism and Consequentialism. We will begin making our selections as of January 1, 2005 and will consider any abstracts submitted up to February 28, 2005. Prizes: there will be a prize of $1,000 awarded for best overall paper at the conference. Featured speakers are not eligible for this prize. Papers will be judged at the time of the conference. There will also be 3 prizes awarded to graduate student papers of up to $500 each for travel expenses to the conference. To be eligible for this prize graduate students must submit a full paper rather than an abstract. Abstracts may be sent electronically to: Utilitarianism.2005@Dartmouth.edu or by mail to the organizers: Julia Driver Walter Sinnott-Armstrong Department of Philosophy Dartmouth College Hanover, NH 03755 U.S.A. for more information see www.dartmouth.edu/~isus2005/


Tuesday, September 14, 2004
 
Foundations of Political Theory Book Reviews
    Quentin Skinner and Bo Strath, eds. States and Citizens: History, Theory and Prospects. Cambridge University Press, 2003. $21.99 (paper), $60.00 (cloth). Reviewed by Ronen Steinberg.
    Martha Nussbaum. Upheavals of Thought: The Intelligence of Emotions. Cambridge University Press, 2003. $26.99 (paper), $50.00 (cloth). Reviewed by Aaron Margolis.
    Vickie B. Sullivan. Machiavelli, Hobbes, & the Formation of a Liberal Republicanism in England. Cambridge University Press, 2004. $75.00 (cloth). Reviewed by Ilya Winham.
    Jeffrey Stout. Democracy and Tradition. Princeton University Press, 2003. $35.00 (cloth). Reviewed by William Junker.
    Ajume H. Wingo. Veil Politics in Liberal Democratic States. Cambridge University Press, 2003. $55.00 (cloth) $22.00 (paper). Reviewed by Andrew Dilts.
    Steven Shavell. Foundations of Economic Analysis of Law. Belknap Press, 2004. $65.00 (cloth). Reviewed by .M. Bilgehan Ozturk.
    Mark C. Murphy (ed.). Alasdair MacIntyre. Cambridge University Press, 2003. $20.00 (paper). Reviewed by William Junker.


 
Conference Announcement: ASPLP
    Conference Announcement "Moral Pluralism and Universalism" 51st Annual Meeting American Society for Political and Legal Philosophy (ASPLP) Boston, MA (USA) December 29-30, 2004 The topic for this year's annual meeting of the American Society for Political and Legal Philosophy is "Moral Universalism and Particularism". The meeting will be held at the Marriot Hotel in Boston on 29-30 December 2004, in conjunction with the meetings of the American Philosophical Association. Program: Panel I/ APA Panel GX-2: Wednesday, December 29, 7:00-9:00 pm Chair: Melissa Williams (University of Toronto) Speaker: Barbara Herman (Philosophy, University of California-Los Angeles) Commentators: Frank Michelman (Law, Harvard University) Seyla Benhabib (Political Science, Yale University) Panel II/ APA Panel GXI-1: Thursday, December 30, 9:00-11:00 a.m. Chair: Henry Richardson (Philosophy, Georgetown University) Speaker: Benedict Kingsbury (Law, New York University) Commentators: Gopal Sreenivasan (Philosophy, University of Toronto) William Scheuerman (Political Science, University of Minnesota) Panel III/ APA Panel GXII-1: Thursday, December 30, 11:15 a.m.-1:15 p.m. Chair: Jacob Levy (Political Science, University of Chicago) Speaker: William Galston (Public Affairs, University of Maryland) Commentators: Daniel Weinstock (Philosophy, University of Montreal) Robin West (Law, Georgetown University) For more information, visit the ASPLP website at: http://www.political-theory.org/asplp.html


 
Call for Papers: Technology & the Chaing Face of Humanity
    Call for Papers May 29 - 30, 2005 University of Western Ontario, London, Ontario CANADIAN JACQUES MARITAIN ASSOCIATION Conference On: TECHNOLOGY AND THE CHANGING FACE OF HUMANITY As technology rapidly changes, so too must its relationship to humans. Of course the very idea of what it means to be human has changed throughout history. The objective of this conference is to explore issues such as what it means to be human as well as how technology influences our understanding of ourselves as persons. The ways in which humans understand themselves have had enormous influence on social structures, political, educational and so on. This conference will also consider the impact of technology on human rights. As new technologies appear, such as biometrics, it remains unclear as to their effects on the concept, for instance, of privacy rights. Many hold that new technologies enhance our security, but it remains unclear as to how this will affect our thinking about individuals and their rights? Finally, given that new technologies are ever more invasive in terms of the body, one of the great philosophical problems again rears its head: what does it mean to be human? Some suggested topics for papers: • Technology, genetic engineering and human rights • Technology and the changing views on privacy • Technology and the individual • Historical views on the relationship between technē and the nature of the person • Transhumanism, Posthumanism and Humanism Other relevant suggestions are welcome. Please send a 250 word abstract, by October 15, 2004, to either of the following addresses: Professor Chantal Beauvais St Paul University Ottawa, Ontario cbeauvais@ustpaul.ca Professor Richard Feist St Paul University Ottawa, Ontario rfeist@ustpaul.ca The University of Ottawa Press is interested in publishing the results of this conference.


 
Call for Papers: British Society for Ethical Theory
    CALL FOR PAPERS The BRITISH SOCIETY for ETHICAL THEORY 2005 CONFERENCE University of Leeds, UK 11-13 July 2005 Invited Speakers: Stephen Darwall (University of Michigan, Ann Arbor) John Skorupski (University of St. Andrews) Papers are invited for the annual conference of the British Society for Ethical Theory, to be held at the University of Leeds. The subject area is open within metaethics and normative ethics. Papers on topics in applied ethics or the history of ethics may also be considered provided they are also of wider theoretical interest. Papers, which should be unpublished at the time of submission, should be in English, no longer than 6500 words, readable in at most 45 minutes and in a form suitable for blind review. Please send an abstract and two copies of the paper, and supply your full name, address (electronic as well as postal if possible) and academic affiliation on a separate sheet. Those who submitted papers for our previous conferences - successfully or otherwise - are welcome to submit again (though not of course the same papers!). Please tell us if you are a postgraduate student: submissions from postgraduates are encouraged as our aim is that some such should be represented at the conference. Selected conference papers will be published in the journal "Ethical Theory and Moral Practice". Please make clear in any covering letter whether you want your paper considered for publication here as well as for the conference programme. The deadline for submissions is 10th December, 2004. Papers should be received by this date - i.e. it is NOT a postmark deadline. Papers and accompanying particulars should be sent to: Dr. Nafsika Athanassoulis, School of Philosophy, M. Sadler Building, University of Leeds, Leeds LS2 9JT or e-mailed to: N.Athanassoulis@leeds.ac.uk Further particulars regarding registration will be available in due course from Dr. Nafsika Athanassoulis (see above), to whom any inquiries should be addressed.


Monday, September 13, 2004
 
New from Law & Politics Book Review
    An Introduction to Rights, by William A. Edmundson. Cambridge: Cambridge University Press, 2004. 240pp. Cloth $55.00 / £40.00. ISBN 0-521-80398-5. Paper $22.00 / £15.99. ISBN 0-521-00870-0. Reviewed by Kenneth Einar Himma.
    Punishment, Places and perpetrators: Developments in Criminology and Criminal Justice Research by Gerben Bruinsma, Henk Elffers, and Jan de Keijser (Editors). Cullompton, UK: Willan Publishing, 2004. 336pp. Hardback. £45.00 / $69.95. ISBN 1-84392-060-3. Reviewed by Mathieu Deflem.
    TAKING SPACE SERIOUSLY: LAW, SPACE AND SOCIETY IN CONTEMPORARY ISRAEL by Issachar Rosen-Zvi . Aldershot, England and Burlington, VT: Ashgate, 2004. 224pp. Hardback. $89.95/£50.00. ISBN: 0-7546-2351-3. Reviewed by Allan E. Shapiro.
    VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE, by Bruce Ackerman and Ian Ayres. New Haven: Yale University Press, 2002. 303pp. Cloth $35.00. ISBN: 0-300-09262-8. Paper $18.00. ISBN: 030010149X. Reviewed by Stephen K. Medvic.
    MATTHEW J. PERRY: THE MAN, HIS TIMES, AND HIS LEGACY, by W. Lewis Burke and Belinda F. Gergel (Editors). Columbia, SC: University of South Carolina Press, 2004. 312pp. Hardcover $24.95. ISBN: 1-57003-534-2. Reviewed by Staci L. Beavers.
    FROM '9-11' TO THE 'IRAQ WAR 2003': INTERNATIONAL LAW IN AN AGE OF COMPLEXITY, by Dominic McGoldrick. Oxford and Portland, Oregon: Hart Publishing, 2004. 396pp. Paper $36.00 / £18.00. ISBN: 1-84113-496-1. Reviewed by Mark J. Harris.
    HIDING FROM HUMANITY: DISGUST, SHAME AND THE LAW, by Martha C. Nussbaum. Princeton, N.J.: Princeton University Press, 2004. 432pp. Cloth. $29.95 / £18.95. ISBN 0-691-09526-4. Reviewed by Stefanie A. Lindquist.


Sunday, September 12, 2004
 
Legal Theory Lexicon: Ex Ante/Ex Post If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction between looking-back and looking-fowards when assessing legal rules.)
The terminology comes from law and economics, and here is the basic idea:
  • The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism.
  • The ex ante perspective is forward looking. From the ex ante point of view, we ask questions like: What affect will this rule have on the future? Will decision of a case in this way produce good or bad consequences? Again, roughly speaking we associate the ex ante perspective with policy and welfare. The ex ante perspective in legal theory is loosely connected with consequentialist (or utilitarian or welfarist) approaches to moral theory. In general jurisprudence, we might associate the ex ante perspective with legal instrumentalism (or legal realism).
Of course, this very basic introduction to the distinction is oversimplified. For example, a fairness-based theory of torts might consider future consequences in assessing legal rules, and even utilitarian legal theories must use ex ante information when evaluating particular cases.
Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly.
If you are a first-year law student, you might make a habit of asking yourself questions like the following:
    Is the rule in the case I've just read, just or fair from an ex post perspective?
    Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?


Saturday, September 11, 2004
 
Download of the Week The Download of the Week is Property, Intellectual Property, and Free Riding by Mark A. Lemley. Lemley is The Man, and this is another in a series of stunningly good papers. Here is the abstract:
    Courts and scholars have increasingly assumed that intellectual property is a form of property, and have applied the economic insights of Harold Demsetz and other property theorists to condemn the use of intellectual property by others as "free riding." In this article, I argue that this represents a fundamental misapplication of the economic theory of property. The economics of property is concerned with internalizing negative externalities - harms that one person's use of land does to another's interest to it, as in the familiar tragedy of the commons. But the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market. From this core insight, I proceed to explain why free riding is desirable in intellectual property cases except in limited circumstances where curbing it is necessary to encourage creativity. I explain why economic theory demonstrates that too much protection is just as bad as not enough protection, and therefore why intellectual property law must search for balance, not free riders. Finally, I consider whether we would be better served by another metaphor than the misused notion of intellectual property as a form of tangible property.
Download it while its hot!


Friday, September 10, 2004
 
Friday Calendar
    UCLA Friday Series: Bernard Harcourt, University of Chicago Law School, "Raising Questions About Lawrence, Sex Wars, and the Criminal Law".
    University of Texas Law School Faculty Colloquium: John Fabian Witt, Visiting Professor, Columbia Law School, "Crystal Eastman and the Internationalist Beginnings of American Civil Liberties".
    University of Pennsylvania Institute for Law & Philosophy: Mini-Symposium on Kant on Law.
      Presenters:
        Professor Sharon Byrd Friedrich Schiller University School of Law Dr. Paul D. Guyer University of Pennsylvania Philosophy Department Professor Thomas Hill University of North Carolina Philosophy Department Professor Dr. Joachim Hruschka Friedrich Alexander University School of Law Institute for Criminal Law & Legal Philosophy Professor Ernest Weinrib University of Toronto Faculty of Law
      To Register, contact Patricia-Anne Meier at 215.573.7297, or at pmeier@law.upenn.edu. Participants are expected to attend all sessions.


Thursday, September 09, 2004
 
Ogletree I am probably the last legal academic to learn about the Ogletree/Balkin incident. Here's a quote (with proper attribution) from the story in the Boston Globe:
    A recent book by Harvard Law School professor Charles J. Ogletree Jr. includes six paragraphs lifted almost directly from another author's [Jack Balkin's] work, in what Ogletree said was a mistake made as the draft of his book passed through the hands of two assistants.
In some ways the most distressing aspect of the story is the way that it seems to take for granted the practice of publishing research assistant's work as one's own without explicit sharing of authorship credit--a practice that is, in my mind, quite dubious. (It is not clear from the story to what extent Ogletree actually relied on assistant's work, and I certainly don't know.) Here are some further comments from Donna Wentworth.


 
A Tournament of Virtue Long-time readers of Legal Theory Blog may recall Choi and Mitu Gulati’s essay, A Tournament for Judges, which prompted a post entitled A Tournament for Judges. Mad? Brilliant? Clever?. Florida State's law review has organized a symposium on Choi & Gulati's proposal, and my contribution, A Tournament of Virtue, is now available for download on SSRN. Here is the abstract:
    How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected on the basis of merit -we want judges who excellent. But Choi and Gulati have gotten something crucial terribly wrong: the selection of judges on the basis of measurable performance criteria would lead us away from true excellence. A tournament of judges would be won by judges who possess arbitrary luck and the vices of originality and mindless productivity; a tournament of virtue would be lost by those who possess the virtues of justice and wisdom. The judicial selection process should not be transformed into a game. I begin in Part II, "What is Judicial Excellence?," by tackling the tough problem that Choi and Gulati avoid - the explication of a theory of virtue for judges. The judicial virtues include: (1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom. In Part III, "Discerning Excellence," I discuss the question as to how we can tell whether candidates for judicial office are bad, which incompetent, and which are truly excellent. Three technniques for discerning judicial excellence are discussed: (1) screening for judicial vice; (2) detection of judges who possess practical wisdom; and (3) the recognition of judges whose record reveals a respect for the law. Part IV, "The Mismeasurement of Virtue," engages the idea of quantitative measures of judicial performance as a proxy for excellence. In this section, I argue that citations rates, productivity measures, and independence - as measured by Choi and Gulati - are poor measures of true judicial excellence. A real world tournament of judges, moreover, would be gamed, leading to the selection of vicious rather than virtuous judges. Finally, Part V, "Conclusion: The Redemption of Spectacular Failure." I argue that Choi and Gulati's idea is that rare and valuable thing - an idea that is both completely wrong and wonderfully illuminating.


 
Thursday Calendar
    New York University Colloquium of Law, Economics, and Politics: Christian List (London School of Economics) The Discursive Dilemma and Public Reason.
    Loyola Marymount University, Loyola Law School: John Nockleby, Professor of Law, Loyola Law School “Making Sense of Tort Reform”.
    Boston University School of Law Faculty Workshops: Keith Hylton/David Lyons joint presentation, "Two Approaches to Equality, with Implications for Grutter" (Hylton) and "Comments on Keith Hylton's 'Two Approaches ... '" (Lyons).
    Florida State University School of Law: David Brennen, Mercer University School of Law. Topic: "A Rationale for the Charitable Tax Exemption.


 
Chander & Sunder on the Public Doman Anupam Chander and Madhavi Sunder (University of California, Davis - School of Law and University of California, Davis - School of Law) have posted The Romance of the Public Domain (California Law Review, Vol. 92, 2004) on SSRN. Here is the abstract:
    Since Hardin, law and economics scholars have launched a crusade to expose the evil of the commons - the evil, that is, of not propertizing. Progressive legal scholars have responded in kind, exposing the perils of propertization. With the rise of the Information Age, the flashpoint debates about property have moved from land to information. The public domain is now the cause celebre among progressive intellectual property and cyberlaw scholars, who extol the public domain as necessary for sustaining innovation. But scholars obscure the distributional consequences of the commons. They presume a landscape where every person can reap the riches found in the commons. This is the romance of the commons - the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all. In practice, however, differing circumstances - including knowledge, wealth, power, access, and ability - render some better able than others to exploit a commons. We examine this romance through the lens of the global intellectual property regime in genetic resources and traditional knowledge. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) transformed a global public domain in information by propertizing the information resources of the West - from entertainment to technological advances - but leaving in the commons the information resources of the rest of the world, such as genetic resources and traditional knowledge. Just as the trope of the romantic author has served to bolster the property rights claims of the powerful, so too does the romance of the public domain. Resourcefully, the romantic public domain trope steps in exactly where the romantic author falters. Where genius cannot justify the property claims of corporations (because the knowledge pre-exists individual claims of authorship), the public domain can. We review real-world strategies for resolving the romance of the commons. Just as the tragedy of the commons justifies private property, recognizing the romance of the commons may justify forms of property uncommon in Western legal traditions.


Wednesday, September 08, 2004
 
Yu on the Mistrust of Intellectual Property Peter K. Yu (Michigan State University College of Law) has posted The Trust and Distrust of Intellectual Property Rights on SSRN. Here is the abstract:
    In the past, intellectual property issues were considered complex, obscure, and highly technical; they were only of interest and concern to intellectual property attorneys, legal scholars, technology developers, and rightsholders. Thanks to the Internet and new communications technologies, however, intellectual property has now begun to play a more significant role in society. In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the conference affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address issues concerning the recent expansion of intellectual property rights. Being vague and abstract, the documents also fail to provide concrete actions as to how the international community can improve the international intellectual property regime. This book chapter examines the international intellectual property regime as it relates to the development of an inclusive global information society. Part I provides an overview of the various intellectual property rights and justifications for protecting these rights. Part II explores the increased distrust of the intellectual property system, especially among less developed countries, human rights advocates, development specialists, and those on the unfortunate side of the digital divide. Part III delineates five prerequisites for the development of a fair, balanced, and robust international intellectual property regime: (1) thorough understanding, (2) balanced debate, (3) effective dialogue, (4) fair regime, and (5) global solidarity. Part IV concludes by critically examining the intellectual property-related portions of the WSIS Declaration of Principles and Plan of Action.


 
Wednesday Calendar
    Hofstra University School of Law: K.J. Greene, Thomas Jefferson School of Law "Bessie Smith, Courtney Love, and the Centrality of Black Cultural Production to Copyright Law: Does Intellectual Property Belong in the Debate over African-American Reparations?"


 
Geras on the Marxian idea of the End of the State Over at Normblog, Norman Geras has a series of posts that critique the Marxian idea of the end of the state. Begin here and continue here. Here's a taste from the first post:
    This series of posts is a critique of the Marxian idea of a future stateless utopia. It is an immanent critique. Were one to start from non-Marxist assumptions, detailed argument would scarcely be necessary. Non-Marxists just take it for granted that any organized modern society foreseeable from the present world must necessarily involve state-type institutions of governance. My aim here is to show that, even thinking from within the Marxist tradition, the idea of a stateless utopia is not sustainable, unless as a blind act of faith.


 
Book Announcement: A Cultural History of Causality Science, Murder Novels, and Systems of Thought
    A Cultural History of Causality Science, Murder Novels, and Systems of Thought Stephen Kern To read the introduction, please visit: http://pup.princeton.edu/titles/7853.html This pioneering work is the first to trace how our understanding of the causes of human behavior has changed radically over the course of European and American cultural history since 1830. Focusing on the act of murder, as documented vividly by more than a hundred novels including Crime and Punishment, An American Tragedy, The Trial, and Lolita, Stephen Kern devotes each chapter of A Cultural History of Causality to examining a specific causal factor or motive for murder--ancestry, childhood, language, sexuality, emotion, mind, society, and ideology. To read the entire book description, go to: http://pup.princeton.edu/titles/7853.html 0-691-11523-0 Cloth $29.95 US and L18.95 584 pages. 6 x 9.


Tuesday, September 07, 2004
 
Graber on Civil Liberties in Times of War Guest blogging over at Balkinization Mark Graber has a post entitled Civil Liberties in Wartime II . Here is a taste:
    Wars have the potential to unite as well as divide. While groups perceived as disloyal, often for racist reasons, suffer severe repression, those perceived as loyal to the cause often gain stature because of military conflicts. Many restrictions on persons of color in the north during the Civil War fell by the wayside as the need for African-American troops increased and stories of their bravery in battle disseminated. 18 year olds gained the right to vote as a direct consequence of Vietnam. Military needs trumped claims for status hierarchy.
If you missed it, here is Part I.


 
Lemley on Intellectual Property and Free Riding Mark A. Lemley (Stanford University - School of Law) has posted Property, Intellectual Property, and Free Riding on SSRN. Here is the abstract:
    Courts and scholars have increasingly assumed that intellectual property is a form of property, and have applied the economic insights of Harold Demsetz and other property theorists to condemn the use of intellectual property by others as "free riding." In this article, I argue that this represents a fundamental misapplication of the economic theory of property. The economics of property is concerned with internalizing negative externalities - harms that one person's use of land does to another's interest to it, as in the familiar tragedy of the commons. But the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market. From this core insight, I proceed to explain why free riding is desirable in intellectual property cases except in limited circumstances where curbing it is necessary to encourage creativity. I explain why economic theory demonstrates that too much protection is just as bad as not enough protection, and therefore why intellectual property law must search for balance, not free riders. Finally, I consider whether we would be better served by another metaphor than the misused notion of intellectual property as a form of tangible property.
Highly recommended!


 
Orbach on Unwelcome Benefits Barak Y. Orbach (New York University - School of Law) has posted Unwelcome Benefits on SSRN. Here is the abstract:
    Many low-income individuals refrain from using welfare benefits available for them, although their marginal utility of such benefits is presumably high. In fact, participation rates in most means-tested welfare programs in the United States are strikingly low. This Article studies the causes of forgone welfare benefits ("unwelcome benefits") and particularly the disparities in participation propensity among eligible individuals. It is shown that avoidable and unavoidable inefficiencies, states' distorted incentives, and social norms are the major sources of impediments to benefits among eligible individuals and that most of these impediments are embedded in or resulting from the legal mechanisms of the welfare system. Furthermore, due to the heterogeneity of eligible individuals, impediments to benefits have varying effects on participation and, therefore, allocative distortions are established when participation is too costly for some eligible individuals. The Article argues that such allocative distortions are sometimes sustained by welfare programs and may be mitigated through readily available legal and policy means. In addition, it is shown that some allocative distortions are consistent with common redistributive goals, while other distortions contradict such reasonable goals. Therefore, it is argued that it is more instructive to identify and evaluate specific allocative distortions, rather than to rely on general participation rates as performance indicators. Moreover, the Article argues that the standard estimations of participation rates utilize only formal eligibility criteria and neglect common discretionary eligibility criteria. As a result, such estimations tend to be downward biased and even less valuable for performance evaluations of welfare programs. The Article draws several conclusions regarding benefit levels, benefit framing, work requirements, time limits, and available means that could attain allocative improvements.


 
McAdams & Rasmusen on Norms in Law and Economics Richard H. McAdams and Eric Bennett Rasmusen (University of Illinois at Urbana-Champaign - College of Law and Indiana University Bloomington - Department of Business Economics & Public Policy) have posted Norms in Law and Economics on SSRN. Here is the abstract:
    Everyone realizes the importance of social norms as guides to behavior and substitutes or complements for law. Coming up with a paradigm for analyzing norms, however, has been surprisingly difficult, as has systematic empirical study. In this chapter of the Handbook of Law and Economics, edited by A. Mitchell Polinsky and Steven Shavell and forthcoming in 2005, we survey the topic.


Monday, September 06, 2004
 
Two By Sherwin Emily L. Sherwin (Cornell University - School of Law) has posted two papers on SSRN.
    Unjust Enrichment in Heartbreak Cases
      The principle of unjust enrichment is susceptible to varying interpretations, which reflect importantly different conceptions of how courts should decide cases and develop law. The consequences of different possible interpretations of the unjust enrichment principle are nicely illustrated by a group of cases involving restitution claims between former cohabitants. Claims of this kind are endorsed by the new Restatement (Third) of Restitution and Unjust Enrichment (now in preparation). In recognizing these claims, the Restatement adopts an "equitable" interpretation of unjust enrichment for this category of cases, one that licenses courts to disregard rules and engage in particularistic decision-making. This is surprising in light of the generally rule-oriented approach to restitution endorsed in the initial sections of the Restatement. It also carries with it a number of dangers, which are evident in the context of cohabitant claims.
    Reparations and Unjust Enrichment
      Despite an initial appearance of superior doctrinal fit, restitution is not an appropriate vehicle for reparations claims based on slavery and similar large-scale historical injustices. The justifying principle behind restitution - prevention of unjust enrichment - lacks the moral force necessary to resolve a controversial public dispute about moral rights and obligations among segments of society. At its core, a claim to restitution is an attempt to right a wrong not by alleviating the adverse consequences to oneself, but by diminishing the position of others. In other words, the notion of unjust enrichment is a comparative idea that draws on resentment and the desire for retaliation, rather than the desire to be made whole. Retaliatory impulses probably are inevitable in human affairs, and if so it may be wise to include some avenues for retaliation among the legal remedies available in private disputes. In a public controversy of considerable social significance, however, resentment and retaliation should not be accommodated by law.
    I'm a big fan of Sherwin's work!


 
Hoffman & O'Shea on Whether Law & Economics Can Be Practical & Principled David A. Hoffman and Michael O'Shea (Temple University - James E. Beasley School of Law and U.S. Court of Appeals - 8th Cicuit) have posted Can Law and Economics be Both Practical and Principled? (Alabama Law Review, Vol. 53, p. 335, 2002) on SSRN. Here is the abstract:
    This article describes important recent developments in normative law and economics, and the difficulties they create for the project of efficiency-based legal reform. After long proceeding without a well articulated moral justification for using economic decision procedures to choose legal rules, scholars have lately begun to devote serious attention to developing a philosophically attractive definition of well-being. At the same time, the empirical side of law and economics is also being enriched with an improved understanding of the complexities of individuals' decision-making behavior. That is where the problems begin. Scholars may have better, more plausible conceptions of well-being in hand, but it is not at all clear how to develop practical techniques for measuring and comparing individuals' gains and losses in well-being, so defined. And at the practical end, behavioral research suggests that the range of individual preferences that economic analysis must accommodate is broader and more complex than was previously assumed. We detail a variety of psychological studies that suggest that individuals often hold law-related preferences: direct preferences about the content and fairness of their legal system. These preferences defy market valuation, yet we argue that they cannot be ignored. Most intriguingly, studies suggest that in some cases people hold a preference that legal decisions should not be made on an economic basis. We describe such anti-utilitarian preferences, collecting evidence of their strength and permanence. In the final part of the article, we offer predictions about the future development of law and economics, in light of its growing theoretical sophistication and the evidence of law-related preferences. The most likely outcomes are: (1) scholars advocating various forms of paternalism, whether by excluding citizens from participation in the legal system or by discounting some types of individual preferences from consideration in choosing policies; or (2) a limited implementation of economic techniques, applying them strongly in some areas of the law but not in others. We discuss the relative strengths and failures of each proposed approach, and offer suggestions for future empirical work. We conclude by giving a tentative answer to the question that titles the article.


 
Kesavan & Paulson on the Interpretive Force of the Records of the Constitutional Convention Vasan Kesavan and Michael Stokes Paulsen (Independent and University of Minnesota Law School) have posted The Interpretive Force of the Constitution's Secret Drafting History (Georgetown Law Journal, Vol. 91, 2003) on SSRN. Here is the abstract:
    Originalism as a methodology of constitutional interpretation has, ironically, itself gone through a series of changes over the past quarter century. From original intent to original understanding to (most recently) original meaning, originalism has been an evolving theory. With these subtle changes in methodology have come significant changes in views of the status and weight to be accorded various extrinsic sources for aiding in understanding the Constitution's meaning. This Article addresses the proper interpretive force of the Constitution's secret drafting history - the Records of the Philadelphia Convention of 1787 - within a coherent theory of originalism. We argue that the Philadelphia debates, unavailable to those who actually ratified the Constitution and brought the dead words on parchment to constitutional life, are nonetheless highly relevant sources for understanding the Constitution - if (and only if) the relevant inquiry is the objective meaning that the document's words and phrases would have had, in context, to ordinary, reasonably well-informed speakers and readers of the English language at the time of the Constitution's adoption, rather than the subjective intentions or expectations of any particular body or group (like the Framers or the Ratifiers). A study of the interpretive force of the Philadelphia Records sheds much light on competing theories of originalism in constitutional interpretation - and vice versa.
I find this argument to be highly persuasive. Does anyone really disagree?


Sunday, September 05, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Idea of Private Law by Ernest J. Weinrib. Weinrib has one of the most original and interesting theories of private law and this is the place to go for a comprehensive statement of his theory. Here's the blurb from the Harvard University Press website:
    Private law is a familiar and pervasive phenomenon. It applies our deepest intuitions about personal responsibility and justice to the property we own and use, to the injuries we inflict or avoid, and to the contracts which we make or break. The Idea of Private Law offers a new way of understanding this phenomenon. Rejecting the functionalism popular among legal scholars, Ernest Weinrib advances the provocative idea that private law is an autonomous and noninstrumental moral practice, with its own structure and rationality. Weinrib draws on Kant and Aristotle to set out a formalist approach to private law that repudiates the identification of law with politics or economics. Weinrib argues that private law is to be understood not as a mechanism for promoting efficiency but as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. The book combines philosophical exposition and legal analysis, and pays special attention to issues of tort law. Private law, Weinrib tells us, embodies a special morality that links the doer and the sufferer of harm. Weinrib elucidates the standpoint internal to this morality, in opposition to functionalists, who view private law as an instrument in the service of external and independently justifiable goals. After establishing the inadequacy of functionalist approaches, Weinrib traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. Furthermore, the author shows how this formalism manifests itself in the leading doctrines of private law liability. Finally, he describes the public but nonpolitical role of the courts in articulating the special morality of private law.


 
Legal Theory Calendar
    Wednesday, September 8
      Hofstra University School of Law: K.J. Greene, Thomas Jefferson School of Law "Bessie Smith, Courtney Love, and the Centrality of Black Cultural Production to Copyright Law: Does Intellectual Property Belong in the Debate over African-American Reparations?"
    Thursday, September 9
      New York University Colloquium of Law, Economics, and Politics: Christian List (London School of Economics) The Discursive Dilemma and Public Reason.
      Loyola Marymount University, Loyola Law School: John Nockleby, Professor of Law, Loyola Law School “Making Sense of Tort Reform”.
      Boston University School of Law Faculty Workshops: Keith Hylton/David Lyons joint presentation, "Two Approaches to Equality, with Implications for Grutter" (Hylton) and "Comments on Keith Hylton's 'Two Approaches ... '" (Lyons).
      Florida State University School of Law: David Brennen, Mercer University School of Law. Topic: "A Rationale for the Charitable Tax Exemption.
    Friday, September 10
      UCLA Friday Series: Bernard Harcourt, University of Chicago Law School* "Raising Questions About Lawrence, Sex Wars, and the Criminal Law".
      University of Texas Law School Faculty Colloquium: John Fabian Witt, Visiting Professor, Columbia Law School, "Crystal Eastman and the Internationalist Beginnings of American Civil Liberties".
      University of Pennsylvania Institute for Law & Philosophy: Mini-Symposium on Kant on Law.
        Presenters:
          Professor Sharon Byrd Friedrich Schiller University School of Law Dr. Paul D. Guyer University of Pennsylvania Philosophy Department Professor Thomas Hill University of North Carolina Philosophy Department Professor Dr. Joachim Hruschka Friedrich Alexander University School of Law Institute for Criminal Law & Legal Philosophy Professor Ernest Weinrib University of Toronto Faculty of Law
        To Register, contact Patricia-Anne Meier at 215.573.7297, or at pmeier@law.upenn.edu. Participants are expected to attend all sessions.


 
Legal Theory Lexicon: The Coase Theorem
    The Legal Theory Lexicon series resumes this week. The Legal Theory Lexicon, an experimental Sunday feature of Legal Theory Blog is primarily aimed at law students, especially first year law students with an interest in legal theory. Each week I introduce a basic concept or idea in legal theory. This week the idea is the Coase theorem. Ronald Coase is a member of the law and economics faculties at the University of Chicago and a winner of the Nobel Prize in Economics. The idea that we call the Coase Theorem was advanced in a very famous paper:
      Coase, R.H. , The Problem of Social Cost, Journal of Law and Economics 3, 1-44 (1960).
    To understand the Coase theorem, we first need to introduce another idea, the externality. Roughly speaking, an economic externality is cost imposed by an activity that is not accrued by the person or firm who engages in the activity. That's a mouthful. Here's an example:
      The Reading Railroad has track that goes by Farmer Jones's farm. The locomotives cast off sparks that cause a fire that damages Farmer Jones's crop, imposing a cost on Jones of $100. That ocst is an externality.
    If the Reading Railroad owned the farm, then it would bear the cost, and there wouldn't be an externality. Before Coase, we thought that the existence of externalities justified some kind of government intervention. For example, we could create a liability rule that required the Reading Railroad to pay for the damage to his crops. Without a liability rule, the railroad wouldn't have any incentive to prevent the damage if there was a cost-effective means of doing so. Let's add a fact to our hypothetical:
      The Reading Railroad can purchase and install a 100% effective spark arrestor for $50.
    We want the railroad to install the spark arrestor for $50 to prevent $100 worth of damage. Before Coase, we said, "internalize the external diseconomies!" Really! That is, use tort law to transform the external cost imposed by the railroad into an internal cost.
    This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up.
    Coase said, "Let's assume zero transaction costs!" Okey dokey, what next! If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:
      Assuming zero transaction costs, it doesn't matter whether the law assigns the right to generate sparks to the railroad or the right to be free from sparks to the farmer. Why not? Let's work it out. There are two possibilities:
        If we assign the entitlement to the farmer, the railroad will pay $100 in damages to the farmer for vioalting the farmer's right to be spark free. The railroad will realize that it can save this $100 cost by investing $50 in a spark arrestor. So the railroad will buy the spark arrestor.
        If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal.
      That's it! It doesn't matter whether we assign the right to the farmer or the railroad. Either way, we get the efficient outcome.
    If you are a first year law student, the Coase theorem is a very powerful analytic tool for understanding the economics of tort law. When you study a new rule or problem, ask yourself, "How would this come out assuming zero transaction costs?" Then ask, "If we assume positive transaction costs, how does the problem change?"
    One word of warning, the zero-transaction-costs assumption is just an assumption. In the real world, there are always (or almost always) transaction costs. Nonetheless, in some situations, transactions costs are sufficiently low so that the efficient bargain can be struck. In other situations, this is not the case. That's where the action is!
    Links And for prior (and future installments) of the Legal Theory Lexicon, go here.


Saturday, September 04, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Ideals as Interests in Hobbes's Leviathan : The Power of Mind over Matter by S. A. Lloyd. To understand the normative commitments that underlies modern theories of law, you must understand Hobbes. The past two decades have witnessed a flowering of Hobbes scholarship. Traditional interpretations of Hobbes (which emphasize the first half of Leviathan gave way to high-tech versions (especially Greg Kavka and Jean Hampton) that utilized the tools of game theory and contemporary philosophy. Lloyd's Ideals as Interests marked a crucial turning point in the contemporary understanding of Hobbes, providing a remarkable and persuasive interpretation that integrated the long-neglected second half of Leviathan into a coherent account of Hobbes's political philosophy. Key to Lloyd's account is the idea of a "transcendent interest," the kind of interest for which humans are willing to lay down their lives. Here is the blurb from the Cambridge University Press Website:
    S. A. Lloyd proposes a radically new interpretation of Hobbes’s Leviathan that shows transcendent interests - interests that override the fear of death - to be crucial to both Hobbes’s analysis of social disorder and his proposed remedy to it. Most previous commentators in the analytic philosophical tradition have argued that Hobbes thought that credible threats of physical force could be sufficient to deter people from political insurrection.Professor Lloyd convincingly shows that because Hobbes took the transcendence of religious and moral interests seriously, he never believed that mere physical force could ensure social order. Lloyd’s interpretation demonstrates the ineliminability of that half of Leviathan devoted to religion, and attributes to Hobbes a much more plausible conception of human nature than the narrow psychological egoism traditionally attributed to Hobbes.
This is a truly important book, and essential reading for anyone who wants to understand early modern political philosophy in a rigorous way..


 
Download of the Week The Download of the Week is Reform(aliz)ing Copyright by Chris Sprigman. Here is the abstract:
    Reform(aliz)ing Copyright looks at the effect of the removal from the U.S. copyright laws of copyright formalities like registration, notice, and renewal. Beginning in 1976, the U.S. moved from a conditional copyright system that premised the existence and continuation of copyright on compliance with formalities, to an unconditional system, where copyright arises automatically when a work is fixed. Richard Epstein has aptly characterized these changes as copyright law . . . flipping over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not. That is a fundamental shift in any property rights regime, and one that, in the copyright context, represented a break with almost two centuries of practice. The advent of unconditional copyright has generated little comment in the academic literature - perhaps because the very term formalities signals that the former requirements were trifling, ministerial, or more bothersome than helpful. This paper argues that the disappearance of formalities was an important shift, and a harmful one. The paper recommends the re-introduction of formalities - albeit in a new form that accounts for changes in technology and complies with our international obligations under the Berne Convention, the principal international treaty governing copyright. This paper explores the important role that formalities played in our traditional copyright regime, particularly with respect to maintaining a balance between private incentives to produce creative works, and public access to those works. The paper then lays out a few possible approaches to re-introducing new-style formalities that comply with Berne.
Download it while its hot!


Friday, September 03, 2004
 
McGowan on Garver David McGowan (University of Minnesota Law School) has posted (So) What if it's All Just Rhetoric? on SSRN. Here is the abstract:
    This essay reviews Professor Eugene Garver's For The Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief. Partly through legal examples such as Brown v. Board of Education, Garver explores the role of ethos in persuasion and develops an ethics of practical reason, which he applies to judicial opinions. This review discusses the strengths and weaknesses of Garver's approach, and uses his argument to consider why legal academics are often hostile to the rhetorical dimensions of the law. The essay concludes that Garver makes a persuasive case for treating rhetorical choices as ethical choices properly subject to ethical criticism, but that such criticism will not alter judicial practice very much. It also concludes that legal academics should not be so hostile to rhetoric, especially because much of what we do counts as rhetoric. Nor should we be bothered by the fact (and it is a fact) that much of what counts in law rests on rhetorical strategies that go beyond logos. That fact implies that we do not have a comparative advantage in teaching and analyzing all aspects of law, but it does not imply that we have no such advantage. Rather than criticizing rhetoric, it would be better to acknowledge explicitly that law and rhetoric are inseparable, and that if we have a comparative advantage over other disciplines it lies largely in the logic of the law. We therefore should be content to be partisans of logic. To the extent we have a comparative advantage, we have limited influence over the direction of the law; to the extent we seek such influence, we are likely to lose our comparative advantage.


 
Williams on Kramer Norman Williams (Willamette University - College of Law) has posted The People's Constitution (Stanford Law Review, Vol. 57, October 2004) on SSRN. Here is the abstract:
    In his recent book, The People Themselves, Larry Kramer attacks the doctrine of judicial supremacy - the notion that the judiciary's understanding of the Constitution is supreme over that of Congress, the President, or the People. Instead, Kramer subscribes to a view called "popular constitutionalism," which posits that the People, not the courts, are the ultimate guardians and expositors of the Constitution. While Kramer does respond to modern theoretical claims in favor of judicial supremacy, Kramer's argument is first and foremost historical in nature, demonstrating that, until the Warren Court era of the 1960's, the nation was committed to popular constitutionalism. .In this review of his book, I assess both the historical claims in favor of popular constitutionalism and the normative conclusions that Kramer draws from American constitutional history. As a historical matter, I attempt to show that popular constitutionalism was not a static conception of constitutional government during the late-eighteenth and early nineteenth century; rather, during that time - when the practice of judicial review was instantiated - Americans' understanding of constitutionalism evolved in ways that rendered popular government and judicial review less antagonistic to one another than was originally supposed. Moreover, as a normative matter, I question the relevance of the historical ascendance of popular constitutionalism to the modern debate surrounding the proper role of the judiciary in our constitutional government. I posit that the nation may be better off with a system in which the judiciary occupies a privileged but nonsupreme interpretive position. James Madison came to endorse such a role for the judiciary late in his life, and modern considerations regarding the need for constitutional stability and interpretive excellence similarly caution against treating the judiciary as no better than any other political agent in implementing our constitutional commitments.


 
Sprigman on Reformalizing Copyright Chris Sprigman (Stanford University - School of Law) has posted Reform(aliz)ing Copyright (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
    Reform(aliz)ing Copyright looks at the effect of the removal from the U.S. copyright laws of copyright formalities like registration, notice, and renewal. Beginning in 1976, the U.S. moved from a conditional copyright system that premised the existence and continuation of copyright on compliance with formalities, to an unconditional system, where copyright arises automatically when a work is fixed. Richard Epstein has aptly characterized these changes as copyright law . . . flipping over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not. That is a fundamental shift in any property rights regime, and one that, in the copyright context, represented a break with almost two centuries of practice. The advent of unconditional copyright has generated little comment in the academic literature - perhaps because the very term formalities signals that the former requirements were trifling, ministerial, or more bothersome than helpful. This paper argues that the disappearance of formalities was an important shift, and a harmful one. The paper recommends the re-introduction of formalities - albeit in a new form that accounts for changes in technology and complies with our international obligations under the Berne Convention, the principal international treaty governing copyright. This paper explores the important role that formalities played in our traditional copyright regime, particularly with respect to maintaining a balance between private incentives to produce creative works, and public access to those works. The paper then lays out a few possible approaches to re-introducing new-style formalities that comply with Berne.


Thursday, September 02, 2004
 
Ayres & Baker on Reckless Sex Ian Ayres and Katharine K. Baker (Yale Law School and Illinois Institute of Technology) have posted A Separate Crime of Reckless Sex on SSRN. Here is the abstrat:
    This article attempts to make progress on both the problems of sexually transmitted disease and acquaintance rape by proposing a new crime of reckless sexual conduct. A defendant would be guilty of reckless sexual conduct if, in a first sexual encounter with another particular person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant with a preponderance of the evidence. As an empirical matter, first-encounter unprotected sex greatly increases the epidemiological force of sexually transmitted disease and a substantial proportion of acquaintance rape occurs in unprotected first encounters. The new law, by increasing condom use and the quality of communication in first sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.


 
Chorvat & McCabe on the Law & the Brain Terrence R. Chorvat and Kevin McCabe (George Mason University School of Law and George Mason University - Department of Economics) have posted The Brain and the Law (Philosophical Transactions of the Royal Society of London, Forthcoming) on SSRN. Here is the abstract:
    Much has been written about how law as an institution has developed to solve many problems that human societies face. Inherent in all of these explanations are models of how humans make decisions. This article discusses what current neuroscience research tells us about the mechanisms of human decision-making of particular relevance to law. This research indicates that humans are both more capable of solving many problems than standard economic models predict, but also limited in ways those models ignore. This article discusses how law is both shaped by our cognitive processes and also shapes them. The article considers some of the implications of this research for improving our understanding of how our current legal regimes operate and how the law can be structured to take advantage of our neural mechanisms to improve social welfare.


 
Conference Announcement: Bankruptcy of Religious Nonprofits
    Conference on Bankruptcy in the Religious NonProfit Context Friday, November 5, 2004, 9:00 am-4:30 pm (registration at 8:30 am) Seton Hall Law School, One Newark Center, Newark, NJ On Friday, November 5th, Seton Hall University School of Law will host a gathering of scholars and practitioners from the bankruptcy, nonprofit, and constitutional law sectors to explore the largely uncharted territory of church bankruptcy. In light of the recent Chapter 11 filing by the Archdiocese of Portland, the Conference will address a myriad of issues raised by this and related actions taken by religious groups in response to mass tort claims and judgments. Participants will explore such topics as the role of creditors and other stakeholders, civil and canonical definitions of property, the applicability of the First Amendment and the Religious Freedom Restoration Act, the significance of corporate form, the problem of fundraising, and the implications for churches as public charities. The Conference on Bankruptcy in the Religious NonProfit Context will feature the following speakers and moderators:
      Kathleen Boozang, Associate Dean and Professor, Seton Hall Law School Susan Boswell, Esq., Quarles & Brady Streich Lang, Tucson Evelyn Brody, Professor, Chicago-Kent Law School Nicholas Cafardi, Dean and Professor, Duquesne Law School Angela Carmella, Professor, Seton Hall Law School Mark Chopko, General Counsel, United States Conference of Catholic Bishops Honorable Joy Flowers Conti, United States District Judge, Western District, Pa. Melanie DiPietro, S.C., Esq., Buchanan Ingersoll, Pittsburgh Edward Gaffney, Professor, Valparaiso Law School Marci Hamilton, Paul R. Verkuil Chair in Public Law, Cardozo Law School Douglas Laycock, Alice McKean Young Regents Chair, Univ. of Texas Law School David Liberman, Esq., Los Angeles Stephen Lubben, Associate Professor, Seton Hall Law School Mark Sargent, Dean and Professor, Villanova Law School David Skeel, Professor, University of Pennsylvania Law School Catherine Wells, Professor, Boston College Law School (tentative)
    Seton Hall Law School is conveniently located in downtown Newark, one block from Penn Station-Newark (for travel via PATH and Amtrak trains), and a short ride from Newark Airport. For more information and to register for the conference, check the Seton Hall Law School webpage at http://law.shu.edu or contact Ramona Serratelli at serratra@shu.edu. Brochures will be available in late September.


Wednesday, September 01, 2004
 
Carlson on Hegel David Gray Carlson (Cardozo Law School) has posted Why Are There Four Hegelian Judgments? (Cardozo Journal of Law, Policy and Ethics, Vol. 2, Forthcoming) on SSRN. Here is the abstract:
    Hegel is the philosopher of threes. His entire system is triune: logic-nature-spirit. Within the logic is a triune structure: being, essence, notion. Within notion there is a triad: subject-object-idea. Within subjectivity, there is a triad: notion, judgment, syllogism. Yet when we examine Hegel's critique of judgment, there are four (not three): inherence-reflection-necessity-notion. This paper tries to explain why this is so. There is a disturbing element present at all times in Hegel's logic - what Slavoj Zizek named a silent fourth, which erupts and manifests itself in judgment. This paper refines and justifies Zizek's insight, arguing from the text of Hegel's monumental Science of Logic.


 
Rosenfeld on Constitutional Adjudciation in the United States & Europe Michel Rosenfeld (Cardozo Law School) has posted Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts (International Journal of Constitutional Law, Vol. 2, No. 2, October 2004). Here is the abstract:
    Constitutional adjudication is older and more entrenched in the United States than in Europe. Moreover, because in Europe such review is typically entrusted to a special court that engages to a large extent in abstract review whereas in the U.S. constitutional adjudication is decentralized and concrete, it would seem that European review should be more political than its American counterpart. Paradoxically, American constitutional adjudication has been attacked much more as being political. Moreover, the countermajoritarian problem, which plays a prominent role in the U.S. plays virtually no role in Europe. This paper explores these differences in terms of the contrasts between civil law and common law constitutional adjudication, differences in conception regarding the rule of law, the Rechtsstaat, l'Etat de Droit and the constitution as law, and regarding constitutional interpretation and originalism - important in the U.S. but not in Europe. The paper examines whether the different conceptions concerning legitimacy of constitutional adjudication and concerning the role of politics in judicial review are primarily due to structural or to contextual factors.


 
Conference Announcement: Supreme Court Preview
    The Institute of Bill of Rights Law, College of William & Mary School of Law is pleased to invite you to attend the 17th annual Supreme Court Preview conference at which leading legal scholars, lawyers, and Supreme Court journalists will discuss and analyze the Court's upcoming term. The dates of the conference are October 22 & 23, 2004. On Friday, from 3-5 p.m., a special briefing on human rights and national security law will be presented by Professor Linda A. Malone and General Charles Dunlap, Jr., co-directors of the newly established program in human rights and national security law at Marshall-Wythe Law School. The conference will begin on Friday night with a moot court argument of one of the Court?s most important pending cases, Roper v Simmons. In this case, the Court will rule on the constitutionality of the death penalty for those defendants under the age of 18 at the time of their crime. In 2003, the Missouri Supreme Court determined that juvenile executions violated the Eighth Amendment?s prohibition against cruel and unusual punishment under the ?evolving standards of decency? test. Two seasoned Supreme Court advocates will participate in the moot court. William Hurd, former Solicitor of Virginia, will represent the state of Missouri. John Blume of Cornell University will represent Christopher Simmons, who was 17 when he was arrested for the murder of Shirley Crook. We have assembled our own ?Court? of nine distinguished legal scholars and journalists to hear the argument and render a decision. Following the moot court argument, we will examine legal developments under George W. Bush, including administration efforts to redefine presidential power as part of the War on Terror, the president?s support of a constitutional amendment to ban gay marriage, Bush appointments to the federal judiciary, and the role of the Supreme Court in 2004 election politics. On Saturday, a series of panels will discuss the leading cases on the Court's docket for the 2004 term. These cases include constitutional challenges to the racial segregation of prisoners, to restrictions on the out-of-state purchase of wine, to medical marijuana legislation, and to a law mandating cattle producers to fund an advertising campaign they do not support. We will also consider whether the Supreme Court should look to laws and court decisions from foreign countries. For more Information go to : http://www.wm.edu/law/ibrl/supremecourt.shtml To Register go to: http://www.regonline.com/Checkin.asp?EventId=15228


 
Conference Announcement: Conflict of Laws & the University of Pennsylvania
    NOTICE OF CONFLICT OF LAWS CONFERENCE: The University of Pennsylvania Law Review invites you to participate in an academic conference, "Current Debates in the Conflict of Laws," at the University of Pennsylvania Law School in Philadelphia on Friday, November 12, 2004. 4.5 hours of CLE credit available. This conference will address recent developments in the conflict of laws, with panel presentations and discussion grouped according to three topics: Recognition and Enforcement of Same-Sex Marriage; Choice of Law and Jurisdiction on the Internet; and Application of the Constitution to Guantanamo Bay. Panel presentations and discussion will last approximately one and a half hours and will begin at 10:00, 1:30, and 3:30. The following scholars will be participating in the conference: Internet Panel (10 a.m.): Professor Paul Berman Professor Erin O'Hara Professor Joel Reidenberg Professor Alan Stein Professor Peter Swire Guantanamo Panel (1:30 p.m.): Professor Diane Amann Professor Seth Kreimer Professor Gerry Neuman Professor Kermit Roosevelt Same-Sex Marriage Panel (3:30 p.m.): Professor Herma Hill Kay Professor Andrew Koppelman Professor Linda Silberman Professor Tobias Wolff The papers presented will be published in Volume 153 of the University of Pennsylvania Law Review. We invite scholars, practitioners, and students who are not presenting papers but who are interested in the topics of the conference to attend. Those persons (and all persons with questions about logistics) should contact Ellen London (elondon@law.upenn.edu), who will be managing conference logistics. For further information please contact Professor Kermit Roosevelt (krooseve@law.upenn.edu). Kermit Roosevelt Assistant Professor University of Pennsylvania Law School 3400 Chestnut Street Philadelphia PA 19104