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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Tuesday, November 30, 2004
Tuesday Calendar
Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation" University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics. Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law? Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment". Monday, November 29, 2004
Ashcroft v. Raich
Background The issue in Raich focuses on medical use of cannabis, authorized by a voter initiative in the State of California but prohibited by federal law. In particular, the issue is whether the federal government may prohibit the possession of home-grown, intrastate, noncommercial cannabis, the use and possession of which has been authorized by state law. In a sense, this case has its roots in the New Deal era. In 1937, the United States Supreme Court began to expand Congress’s legislative power in the famous case of Jones & Laughlin Steel (the case involving the so-called “switch in time that saved nine”). A few years later, the Court decided Wickard v. Filburn, in which a federal limitation of wheat production was upheld as applied to a Mr. Filburn’s use of wheat on his own farm. The rationale of that case was that the general class of all wheat grown and consumed on farms on interstate commerce would be substantial, and therefore, Congress could regulate the wheat even though it was never sold in interstate commerce. In the 1950s through the 1980s, the conventional wisdom was that the Supreme Court had removed virtually all limits on Congress’s power under the Commerce Clause of the Constitution. So long as there was a “rational basis” or even a “conceivable rational basis” for Congress’s action, it would be within Congress’s legislative power. It was therefore a shock when the Supreme Court decided two cases in the 1990s that struck down federal statutes on the grounds that they were outside of Congress’s power to regulate interstate commerce. The first of these two cases was Lopez, in which the Supreme Court struck down the Gun Free School Zones Act, a federal statute that prohibited the possession of a gun within 1000 feet of a school. The second case was Morrison, in which the Court struck down the Violence Against Women Act. These cases limited Wickard v. Filburn to regulations that involve “economic activity,” a category that the Court has never precisely defined but which seems to apply to actions that are part of a process that leads to sale or barter. The lower courts have recently begun to apply Lopez and Morrison in “as applied” challenges to other federal statutes. Examples include: (1) a home-assembled machine gun, (2) home-made child pornography, and (3) home-grown state authorized medical cannabis. Ashcroft v. Raich gives the Supreme Court an opportunity to clarify the meaning of Lopez and Morrison and potentially, an opportunity to further limit Congress’s power or to modify its two “new federalism” decisions in a way that would make them toothless. Raich is potentially a very important case, but it also could be decided on very narrow grounds. The Justices Enter The chamber is hushed as the Justices begin to enter, beginning with Justice O’Connor. Justice Stevens waits a few moments and then speaks, announcing that the Court will take motions of admission to the Supreme Court Bar. This quaint ritual is completed with dispatch, and Justice Stevens calls Paul Clement, the Acting Solicitor General of the United States to the podium. Caveat The following notes on the oral argument are only notes. In some cases, I was unable to transcribe a question or answer. In almost every case, my notes use some phrases from the actual exchange, but also substitute my own words to convey the “sense” of what I heard as I understood it. Petitioner’s Argument Paul Clement has the demeanor of a quiet and thoughtful man—an appellate lawyer’s appellate lawyer, if you catch my drift. He begins with by arguing that “Congress has comprehensively regulated drugs through the Controlled Substances Act.” No sooner does he begin, than Justice O’Connor interrupts:
Clement: But those decisions preserved this Court’s Darby and Wickard decisions, which validate the statute here. O’Connor: But this substance was not in national market or in any intrastate market, unlike the activity at issue in those cases. Clement: It would be optimistic to believe that there will be no diversion to the national market. O’Connor: But shouldn’t we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes? Clement: Marijuana is a fungible product and there is a national market in this drug. O’Connor: Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market? Clement: That would be irrelevant. O’Connor: But what would happen in my hypo? Clement: This Court in a series of cases has made it clear that it is not the conduct of the individual plaintiff, but the class of activities that Congress has chosen to regulate that is relevant.
Clement: Since the Lottery Case, it has been clear that Congress has the authority to ban a contraband from interstate commerce. Scalia: But that is not the same rationale as Wickard. You rely on Wickard to prohibit marijuana in order to reduce demand for the interstate market. Clement: The reality is that there is a 10.5 billion dollar market for marijuana. Scalia: Suppose hypothetically, there was no diversion Clement: The problems are parallel.
Clement: This is economic activity, but not commercial activity. It is like the production of wheat.
O’Connor: Wasn’t the wheat in Filburn in the interstate market? Not all of it was consumed on the farm. Clement: The wheat was consumed on the farm. O’Connor: But wasn’t other wheat from this same farm used in interstate commerce? Clement: The disposition of the particular wheat at issue in Filburn was not certain, but the case involved wheat consumed by the farmer as his own bread. Justice Kennedy: Is this a harder or easier case than Filburn, given that the substance here is illegal? Clement: Easier, because Congress can prohibit contraband. Marijuana is fungible, and Congress could conclude that any island of lawful possession is a threat to regulation of the contraband. Moreover, the legitimate use has been made available to patients in the form of a THC pill, Marinol. Ginsburg: But on this record, isn’t their evidence that the pill does not work. Would the patients have any defense if they were criminally prosecuted? Clement: The Oakland Cannabis Buyers Club case, as we read it and some members of this Court may disagree, rejects a medical necessity defense. But there is a deeper flaw in Respondent’s position: there is a mismatch between the California law and the argument that this conduct does not involve interstate commerce. California provides a defense even to those who purchase marijuana from the illegal interstate market.
Clement: Yes, under the commerce clause, there can be no as applied challenge.
Clement: In Morrison, the activity was noneconomic. O’Connor: Isn’t this activity noneconomic, because the marijuana here was grown for personal use? Clement: But Wickard v. Filburn is indistinguishable. Justice Kennedy: If we rule for the plaintiff’s wouldn’t the price for marijuana go down? Clement: Yes, the price would go down. Congress is trying to increase the price for marijuana by creating a black market. Marinal provides a safe version of THC, and that provides a hook for the application of Congress’s Commerce Clause power. The statute trumps the individual physician’s determination that raw marijuana is medically necessary. The federal regulations do not allow doctors to make such a determination. Stevens: Can we ignore a district court finding that marijuana is medically beneficial? Clement: It depends. If the context is review of the scheduling decision, then the medical evidence would be relevant. The FDA has no inherent hostility to THC; it has rescheduled marinol from the schedule 2 to schedule 3. Ginsburg: Have there been any challenges to marijuana’s position on schedule one? Clement: Yes. Efforts have been made. The Institute of Medicine Study made it clear that smoked raw marijuna has no future as a legitimate phramaceutical. Rather, we would take the raw material and synthesize the medically beneficial ingredients. This is because smoking marijuana is harmful. Souter: If the Respondent’s argument suceeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can’t we take into account the health benefits of medical marijuana? Clement: It would not be a good idea for the courts to second guess Congress.
Kennedy: But isn’t simple possession part of the market. Barnett: It depends on the facts. Posession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not. Kennedy: But isn’t marijuana fungible? Barnett: Fungibility is at issue in this case, but the fungibility of marijuana does not speak to the question whether possession of marijuana for personal medical use is economic activity.
Barnett: That might be essential to a broader regularoty scheme, but in this case the medical use of marijuana is isolated by state law from the interstate market. Scalia: What is the basis for narrowing the category of activity in that way? Barnett: The State of California has narrowed the class of activity by authorizing only medical cannabis. Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.
Barnett: The federal government can only reach noneconomic activity if the state’s authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market. Breyer: What if a state were to authorize use of cocaine or heroin or genetically modified tomatoes that Congress believed were harmful to health? Barnett: Congress could reach such noneconomic activity if it were essential to a broader regulatory scheme. Breyer: So you are asking us to compare the state and federal schemes and to determine whether the it is essential to the federal scheme in light of what the state scheme does. That sounds difficult for this court to do. The government is arguing in this case that large numbers of consumers will use medical marijuana, and hence that lower prices will undermine the federal scheme. We won’t know what effect the state law will have on the federal scheme. Won’t that be a mess? Barnett: There are two points in your question. (1) whether numbers of medical users will be large, and (2) whether it will be possible to identify medical users and hence distinguish them from recreational users. On the first point, the numbers are very small. The government quotes the National Organization for Marijuana Laws for their figure of 100,000. We quote the official government figures showing the number is insignificant. These people are taken out of the illegal market by the California law. Breyer: But isn’t the effect for Congress to decide? Barnett: There is a threshold issue. If this is noneconomic activity, then it can only regulated if essential to a broader regulatory scheme. Kennedy: But isn’t this just like baking bread or washing dishes, which our cases show is an economic activity? Barnett: Those can be economic activities if they are part of a commercial enterprise, but the government’s position leads to the conclusion that washing dishes at home is economic. Souter: Assume there are 100,000 users, under the California statute, can’t they buy it on the street? The statute does not differentiate between possession of homegrown and street-bought marijuana. Barnett: But medical users have every incentive not buy marijuana on the street. They can be prosecuted for buying it on the street. Souter: Couldn’t it be the case that millions of medical users would be buying marijuana on the street?
Barnett: There are two differen answers to this question. First, assuming this Court does not create an “essential to a broader regulatory scheme” exception to Lopez and Morrison, then your ruling would reach noneconomic medical use in states that have not authorized medical cannabis use. Second, if you do recognize the “essential to a broader regulatory scheme” exception, then the question is whether the lack of authorization makes a difference. California, for example, will issue ID cards that will help to isolate medical use from the interstate market. Ginsburg: But there are no ID cards now. Barnett: But the Court should trust the state to take those measures necessary so that the state authorization serves its intended purpose.
Barnett: That’s why the “essential to a broader regulatory scheme” exception must be interpreted narrowly—so that it is consistent with Morrison.
Barnett: But here, unlike Lopez where the gun was from interestate commerce, the marijuana is wholly intrastate.
Barnett: But here there is no interestate connection. Scalia: That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm. Barnett: If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought. Scalia: Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly. Barnett: The phrase “home consumed” in context meant consumed on the farm, by feeding to livestock, etc. Breyer: But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it “exerted substantial economic effect”. Barnett: At that time, the Court was using the narrower definition of “commerce” that Justice Thomas has argued for. What we would call it today is “economic activity.” Filburn was engaged in economic action as part of a commercial farming enterprise. Scalia: So why isn’t this economic activity? Barnett: In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market. Stevens: What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices? Barnett: Can I choose trivial reduction of price? Stevens: If you reduce demand, then you will reduce prices? Wouldn’t it increase prices? Barnett: No, if you reduce demand, you reduce price. Stevens: Are you sure? Barnett: Yes. Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana? Barnett: There could be. Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy. Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic. Souter: But isn’t the argument that it is economic activity if it has a sizeable effect on the market? Barnett: No. The effect on the market is only relevant if it is market activity. Souter: But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case? Barnett: The point is that economic activity and personal liberty are two different categories. Souter: That is not a very realistic premise. Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic. Breyer: If marijuana is medically helpful, can’t your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn’t I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum? RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people. Kennedy: Are prescriptions limited to cases where marijuana is life saving? Barnett: It is limited to a list of illnesses. Ginsburg: I have procedural question. You’ve asked for an injunction against criminal prosecutions. Isn’t there an equitable principle against enjoining criminal prosecutions? Barnett: We’ve also asked for an injunction against the seizure of marijuana, which has occurred in this case. Such seizures put the supply at jeopordy.
Impressions Both oralists did very well. And both sides have weaknesses in their theories. Here are some specific points: Monday Calendar
NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification. Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge. UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts". Book Announcement: Covenants without Swords
Sunday, November 28, 2004
Legal Theory Calendar
NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification. Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge. UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".
Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation" University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics. Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law? Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".
Oxford Centre for Criminology: James L. Nolan, Problem-Solving Courts: a Comparative Study of a Legal Transplant. Oxford Institute of European and Comparative Law in conjunction with Comparative Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law. Oxford Public International Law Discussion Group in conjunction with Financial Law Discussion Group: Lee Buchheit, The Role of the Official Sector in Sovereign Debt Workouts: the Case of Iraq. NYU Legal History: William Novak, Visiting Professor, NYU School of Law. Oxford Comparative Law Discussion Group in conjunction with Private and Commercial Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
Yale Legal Theory Workshop: Elizabeth Warren, Harvard (Law) "The Over-Consumption Myth and the Other Tales of Economics, Law and Morality". Stanford Law & Economics: Steven Shavell (Harvard Law School), “The Law as a Remedy for the Problem of Contractual Holdup ”. University of Michigan, Law & Economics: Oren Bar-Gill, Society of Fellows, Harvard, Pricing Legal Options: A Behavioral Perspective. Boston University, School of Law: Bob Bone. George Mason University, School of Law: Dan Lin, GMU Department of Economics Ph.D. Candidate, Asset Specificity and the Organization of the Television Industry. Oxford Public International Law Discussion Group: Sir Michael Wood KCMG, The Security Council and the Use of Force (though not Iraq 2003). Princeton Public Law Colloquium: Michael Willrich, Brandeis University, Socializing Justice: The Urban Origins of Legal Progressivism.
UCLA School of Law: David A. Sklansky, UCLA School OF law & Stephen C. Yeazell, UCLA School of Law, "Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa" Legal Theory Lexicon: Fact and Value
Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
Conclusion: Therefore, the United States ought to withdraw from Iraq.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy. Conclusion: Therefore, the United States ought to withdraw from Iraq. G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition. The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line. Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law! If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth. Conclusion Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way! Saturday, November 27, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends A New World Order by Anne-Marie Slaughter. Here is a brief description:
Download of the Week This week, the Download of the Week is Moral Positivism by Roger Crisp. Here is a taste from early in the paper:
Friday, November 26, 2004
Law & Politics Book Review
RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, by Randy E. Barnett. Princeton, New Jersey: Princeton University Press, 2003. 360pp. Cloth. $32.50 / £21.50. ISBN: 0-691-11585-0. Reviewed by Ronald Kahn. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? by James L. Gibson. New York: Russell Sage Foundation, 2004. 467pp. Hardcover. $47.50. ISBN: 0-87154-312-5. Reviewed by Ayo Ogundele. PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM, by Geoffrey R. Stone. New York: W. W. Norton & Company, 2004. 800 pp. Cloth $35.00. ISBN: 0-393-05880-8. Reviewed by Brian Pinaire. DEVIANT KNOWLEDGE: CRIMINOLOGY, POLITICS AND POLICY, by Reece Walters. Portland, OR: Willan Publishing, 2003. 256pp. Paperback. £18.99 / US $29.50. ISBN 1-84392-029-8. Hardback. £40.00 / US $59.95. ISBN 1-84392-030-1. Reviewed by Lisa L. Miller. THE MOTHER OF ALL CRIMES: HUMAN RIGHTS, CRIMINALIZATION AND THE CHILD BORN ALIVE, by Emma Cave. Burlington, VT: Ashgate Publishing Co., 2004. 172pp. Hardback. $84.95 / £47.50 ISBN 0-7546-2366-1. Reviewed by Rhonda L. Callaway. LIMITING ARBITRARY POWER: THE VAGUENESS DOCTRINE IN CANADIAN CONSTITUTIONAL LAW, by Marc Ribeiro. Vancouver: UBC Press, 2004. 256pp. Hardcover. $85.00. ISBN: 0-7748-1050-5. Paper $29.95. ISBN: 0-7748-1051-3. Reviewed by Matthew Hennigar. KNOWLEDGE POWER: INTELLECTUAL PROPERTY, INFORMATION & PRIVACY, by Renée Marlin-Bennett. Boulder and London: Lynne Rienner Publishers, 2004. 274 pp. Paperback. £16.50 / $23.50. ISBN: 1-58826-281-2. Hardcover. £45.95 / $59.95. ISBN:1-58826-256-1. Reviewed by Debora Halbert. JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW, by Simon Halliday. Oxford and Portland, Oregon: Hart Publishing, 2004. 188 pp. Hardcover $50.00 / £25.00 ISBN: 1-84113-265-9. Reviewed by Eli Paul Mazur. Thursday, November 25, 2004
Call for Papers: Emotions, Others, and the Self
Conference Announcement: Intentionality, Deliberation and Autonomy
Wednesday, November 24, 2004
Wednesday Calendar
Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib. Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure" Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Tuesday, November 23, 2004
Rodriguez on Straw Polls Daniel B. Rodriguez (University of San Diego School of Law) has posted Straw Polls (Journal of Contemporary Legal Issues, Vol. 12, p. 791, 2002) on SSRN. Here is the abstract:
Farmer & Pecorino on Settlement Failure Amy Farmer and Paul Pecorino (University of Arkansas at Fayetteville - Department of Economics and University of Alabama - Department of Economics, Finance and Legal Studies) have posted Preferences, Information and Settlement Failure on SSRN. Here is the abstract:
Monday, November 22, 2004
Monday Calendar
New York University, School of Law: Lewis Kornhauser, Contingency and Control: A Theory of Contracts. UCLA School of Law: Diane Amann, UCLA School of Law, "Abu Ghraib". Bell on Just Compensation Abraham Bell (Bar Ilan University - Faculty of Law) has posted Not Just Compensation on SSRN. Here is the abstract:
Drassinower on Originality in Canada Abraham Drassinower (University of Toronto - Faculty of Law) has posted Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law (University of Ottawa Law & Technology Journal, Vol. 105, No. 1 & 2, 2003-2004) on SSRN. Here is the abstract:
Event Announcement: Engemann at Stanford's CIS
Sunday, November 21, 2004
Legal Theory Calendar
New York University, School of Law: Lewis Kornhauser, Contingency and Control: A Theory of Contracts. UCLA School of Law: Diane Amann, UCLA School of Law, "Abu Ghraib".
Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib. Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure" Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia. Legal Theory Lexicon: Conduct Rules and Decision Rules The target audience of Legal Theory Lexicon is law students, especially first year law students, with an interest in legal theory. Here is a very short entry to provide a very brief break from studying:
Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content. But how can we excuse ignorance of the law without altering the conduct rule?One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law. Saturday, November 20, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Taking the Constitution Away from the Courts by Mark Tushnet. Here's a brief description:
Download of the Week The Download of the Week is Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law? by Matthew Adler. Here is the abstract:
Friday, November 19, 2004
Friday Calendar
University of Texas, School of Law: Mark Graber, Department of Government & Politics, University of Maryland, "Legal, Strategic or Legal Strategy: Deciding to Decide During the Civil War and Reconstruction". New School for Social Research: New School for Social Research, Martin Hollis Memorial Conference. MIT Philosophy: Peter Railton, University of Michigan, "Is there hope for a theory of objective aesthetic value?" Hamdani & Klement on Class Defense Assaf Hamdani and Alon Klement (Faculty of Law, Bar Ilan University and Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Class Defense (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
Thursday, November 18, 2004
Thursday Calendar
UCLA Legal Theory Workshop: Tommie Shelby, John L. Loeb Associate Professor of the Social Sciences, Harvard University, "We Who Are Dark: The Philosophical Foundations of Black Solidarity. Chapter 3: "Black Politics After Black Power". Boston University, School of Law: Rusty Park, "Procedural Evolution in Business Arbitration: Three Case Studies". Florida State University, School of Law: J.B. Ruhl, Florida State University College of Law, "The Law and Policy of Ecosystem Services." Fordham University School of Law: Matthew Adler, Professor of Law, University of Pennsylvania Law School, "Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?". I read this paper recently. Highly recommended.. Oxford Society for Law and Religion, Law and Religion Seminars: John McInespie, Justice William Brennan And The US Supreme Court. An Introduction. Oxford Public International Law Discussion Group: Dr Nico Krisch, Global Administrative Law: Accountability, Participation and Judicial Review in Global Governance. UCLA Civil Justice Workshop: Robert L. Rabin, Stanford Law School, "The September 11th Victim Compensation Fund: A Circumscribed Response or an Auspicous Model". University of Michigan, Law & Economics: Oren Gazal, Humphrey Fellow, Michigan Screening, Plea Bargains and the Innocent Problem and Plea Bargains Only for the Guilty. UC Berkeley, GALA: Dan M. Kahan, Elizabeth K. Dollard Professor of Law, Yale Law School "Laws of Cultural Cognition and the Cultural Cognition of Law". Lipshaw on Illusions of Intention Jeffrey M. Lipshaw (Indiana University School of Law - Indianapolis) has posted The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention on SSRN. Here is the abstract:
Koelman on P2P Kamiel J. Koelman (Free University of Amsterdam - Computer/Law Institute) has posted P2P Music Distribution: a Burden or a Blessing? on SSRN. Here is the abstract:
Wednesday, November 17, 2004
Conference Announcement:
Rodriguez and Weingast on the Positive Political Theory of Legislative History Daniel B. Rodriguez and Barry R. Weingast (University of San Diego School of Law and Stanford University - The Hoover Institution on War, Revolution and Peace) have posted The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation (University of Pennsylvania Law Review, Vol. 151, 2003) on SSRN. Here is the abstract:
Hasen on the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns Richard L. Hasen (Loyola Law School (Los Angeles)) has posted Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns (Southern California Law Review, Vol. 78, No. 4, May 2005) on SSRN. Here is the abstract:
Lee on Race & Deadly Force Cynthia Lee (The George Washington University Law School) has posted 'But I Thought He Had a Gun' - Race and Police Use of Deadly Force (Hastings Race and Poverty Law Journal, 2004) on SSRN. Here is the abstract:
Ayres, Rowat & Zakariya on Two Stage Voting Rules Ian Ayres , Colin Rowat and Nasser Zakariya (Yale Law School , University of Birmingham - Department of Economics and Harvard University) have posted Optimal Two Stage Committee Voting Rules on SSRN. Here is the abstract:
White on the Social Minimum Stuart White has a new entry titled Social Minimum on the Stanford Encyclopaedia of Philosophy. Here is a taste:
Wednesday Calendar
Northwestern University, Law & Economics: Henry Hansmann, Yale University, "Legal Entities, Asset Partitioning, and the Evolution of Organizations". Tuesday, November 16, 2004
Call for Papers: Election Law in the 2004 Election
Fon, Parisi, & Depoorter on Litigation, Path Dependence, and Legal Change Vincy Fon, Francesco Parisi, and Ben Depoorter (George Washington University - Department of Economics , George Mason University School of Law , Ghent University School of Law - Center for Advanced Studies in Law and Economics and George Mason University - School of Law) have posted Litigation, Judicial Path-Dependence, and Legal Change (European Journal of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
Tuesday Calendar
Oxford Legal Theory Workshop: Grégoire Webber, Legal Lawlessness and the Rule of Law. University of Chicago, Law & Economics: Brigitte Madrian, Boettner Associate Professor in Financial Gerontology; Associate Professor of Business and Public Policy, The Wharton School, University of Pennsylvania, Employer Stock Holdings in 401(k) Plans: Have Employees Learned the Lessons of Enron?. Oxford Intellectual Property Research Centre, Dr Christine Macleod, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: No Patent System, No Industrial Revolution?. Vanderbilt University, School of Law: Greg Mitchell, Florida State University, "Rational and Irrational Impulses". Monday, November 15, 2004
Haque on Lawrence v. Texas Adil Ahmad Haque (Yale University - Law School) has posted Lawrence v. Texas and the Limits of the Criminal Law on SSRN. Here is the abstract:
Call for Papers: Electronic Voting
Book Announcement: Ford on Racial Culture
Monday Calendar
Oxford Moral Philosophy Seminar: Oswald Hanfling, Open University. Lewis & Clark School of Law: Ruth Okediji (University of Minnesota School of Law), Welfare and Digital Copyright In International Perspective: From Market Failure To Compulsory Licensing. NYU School of Law: Nate Persily (Visiting from Pennsylvania), Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law. UCLA School of Law: Guy Scoffoni, UCLA School of Law, "The Transatlantic Misunderstanding: Current Debates on Free Speech and Freedom of Religion". Princeton University, Political Philosophy Colloquium: Gianfrancesco Zanetti, University of Modena, The Red and the White: Notes on the Role of Emotions in Vico's Scienza Nuova. University of Chicago, Political Theory Workshop: Gopal Balakrishnan, University of Chicago, The Life and Legacy of Carl Schmitt. Sunday, November 14, 2004
Legal Theory Calendar
Oxford Moral Philosophy Seminar: Oswald Hanfling, Open University. Lewis & Clark School of Law: Ruth Okediji (University of Minnesota School of Law), Welfare and Digital Copyright In International Perspective: From Market Failure To Compulsory Licensing. NYU School of Law: Nate Persily (Visiting from Pennsylvania), Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law. UCLA School of Law: Guy Scoffoni, UCLA School of Law, "The Transatlantic Misunderstanding: Current Debates on Free Speech and Freedom of Religion". Princeton University, Political Philosophy Colloquium: Gianfrancesco Zanetti, University of Modena, The Red and the White: Notes on the Role of Emotions in Vico's Scienza Nuova. University of Chicago, Political Theory Workshop: Gopal Balakrishnan, University of Chicago, The Life and Legacy of Carl Schmitt.
Oxford Legal Theory Workshop: Grégoire Webber, Legal Lawlessness and the Rule of Law. University of Chicago, Law & Economics: Brigitte Madrian, Boettner Associate Professor in Financial Gerontology; Associate Professor of Business and Public Policy, The Wharton School, University of Pennsylvania, Employer Stock Holdings in 401(k) Plans: Have Employees Learned the Lessons of Enron?. Oxford Intellectual Property Research Centre, Dr Christine Macleod, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: No Patent System, No Industrial Revolution?. Vanderbilt University, School of Law: Greg Mitchell, Florida State University, "Rational and Irrational Impulses".
Northwestern University, Law & Economics: Henry Hansmann, Yale University, "Legal Entities, Asset Partitioning, and the Evolution of Organizations".
UCLA Legal Theory Workshop: Tommie Shelby, John L. Loeb Associate Professor of the Social Sciences, Harvard University, "We Who Are Dark: The Philosophical Foundations of Black Solidarity. Chapter 3: "Black Politics After Black Power". Boston University, School of Law: Rusty Park, "Procedural Evolution in Business Arbitration: Three Case Studies". Florida State University, School of Law: J.B. Ruhl, Florida State University College of Law, "The Law and Policy of Ecosystem Services." Fordham University School of Law: Matthew Adler, Professor of Law, University of Pennsylvania Law School, "Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?". I read this paper recently. Highly recommended.. Oxford Society for Law and Religion, Law and Religion Seminars: John McInespie, Justice William Brennan And The US Supreme Court. An Introduction. Oxford Public International Law Discussion Group: Dr Nico Krisch, Global Administrative Law: Accountability, Participation and Judicial Review in Global Governance. UCLA Civil Justice Workshop: Robert L. Rabin, Stanford Law School, "The September 11th Victim Compensation Fund: A Circumscribed Response or an Auspicous Model". University of Michigan, Law & Economics: Oren Gazal, Humphrey Fellow, Michigan Screening, Plea Bargains and the Innocent Problem and Plea Bargains Only for the Guilty. UC Berkeley, GALA: Dan M. Kahan, Elizabeth K. Dollard Professor of Law, Yale Law School "Laws of Cultural Cognition and the Cultural Cognition of Law".
University of Texas, School of Law: Mark Graber, Department of Government & Politics, University of Maryland, "Legal, Strategic or Legal Strategy: Deciding to Decide During the Civil War and Reconstruction". New School for Social Research: New School for Social Research, Martin Hollis Memorial Conference. MIT Philosophy: Peter Railton, University of Michigan, "Is there hope for a theory of objective aesthetic value?" Legal Theory Lexicon: Consent
The basic legal structure is easy to grant. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid? This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. The Ontology of Consent What is consent? We all know about paradigm cases of consent and its absence. Consent is clear present when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent. In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.
Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her. Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent. Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action. The Moral and Legal Force of Consent Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?
Why Does Consent Have Moral and Legal Force Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.
Utility and Consent Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant. But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarains, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action. Virtue and Consent Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.
Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid. Coercion Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well. One problem with coercion is distinguishing threats from offerss and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat. Warnings are neither offers nor threats. Warnings predict consequences outside the control of the party seeking consent. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer. Incapacity Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car. Saturday, November 13, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Logic of Consent: The Diversity and Deceptiveness of Consent As a Defense to Criminal Conduct by Peter Westen. Here is brief description:
Download of the Week The Download of the Week is The ALI Principles and Agreements: Seeking a Balance Between Status and Contract by Brian Bix (University of Minnesota Law School). Here is the abstract:
Friday, November 12, 2004
Friday Calendar
UCLA School of Law, Jay Koehler, Univiversity of Texas School of Business, "Selection Bias at Trial". Austrailian National University: Conference on Intellectual Property & Farmers Rights. Georgetown Law & Economics: Ken Dau-Schmidt, Indiana University School of Law, "Gender and the Legal Profession: The Michigan Alumni Data Set 1967-2000". Loyola Marymount, Loyola Law School: James Gathii, Professor of Law, Albany Law School, “The Sanctity of Sovereign Loan Contracts and Its Origins in Enforcement Litigation”. Oxford Globalisation & Sustainable Development Law Group: Dr. Duncan French, International Law on Sustainable Development: The Foundations. Camp on Digital Identity L. Jean Camp (Harvard University - John F. Kennedy School of Government) has posted Identity in Digital Government on SSRN. Here is the abstract:
Krawiec and Zeiler on Disclosure Duties Kimberly D. Krawiec and Kathryn Zeiler (University of North Carolina School of Law and Georgetown University - Law Center) have posted Common Law Disclosure Duties and The Sin of Omission: Testing the Meta-theories on SSRN. Here is the abstract:
Gey & Rossi on Measuring Judicial Performance Steven G. Gey and Jim Rossi (Florida State University - College of Law and Florida State University - College of Law) have posted Empirical Measures of Judicial Performance: An Introduction to the Symposium on SSRN. Here is the abstract:
Thursday, November 11, 2004
Hunter & Lastowka on Copyright Policy Dan Hunter (University of Pennsylvania - The Wharton School) & Greg Lastowka (Rutgers, The State University of New Jersey - School of Law-Camden) have posted Amateur-to-Amateur on SSRN. Here is the abstract:
Mitchell on Libertarian Paternalism Gregory Mitchell (Florida State University College of Law and Vanderbilt University - School of Law) has posted Libertarian Paternalism Is an Oxymoron (Northwestern University Law Review, Vol. 99, No. 3, 2005) on SSRN. Here is the abstract:
Cockfield on Law & Technology Theory Arthur J. Cockfield (Queen's University (Canada) - Faculty of Law) has posted Towards a Law and Technology Theory (Manitoba Law Journal, Vol. 30, p. 383, 2004) on SSRN. Here is the abstract:
Thursday Calendar
Yale Legal Theory Workshop: John Hanson, Harvard (Law). Boston University, School of Law: Jay Wexler, "Environmental Law and the Judicial Role". George Mason, School of Law: Michelle Boardman, GMU School of Law, Insurance Clause as Statute. Oxford Society for Law and Religion: Dr Lucy Vickers, Law and Religion Seminars: 'Religious Discrimination in the Workplace: tolerating the intolerant? Oxford Financial Law Discussion Group: David Doble, Adventures In Risk Finance: A Contemporary Overview. University of Michigan, Law & Economics: Henry Hansmann, Yale, Legal Entities, Asset Partitioning, and the Evolution of Organizations. University of Pennsylvania, Tax Policy Workshop: Larry Zelenak (Duke), The Sometimes-Taxation of the Returns to Risk-Bearing Under a Progressive Income Tax. Wednesday, November 10, 2004
Conference Announcement: Rational Legitimization of Political Norms
Call for Papers: FEAST
Netanel on Copyright & the First Amendment Neil W. Netanel (University of California, Los Angeles - School of Law) has posted Copyright and the First Amendment; What Edlred Misses - and Portends (Neil Weinstock Netanel, COPYRIGHT AND FREE SPEECH: COMPARATIVE AND INTERNATIONAL ANALYSES, Oxford University Press, 2005) on SSRN. Here is the abstract:
Talisse on Liberal Legitimacy Robert Talisse (Vanderbilt) has posted Pluralism and Liberal Legitimacy. Here's a taste:
Duncan on Dignity Craig Duncan (Glasgow) has posted Craig Duncan, Democratic Liberalism: The Politics of Dignity. Here's a taste:
Samaha on Litigant Sensitivity & the First Amendment Adam Samaha (University of Chicago - Law School) has posted Litigant Sensitivity in First Amendment Law (Northwestern University Law Review, Vol. 98, p. 1291, 2004) on SSRN. Here is the abstract:
Yoo on Foreign Legal Precedents John C. Yoo (University of California at Berkeley School of Law) has posted Peeking Abroad?: The Supreme Court's Use of Foreign Precedents in Constitutional Cases (University of Hawaii Law Review, 2004) on SSRN. Here is the abstract:
Thursday Calendar
Yale Legal Theory Workshop: John Hanson, Harvard (Law). Boston University, School of Law: Jay Wexler, "Environmental Law and the Judicial Role". George Mason, School of Law: Michelle Boardman, GMU School of Law, Insurance Clause as Statute. Oxford Society for Law and Religion: Dr Lucy Vickers, Law and Religion Seminars: 'Religious Discrimination in the Workplace: tolerating the intolerant? Oxford Financial Law Discussion Group: David Doble, Adventures In Risk Finance: A Contemporary Overview. University of Michigan, Law & Economics: Henry Hansmann, Yale, Legal Entities, Asset Partitioning, and the Evolution of Organizations. Tuesday, November 09, 2004
Filibustering a Supreme Court Nominee Michael Rappaport has an interesting post, arguing that it is politically infeasible for Democrats to filibuster a Supreme Court nominee. Here's a taste:
Gardner & Rossi on the New State Constitutionalism James A. Gardner and Jim Rossi (State University of New York - University at Buffalo School of Law and Florida State University - College of Law) have posted The New Frontier of State Constitutionalism (William & Mary Law Review, 2005) on SSRN. Here is the abstract:
Jones on the Evolution of Irrationality Owen D. Jones (Vanderbilt University - School of Law & Department of Biological Sciences) has posted The Evolution of Irrationality (Jurimetrics, Vol 41, p. 289, 2001) on SSRN. Here is the abstract:
Tuesday Calendar
University of Texas, School of Law: Richard Markovits, UT School of Law, "Liberalism and the Common Law of Torts". Oxford Intellectual Property Research Centre: Dr Anne Wyatt, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Evaluating IPO Incentives and Prospects Using Prospectus and IP Data. Vanderbilt Law: Nancy King, "Tracking Waivers of the Right to Review" Curry & Mongrain's Economic Analysis of "Morality Laws" Philip A Curry and Steeve Mongrain (Simon Fraser University and Simon Fraser University - Department of Economics) have psoted What You Don't See Can't Hurt You: An Economic Analysis of Morality Laws on SSRN. Here is the abstract:
Monday, November 08, 2004
Lash on the Ninth Amendment: Updated with Comments by Lash Kurt T. Lash (Loyola Marymount University, Loyola Law School) has posted new versions of two important papers:
Kurt Lash writes:
Monday Calendar
UCLA School of Law: Fred Tung, Loyola Law School, “Explaining the Internal Affairs Doctrine”. New York University, School of Law: William Novak (Visiting from Chicago). Oxford Centre for Socio-Legal Studies: Laure-Hélène Piron, Socio-Legal Approaches to Law and Development: Donors’ Approaches to Justice Sector Reform. Bix on Status & Contract in Family Law Brian Bix (University of Minnesota Law School) has posted The ALI Principles and Agreements: Seeking a Balance Between Status and Contract. Here is the abstract:
Vermeule on Interpretation Adrian Vermeule (University of Chicago Law School) has posted Three Strategies of Interpretation (San Diego Law Review, 2005) on SSRN. Here is the abstract:
I criticize the maximizing style of interpretation and praise its two competitors. Both the optimizing and satisficing perspectives help to justify some controversial principles of statutory and constitutional interpretation, such as the rule barring resort to legislative history where statutes have a plain meaning, and clause-bound (as opposed to broadly holistic or "intratextualist") interpretation of statutes and the Constitution. Although maximizing interpretation is untenable, neither the optimizing approach nor the satisficing approach is globally best; each is an attractive decision-procedure in some contexts. Where the interpretive stakes are either very low or very high, satisficing is reasonable (whether or not rational in some stronger sense), while optimizing is best suited to medium-stakes decisions. Legal Theory Calendar
UCLA School of Law: Fred Tung, Loyola Law School, “Explaining the Internal Affairs Doctrine”. New York University, School of Law: William Novak (Visiting from Chicago). Oxford Centre for Socio-Legal Studies: Laure-Hélène Piron, Socio-Legal Approaches to Law and Development: Donors’ Approaches to Justice Sector Reform.
University of Texas, School of Law: Richard Markovits, UT School of Law, "Liberalism and the Common Law of Torts". Oxford Intellectual Property Research Centre: Dr Anne Wyatt, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Evaluating IPO Incentives and Prospects Using Prospectus and IP Data. Vanderbilt Law: Nancy King, "Tracking Waivers of the Right to Review"
NYU Legal History: Dalia Tsuk, George Washington University Law School.
Yale Legal Theory Workshop: John Hanson, Harvard (Law). Boston University, School of Law: Jay Wexler, "Environmental Law and the Judicial Role". George Mason, School of Law: Michelle Boardman, GMU School of Law, Insurance Clause as Statute. Oxford Society for Law and Religion: Dr Lucy Vickers, Law and Religion Seminars: 'Religious Discrimination in the Workplace: tolerating the intolerant? Oxford Financial Law Discussion Group: David Doble, Adventures In Risk Finance: A Contemporary Overview. University of Michigan, Law & Economics: Henry Hansmann, Yale, Legal Entities, Asset Partitioning, and the Evolution of Organizations.
UCLA School of Law, Jay Koehler, Univiversity of Texas School of Business, "Selection Bias at Trial". Austrailian National University: Conference on Intellectual Property & Farmers Rights. Georgetown Law & Economics: Ken Dau-Schmidt, Indiana University School of Law, "Gender and the Legal Profession: The Michigan Alumni Data Set 1967-2000". Loyola Marymount, Loyola Law School: James Gathii, Professor of Law, Albany Law School, “The Sanctity of Sovereign Loan Contracts and Its Origins in Enforcement Litigation”. Oxford Globalisation & Sustainable Development Law Group: Dr. Duncan French, International Law on Sustainable Development: The Foundations. Sunday, November 07, 2004
Legal Theory Lexicon: Second Best
The Intuitive Idea The intuition behind the idea of the second best is simple. We would like to have the best possible legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"? Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to that now. The Second Best in Economics Let's move from the intuitive idea of the second best to the origins of that idea in economic theory. The very general idea of the economic theory of the second best can be expressed as follows:
One or two additional points are necessary to complete the technical story.
Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase. Third, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values. Although technically, the definition of second best need not be limited to that special situation, that is the interesting result, and the use of the theory of the second best in economics may be limited to the special case. Outside of economics, however, the phrase "second best" tends to be used in a much looser sense. The Second Best and Nonideal Theory The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice. Can you make that very abstract description more concrete? Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory. Pinpointing the Constrained Variable The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:
The Feasible Choice Set Another way of approaching the general problem revealed by the theory of the second best is via the notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set. The Bottom Line The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best! Bibliography & Links Saturday, November 06, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Idea of Private Law by Ernest J. Weinrib. If you are relatively new to legal theory, you may not have read Weinrib, who offers a distinctive and intriguing theory of private law. Weinrib is really a must if you are interested in contemporary tort theory. Here is a description:
Download of the Week The Download of the Week is Preference, Deliberation and Satisfaction by Philip N. Pettit, Princeton University - Department of Politics. Here is the abstract:
Book Announcement: Knowledge, Nature, and the Good
Book Announcement: Liberal Languages
New on Law & Politics Book Review
HOW TO PLEASE THE COURT: A MOOT COURT HANDBOOK, by Paul I. Weizer (ed.). New York: Peter Lang, 2004. 200pp. Paperback. $19.95. ISBN: 0-8204-6949-1. Reviewed by Clifford Angell Bates, Jr. DEFINING AMERICA THROUGH IMMIGRATION POLICY, by Bill Ong Hing. Philadelphia: Temple University Press, 2004. 336pp. Cloth. $71.50. ISBN: 1592132324. Paper. $27.95. ISBN: 1592132332. THE "HUDDLED MASSES" MYTH: IMMIGRATION AND CIVIL RIGHTS, by Kevin R. Johnson. Philadelphia: Temple University Press, 2003. 264pp. Cloth. $59.50. ISBN 1-59213-205-7. Paper. $19.95. ISBN 1-59213-206-5. Reviewed by Audrey Kobayashi. ROUGH JUSTICE: LYNCHING AND AMERICAN SOCIETY, 1874-1947, by Michael J. Pfeifer. Chicago: University of Illinois Press, 2004. 272pp. Cloth. $35.00. ISBN 0-252-02917-8. Reviewed by Dr. Christopher Malone. THE VINSON COURT: JUSTICES, RULINGS AND LEGACY, by Michal R. Belknap. Santa Barbara, CA: ABC-CLIO, 2004. 333pp. Cloth. $65.00. ISBN: 1-57607-21-0. Reviewed by Caryl Lynn Segal. SUCCESS WITHOUT VICTORY: LOST LEGAL BATTLES AND THE LONG ROAD TO JUSTICE IN AMERICA, by Jules Lobel. New York: New York University Press, 2003. 336pp. Hardcover. $34.00. ISBN: 0814751121. Reviewed by Charles R. Epp. RIGHTS, DEMOCRACY, AND FULFILLMENT IN THE ERA OF IDENTITY POLITICS: PRINCIPLED COMPROMISES IN A COMPROMISED WORLD, by David Ingram. Rowman & Littlefield, 2004. 280pp. Paper. $27.95. ISBN: 0742533484. Cloth. $75.00. ISBN:0742533476. Reviewed by Catherine Dauvergne. LEGAL REFORM IN KOREA, by Tom Ginsburg (ed). Abingdon, U.K. & New York , NY: Routledge Curzon, 2004. 248 pp. Hardback. £60.00 / $115.00. ISBN 0-415-34100-0. Reviewed by David Gurnham. UN-MAKING LAW: THE CONSERVATIVE CAMPAIGN TO ROLL BACK THE COMMON LAW, by Jay M. Feinman. Boston, MA: Beacon Press, 2004. 240pp. Hardcover. $26.00. ISBN 0-8070-4426-1. Reviewed by Daniel Levin. GENDER, CRIME AND CRIMINAL JUSTICE (2nd ed), by Sandra Walklate. Willan Publishing, 2004. 240pp. Paperback. £17.99 / $29.50. ISBN 1-84392-068-9. Reviewed by Mary W. Atwell. Friday, November 05, 2004
Friday Calendar
UCLA School of Law: Kathleen Clark, Washington University School of Law, "The Meaning of Corruption in Campaign Finance Law". University of Texas, School of Law: Richard Markovits, "Predatory Investments," "Predatory Systems Rivalry and Predatory Aftermarket Conduct". Thursday, November 04, 2004
Gardner on Lacey on Hart John Gardner has an important review of Nicola Lacey's new biography of H.L.A. Hart. Here is a taste:
As well as this personal rapport with her subject, Lacey brings to the book her redoutable professional competence as a legal theorist. She has a subtle and lively appreciation of Hart’s intellectual aims and achievements, a world away from the sterile rendition found in many student textbooks. Thursday Calendar
Boston University, School of Law: Ward Farnsworth, "Signatures of Ideology: The Case of the Supreme Court's Criminal Docket". Florida State University, School of Law: Kathyrn Zeiler, Georgetown University Law Center, "Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories." Loyola Marymount, Loyola Law School: Sharon Dolovich, Professor of Law, UCLA Law School, “Punishment and Profit: The Case Against Private Prisons”. Oxford Public International Law Discussion Group: Salem Chalabi, Prosecuting Saddam Hussein: The Iraqi Special Tribunal for War Crimes. University of Michigan Law & Economics: Daryl Levinson, New York, Empire-Building Government in Constitutional Law. Call for Papers: Hume & His Critics
Wednesday, November 03, 2004
Book Announcement: Innovation and Its Discontents
Wednesday Calendar
Oxford Centre for Criminology: Pat O’Malley, The Uncertain Promise of Risk. Tuesday, November 02, 2004
Tuesday Calendar
University of Chicago Law & Economics: Alex Stein, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, Overenforcement. Oxford Intellectual Property Research Centre: Andreas Panagopoulos, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Effects of Firm Size in Reaching an Out-of-court Settlement. Monday, November 01, 2004
Monday Calendar
Oxford Seminar on Moral Philosophy: Michael Zimmerman (North Carolina at Greensboro), 'Is moral obligation objective or subjective?' NYU Law: Albert Yoon (Visiting from Northwestern). The End of the Rainbow: Understanding Turnover among Federal Judges. Oxford Centre for Socio-Legal Studies: Ambreena Manjim Socio-Legal Approaches to Law and Development: The Rebirth of Law and Development: A Feminist Critique. Oxford Faculty of Law: Michele Graziadei, 2004 Clarendon Lectures : On playing tennis with the net up: fiduciary obligations, contractual relations and property. UCLA School of Law: David Callahan, Founder, Demos Public Policy Center, “The Cheating Culture: Why More Americans Are Doing Wrong to Get Ahead”. Pettit on Preferences Philip N. Pettit, Princeton University - Department of Politics, has posted Preference, Deliberation and Satisfaction on SSRN. Here is the abstract:
Law on Strategic Judicial Law Making David S. Law (University of San Diego School of Law) has posted Strategic Judicial Lawmaking: An Empirical Investigation of Ideology and Publication on the U.S. Court of Appeals for the Ninth Circuit (University of Cincinnati Law Review, Vol. 73, June 2005) on SSRN. Here is the abstract:
Welcome to the Blogosphere . . . . . . to White Collar Crime Prof Blog edited by Peter J. Henning (Wayne State) & Ellen S. Podgor (Georgia State). Conference Announcement: Logic and Law at King's College, London
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