Legal Theory Blog |
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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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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Monday, January 31, 2005
Monday Calendar
NYU Law School: Rachel Barkow, Federalism and the Politics of Sentencing. UCLA School of Law: Leti Volpp, UCLA School of Law, "Engendering Culture". New from Law & Politics Book Review
AMERICA'S COLONY: THE POLITICAL AND CULTURAL CONFLICT BETWEEN THE UNITED STATES AND PUERTO RICO, by Pedro A. Malavet. New York: New York University Press, 2004. 352pp. Cloth. $40.00. ISBN: 0814756808. Reviewed by Javier A. Couso. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: AN EXERCISE IN LAW, POLITICS, AND DIPLOMACY, by Rachel Kerr. Oxford: Oxford University Press, 2004. 248pp. Hardback. £53.00 / $98.00. ISBN: 0-19-926305-1. Reviewed by Karol Soltan. NORDIC EQUALITY AT A CROSSROADS. FEMINIST LEGAL STUDIES COPING WITH DIFFERENCE, by Eva-Maria Svensson, Anu Pylkkänen, Johanna Niemi-Kiesiläinen (eds). Burlington: Ashgate, 2004. 262pp. Hardback. $99.95 /£55.00. ISBN: 0754624080. Reviwed by Adelaide H. Villmoare. CONSTITUTIONAL FAILURE: CARL SCHMITT IN WEIMAR, by Ellen Kennedy. Durham, NC: Duke University Press, 2004. 272pp. Paper. $22.95. ISBN: 0-8223-3243-4. Cloth. $79.95. ISBN: 0-8223-3230-2. Reviewed by John E. Finn. GAY MALE PORNOGRAPHY: AN ISSUE OF SEX DISCRIMINATION, by Christopher N. Kendall. Vancouver: UBC Press, 2004. 296pp. Hardcover. $85.00. ISBN: 0-7748-1076-9. Paperback. $29.95. ISBN: 0-7748-1077-7. Reviewed by Claire Rasmussen. SALT OF THE EARTH, CONSCIENCE OF THE COURT: THE STORY OF JUSTICE WILEY B. RUTLEDGE, by John M. Ferren. Chapel Hill, NC: The University of North Carolina Press. 2004. 592pp. Cloth. $39.95. ISBN: 0-8078-2866-1. Reviewed by Artemus Ward. THE PURSUIT OF FAIRNESS: A HISTORY OF AFFIRMATIVE ACTION, by Terry H. Anderson. Oxford and New York: Oxford University Press, 2004. 336pp. Cloth. $35.00 / £21.50. ISBN: 0-19-515764-8. Reviewed by Timothy J. O'Neill. Legal Theory Calendar
NYU Law School: Rachel Barkow, Federalism and the Politics of Sentencing. UCLA School of Law: Leti Volpp, UCLA School of Law, "Engendering Culture".
Oxford Intellectual Property Research Centre: Dr. Alfredo Ilardi, Intellectual Property in the New Millennium: Origin and Development of International Protection of Intellectual Property. Lewis & Clark Law School: Geoffrey Manne, Hot Docs and Cold Economics.
Oxford Human Rights Discussion Group: Jens Scherpe, Recent Developments in European Family Law: Cohabitation and Gay Marriage. Trinity College, Oxford: Laurence Oatesm, Life, Death, and the Law Cardozo Law School, Jacob Burns Legal Theory Workshop: Robert Post, Yale Law School, The Structure of Academic Freedom. NYU Legal History: Samuel Issacharoff, Visiting Professor, NYU School of Law. Vanderbilt Law & Economics Workshop: Margaret Blair.
Florida State University, College of Law: Gregory Keating, University of Southern California, Abusing "Duty". Fordham University School of Law: Deborah W. Denno, Professor of Law, Fordham, "The Legal Link Between Genetics and Crime: Vile or Viable?". Oxford Public International Law Discussion Group: Dr Andrew Hurrell, International Law and International Relations: The State of the Art and the State of the World. Stanford Law & Economics: Michael L. Katz (School of Business, University of California, Berkeley) & Howard A. Shelanski (School of Law, University of California, Berkeley), "Moving Targets: Merger Policy in the Face of Technological Change" University of Michigan, Cyberlaw & Economics: Paul Resnick, Michigan School of Information, Calculating Error Rates for Filtering Software & Does Pornography-Blocking Software Block Access to Health Information on the Internet. University of Texas School of Law Constitutional & Legal Theory Colloquium: Larry Sager, UT, "Equal Liberty" Vanderbilt Legal Theory Workshop: Ann-Marie Slaughter, Woodrow Wilson School, Princeton University.
UCLA School of Law: Adam Winkler, UCLA School of Law, "Fatal in Theory and Strict in Fact: Debunking the Myth of Strict Scrutiny". Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law:
Prof. Irene Dankleman (The Netherlands), Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : The Challenge of Gender: Towards a Common Future. Vanderbilty University School of Law, Charney Distinguished Lecture Series: Anne-Marie Slaughter, Woodrow Wilson School, Princeton University, "Rethinking the War on Terror". Sunday, January 30, 2005
Legal Theory Lexicon: Rules, Standards, and Principles
We can slice and dice legal norms in various ways. In this post, we will investigate the idea that legal norms can be sorted into three general classes: rules, standards, and principles. Let's stipulate to the following definitions to get the discussion off the ground: Rules Although the phrase "legal rule" can be used in a broad sense, to refer to all legal norms, whether they be case in the form of a bright-line rule, a standard that in the form of a balancing test, or even an abstract principle, there is also a narrower sense of "rule" that distinguishes rules from standards and principles. Rules themselves vary--let's use hard and soft to refer to the poles of a continuum. A rule is harder if both the conditions for its application and the consequences that follow are defined by bright-line distinctions that admit of easy application. The rule that disqualifies persons who are not 35 years of age is quite hard or rigid. Rules become softer as they criterion for the application and/or the consequences to which they lead become fuzzier. If the constitution had limited the presidency to "adults," then there could have been cases in which the question whether a particular candidate was unclear. Twelve year olds are clearly not adults but twenty-five year olds clearly are. In between, the necessity of drawing a somewhat arbitrary line makes the "adult" rule relatively softer than the "35-year old" rule. Standards Standards are less constraining than even "soft" rules. Whereas a rule defines a triggering condition and a consequence, a standard may define a set of relevant considerations and options. One familiar example of a standard is provided by the fairness component of the International Shoe test for personal jurisdiction. That test requires a court to find that a state's assertion of personal jurisdiction violates the Due Process Clause on the basis of a give factor balancing test, which refers to the defendant's interest, the plaintiff's interest, the interest of the forum, judicial efficiency and economy, and substantive policy concerns. Like rules, standards themselves vary in their capacity to guide and constrain the decision-making process. Some standards give the decision maker substantial guidance, by specifying relatively specific and concrete factors the decision maker should consider and the relative weight or importance of those factors. Other standards are much more open ended, requiring consideration of factors that are general and abstract. Standards that refer to "all the circumstances," "the interests of justice," or "equitable considerations" are particularly soft. Standards that require the evaluation of "cost to the defendant" or "serious invasions of privacy" are relatively harder, providing greater constraint and guidance. By way of illustration, consider eligibility for the presidency once again. A rule based approach might limit eligibility to persons of a certain age or to "adults." A standard might specify that the only persons who are "sufficiently mature" may occupy the office of President. This standard is relatively open-ended, and it might disqualify some sixty-year olds from the presidency but allow some 20 year olds to serve. Principles Principles are quite different from both rules and standards--at least on the basis of the definitions that we are using. Both rules and standards provide a framework that is, in theory, sufficient for resolving a particular issue in a legal dispute. But as we are using the term, a "principle" only provides guidance for the interpretation or application of a rule or standard. Principles by themselves do not resolve legal issues. This sense of principle is illustrated by Ronald Dworkin's example of the principle that no one should be allowed to profit from their own wrong, drawn from the case of Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case, the statute of wills would have allowed a murderer to inherit from his victim, but the New York Court of Appeals concluded that the statute should be given an equitable interpretation in light of the common law principle against wrong doers profiting from their wrongs. This principle is not a rule: the law does permit wrong doers to profit from their wrongs in a variety of circumstances. Rather, this general and abstract principle provided guidance in the interpretation and construction of a rule--in Riggs, the rule provided by the statute of wills. (This example is drawn from Ronald Dworkin's famous essay Hard Cases.) The Pros and Cons of Rules, Standards, and Principles What are the pros and cons of rules, standards, and principles? When you have identified a candidate legal norm, when should you argue that the norm should be formulated as a rule, a standard, or a principle? In his famous 1985 article, Pierre Schlag provided this example:
References
Ronald Dworkin, Hard Cases in Taking Rights Seriously (1977). Henry Hart & Albert Sacks, The Legal Process (unpublished manuscript tent. ed. 1958). Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685 (1976). Saturday, January 29, 2005
Download of the Week The Download of the Week is Can We Be Legal Positivists Without Being Constitutional Positivists? by Abner Greene. Here is the abstract:
Legal Theory Bookworm The Legal Theory Bookworm recommends Natural Law and Practical Rationality by Mark Murphy. Here is a description:
Friday, January 28, 2005
Lipkin on Federalism Robert Justin Lipkin has posted Federalism as Balance on SSRN. Here is the abstract:
Friday Calendar
Oxford, Said Business School (in conjunction with EU Research and Training Network and the Oxford Review of Economic Policy): Corporate Governance Conference. Oxford Globalisation & Sustainable Development Law Group: Speaker: H.E. Judge C. G. Weeramantry (Sri Lanka), Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Sustainable Justice: The Role of International Law. UCLA Law: Rethinking Redistribution: Tax Policy in an Era of Rising Inequality.
Zeiler on Tort Reform Kathryn Zeiler (Georgetown University Law Center) has posted Turning from Damage Caps to Information Disclosure: A New Approach to Tort Reform (Yale Journal of Health Policy, Law, and Ethics, Vol. 1, 2005) on SSRN. Here is the abstract:
Ku and Yoo on Functionalism and the Alien Tort Statute Julian Ku and John C. Yoo (Hofstra University - School of Law and University of California at Berkeley School of Law) have posted Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:
Bernstein on the Enterprise of Liability Anita Bernstein (Emory University School of Law) has posted The Enterprise of Liability (Valparaiso University Law Review, Vol. 69, p. 27, 2004) on SSRN. Here is the abstract:
Kaczorowski on Supreme Court Enforcement of Constitutional Rights Robert J Kaczorowski (Fordham University - School of Law) has posted A Synopsis of The Supreme Court and Congress's Power to Enforce Constitutional Rights: An Overlooked Moral Anomaly (Fordham Law Review, Vol. 73, No. 154, 2004) on SSRN. Here is the abstract:
Thursday, January 27, 2005
Thursday Calendar
U.C. Berkeley, Workshop in Law, Philosophy, & Political Theory: Jeff McMahan, Philosophy, Rutgers University, THE BASIS OF MORAL LIABILITY TO DEFENSIVE KILLING. Here's a taste:
Stanford Law & Economics: Christine Jolls (Harvard Law School), "Debiasing Through Law (with Special Reference to Employment Discrimination Law)" Fordham University College of Law: Joel Reidenberg, Professor of Law, Fordham, "Internet Jurisdiction". Boston University, School of Law: Hillary Sale (Iowa), "Banks, The Forgotten (?) Partners in Fraud". George Washington University IP Series: F. Scott Kieff, Washington University - St. Louis School of Law, "Introducing a Case Against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes" Northwestern Tax Series: Howard Abrams, Professor of Law, Emory University, "The Section 734(b) Basis Adjustment Needs Repair". Oxford Financial Law Discussion Group: Andrew Whittaker, Current Issues in Financial Regulation. Oxford Public International Law Discussion Group: Penelope Simons, Corporate Voluntarism and Human Rights: The Adequacy and Effectiveness of Voluntary Self-Regulation Regimes. University of Michigan, Cyberlaw & Economics: Peter Swire, Ohio State, A Model for When Disclosure Helps Security: What is Different About Computer and Network Security? Greene on Sager Abner Greene (Fordham University - School of Law) has posted Can We Be Legal Positivists Without Being Constitutional Positivists? (Fordham Law Review, Vol. 73, 2005) on SSRN. Here is the abstract:
Call for Papers: Development
Wednesday, January 26, 2005
Welcome to the Blogosphere . . . . . . to The Conservative Philosopher, a group blog that includes Keith Burgess-Jackson, Michael C. Sudduth, Jim Ryan, Max Goss, William F. Vallicella, Stephan L. Burton, Robert C. Koons, John Kekes, and Edward C. Feser. Wednesday Calendar
Oxford Centre for Criminology: Mike Hough, Public Attitudes to Punishment and Penal Populism. University College, London, Colloquium in Legal and Social Philosophy: Professor Niki Lacey (LSE), Analytical jurisprudence versus descriptive sociology revisited. Here is a taste:
UCLA Legal History: Mark Graber, Maryland, Dred Scott as a Centrist Decision. Tuesday, January 25, 2005
Blume & Voigt on the Economic Effects of Human Rights Lorenz Blume and Stefan Voigt (University of Kassel - Economics and University of Kassel - Department of Economics) have posted The Economic Effects of Human Rights on SSRN. Here is the abstract:
Goldman on Warez Trading Eric Goldman (Marquette University - Law School) has posted The Challenges of Regulating Warez Trading (Social Science Computer Review, Vol. 23, No. 24, 2005) on SSRN. Here is the abstract:
Hyman & Silver on Malpractice Liability & Health Care Quality David A. Hyman and Charles Silver (University of Illinois College of Law and University of Texas Law School) have posted The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution? on SSRN. Here is the abstract:
Bainbridge on Executive Compensation Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Executive Compensation: Who Decides? (Texas Law Review, 2005) on SSRN. Here is the abstract:
Tuesday Calendar
University of Chicago Olin Series: Max Schanzenbach, Northwestern University School of Law, Strategic Judging under the United States Sentencing Guidelines: Instrument Choice Theory and Evidence. Hofstra University School of Law: Eugene Volokh, UCLA School of Law, "Parent-Child Speech and Child Custody Speech Restrictions" Loyola Marymount University, School of Law: Georgene M. Vairo, Professor of Law and William M. Rains Fellow, Loyola Law School, "The Role of Private Individuals in Complex Claims Resolution” Can Judges Ignore Inadmissible Information: The Difficulty of Deliberately Disregarding". Lewis & Clark Law School: Dan Rohlf, The Scientific Limits of Democracy. Oxford Intellectual Property Research Centre, Intellectual Property in the New Millennium: Dr David Brennan, What is Equitable Remuneration for Intellectual Property Use? Monday, January 24, 2005
Monday Calendar
University of Texas, Law, Business & Economics: David Dana, Northwestern, "Using The Veil of Ignorance To Ensure Fairness in Class Action Settlements: A Rawlsian/Experimental Economics Approach to of Adequacy of Representation after Stephenson". Conference Announcement: Meeting the Challenge of Grutter
Sunday, January 23, 2005
Legal Theory Calendar
University of Texas, Law, Business & Economics: David Dana, Northwestern, "Using The Veil of Ignorance To Ensure Fairness in Class Action Settlements: A Rawlsian/Experimental Economics Approach to of Adequacy of Representation after Stephenson".
University of Chicago Olin Series: Max Schanzenbach, Northwestern University School of Law, Strategic Judging under the United States Sentencing Guidelines: Instrument Choice Theory and Evidence. Hofstra University School of Law: Eugene Volokh, UCLA School of Law, "Parent-Child Speech and Child Custody Speech Restrictions" Loyola Marymount University, School of Law: Georgene M. Vairo, Professor of Law and William M. Rains Fellow, Loyola Law School, "The Role of Private Individuals in Complex Claims Resolution” Can Judges Ignore Inadmissible Information: The Difficulty of Deliberately Disregarding". Lewis & Clark Law School: Dan Rohlf, The Scientific Limits of Democracy. Oxford Intellectual Property Research Centre, Intellectual Property in the New Millennium: Dr David Brennan, What is Equitable Remuneration for Intellectual Property Use?
Oxford Centre for Criminology: Mike Hough, Public Attitudes to Punishment and Penal Populism. University College, London, Colloquium in Legal and Social Philosophy: Professor Niki Lacey (LSE), Analytical jurisprudence versus descriptive sociology revisited. NYU Legal History: James Jacobs, NYU School of Law. UCLA Legal History: Mark Graber, Maryland, Dred Scott as a Centrist Decision.
U.C. Berkeley, Workshop in Law, Philosophy, & Political Theory: Jeff McMahan, Philosophy, Rutgers University, THE BASIS OF MORAL LIABILITY TO DEFENSIVE KILLING. Here's a taste:
Stanford Law & Economics: Christine Jolls (Harvard Law School), "Debiasing Through Law (with Special Reference to Employment Discrimination Law)" Fordham University College of Law: Joel Reidenberg, Professor of Law, Fordham, "Internet Jurisdiction". Boston University, School of Law: Hillary Sale (Iowa), "Banks, The Forgotten (?) Partners in Fraud". George Washington University IP Series: F. Scott Kieff, Washington University - St. Louis School of Law, "Introducing a Case Against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes" Northwestern Tax Series: Howard Abrams, Professor of Law, Emory University, "The Section 734(b) Basis Adjustment Needs Repair". Oxford Financial Law Discussion Group: Andrew Whittaker, Current Issues in Financial Regulation. Oxford Public International Law Discussion Group: Penelope Simons, Corporate Voluntarism and Human Rights: The Adequacy and Effectiveness of Voluntary Self-Regulation Regimes. University of Michigan, Cyberlaw & Economics: Peter Swire, Ohio State, A Model for When Disclosure Helps Security: What is Different About Computer and Network Security?
Oxford, Said Business School (in conjunction with EU Research and Training Network and the Oxford Review of Economic Policy): Corporate Governance Conference. Oxford Globalisation & Sustainable Development Law Group: Speaker: H.E. Judge C. G. Weeramantry (Sri Lanka), Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Sustainable Justice: The Role of International Law. UCLA Law: Rethinking Redistribution: Tax Policy in an Era of Rising Inequality.
Legal Theory Lexicon: Social Welfare Functions
Background
Cardinal and Ordinal Interpretations of Utility One key divide is between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual i prefers possible world X to possible world Y, but it doesn't tell us whether X is much better than Y or only a little better. A cardinal utility function yields a real-number value for each possible state of affairs. If we assume that utility functions yield values expressed in units of utility or utiles, then individual's utility function might score possible world P at 80 utiles and possible world Q at 120 utiles. We might represent the utility function U of individual i for P and Q as follows:
Measurement Problems Both cardinality and interpersonal comparability pose measurement problems for economists. Even in the case of a single individual, it is difficult to reliability measure cardinal utilities. Measurements that support interpersonal comparisons are even more difficult to justify, and cardinal interpersonal comparisons seem to require the analyst (the person making the comparison) to make a variety of controversial value judgments. Market prices won't do as a proxy for utility, for a variety of reasons including wealth effects. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal interpersonally comparable utilities. Pareto This is the point at which Pareto arrives on the scene. Suppose that all the information we have about individual utilities is ordinal and non-interpersonally comparable. In other words, each individual can rank order states of affairs, but we (the analysts) cannot compare the rank orderings across persons. The weak Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if everyone's ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn't get us very far, because such unanimity of preferences among all persons is rare. The strong Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if at least one person ranks P higher than Q and no one ranks Q higher than P. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions. The New Welfare Economics The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals i1 and i2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient. Weak Pareto and the Arrow Impossibility Theorem Weak Pareto plus ordinal utility information allows some social states (or possible worlds) to be ranked on the basis of everyone's preferences. A method for transforming individual utility information into such a social ranking is called a social utility function. Kenneth Arrow's famous impossibility theorem demonstrates that it is impossible to construct a social utility function that can transform individual ordinal rankings into a social ranking in cases not covered by weak Pareto, if certain plausible assumptions are made. Arrow's theorem has spurred two lines of development in welfare economics. One line of development relaxes various assumptions that Arrow made; for example, we might relax Arrow's assumption that the social ranking must be transitive (if X is preferred to Y and Y is preferred to Z, then X must be preferred to Z). The other line of development considers the possibility of allowing information other than individual, noncomparable ordinal utilities. It is this second line of development that is relevant to the use of social welfare functions in contemporary law and economics.
F is some increasing function that yields a real number, U1(x) is a cardinal, interpersonally comparable utility value yielded by some procedure for individual 1 for state of affairs X, and N is the total number of individuals. What Are the Plausible Social Welfare Functions? There are a variety of different possible functions that can be substituted for F. Here are some of the most important possibilities:
Bernoulli-Nash SWF--In the alternative, we could substitute the product function (¡Ç) and multiply individual utilities. This is sometimes called a Bernoulli-Nash social welfare function, which can be represented as follows:
One of the interesting theoretical questons about SWFs concerns the problem of interpersonal comparison. How do we get the values to plug into U1(x), U2(x), and so forth. That is, how do we compare up with a way of putting my utility and your utility on the same scale. As I understand the state of play, this is not a topic on which economists agree. Some economists believe that there is no objective way of producing interpersonally comparable cardinal utility values. But some economists believe that a third-party (the legal analyst or the economist) can do the job of assigning values to individual utilities. Conclusion We've barely begun to scratch the surface of the many interesting theoretical issues that attend the use of social welfare functions in legal theory. Some of those issues were explored in a prior Legal Theory Lexicon entry on Balancing Tests. Even if you have absolutely no background in economics, there is no reason to shy away from the debates about social welfare functions. The notation, although at first intimidating, is actually very simple. The foundational ideas, although sometimes articulated in the jargon of economic theory, really go to fundamental questions in moral theory. I hope this post has given you the tools to begin to discuss these ideas! Saturday, January 22, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends On Bullshit by Harry G. Frankfurt. Here is a description:
Download of the Week The Download of the Week is Objectivity in ethics: two difficulties, two responses by David Wiggins. Wiggins is one of the deepest and most interesting moral philosophers. Here is a taste from the paper:
Saturday Calendar
Friday, January 21, 2005
Haque on Dan-Cohen Adil Ahmad Haque (Yale University - Law School) has posted The Harmless Thoughts of Meir Dan-Cohen on SSRN. Here is the abstract:
Friday Calendar
University of San Diego, School of Law & University of California at San Diego, Department of Political Science and Graduate School of International Relations and Pacific Studies: "Administrative Law and Process in the U.S. and Abroad: Cross-Disciplinary Perspectives" (today & tomorrow):
Hathaway Debates Posner at Legal Affairs Alice Dong emails:
Thursday, January 20, 2005
Thursday Calendar
Northwestern University, School of Law, Constitutional Theory Colloqium: Stanley Fish, University of Illinois at Chicago, English, "There Is No Textualist Position". UCLA Legal Theory Workshop: Mark G. Kelman, The Interdependence of Irreconcilable Foundational Beliefs. University Pennsylvania, Legal Theory Workshop: Professor Henry Richardson, eorgetown University Philosophy Department, Nussbaum's critique of Rawls. University College, London, Colloquium in Legal and Social Philosophy: Professor David Wiggins (Oxford), Objectivity in ethics: two difficulties, two responses. Boston University, School of Law: Jenny Wiggins (Maine) "The Color of Injury: Race, Gender, and Torts in the First Half of the Twentieth Century". Fordham University, School of Law: Elizabeth Cooper, Associate Professor of Law, Fordham, "Choosing Parenthood in the AIDS Epidemic: Can Law Catch Up to Science?" University of Michigan, Cyberlaw & Economics: John Rothchild, Wayne State, Economic Analysis of Technological Protection Measure. The Internet is P2P Read Ed Felten's My Morning Pick-Me-Up about California Senate Bill 96, which is targeted at P2P filesharing software. Here is the key language from the bill:
Strauss on the Story of Overton Park Peter L. Strauss (Columbia Law School) has posted Citizens to Preserve Overton Park v. Volpe on SSRN. Here is the abstract:
Confirmation Wars Department Over at law.com, T.R. Goldman has a piece entitled Handicapping Bush's Judicial Nominations. Here's a taste:
Wednesday, January 19, 2005
Conference Announcement: Some Modest Proposals 2.0
Strauss on Statutes that are not Static Peter L. Strauss (Columbia Law School) has posted Statutes that are not Static - The Case of the APA (Journal of Contemporary Legal Issues, Vol. 14, No. 2, February 2005) on SSRN. Here is the abstract:
Stark on Objections to Endowment Taxation Kirk J. Stark (University of California, Los Angeles - School of Law) has posted Enslaving the Beachcomber: Some Thoughts on the Liberty Objections to Endowment Taxation (Canadian Journal of Law & Jurisprudence, January 2005) on SSRN. Here is the abstract:
Book Announcement: Morton White's From a Philosophical Point of View
Tuesday, January 18, 2005
Tuesday Calendar
Vanderbilt University Law School: Burch Lecture, Professor Erik Jayme, Institute for Foreign, International, Private & Economic Law, Heidelberg. Bix on Recognition of Marriage Brian Bix (University of Minnesota Law School) has posted State Interests in Marriage, Interstate Recognition, and Choice of Law (Creighton Law Review, 2005) on SSRN. Here is the abstract:
Ratner on the Impartiality of International Law Steven R. Ratner (University of Michigan at Ann Arbor - Law School) has posted Is International Law Impartial? on SSRN. Here is the abstract:
Stabile on Religion & Corporate Responsibility Susan J. Stabile (St. John's University - School of Law) has posted Using Religion to Promote Corporate Responsibility (Wake Forest Law Review, Vol. 39, 2004) on SSRN. Here is the abstract:
Kordana & Tabachnick on Rawls & Contract Law Kevin A. Kordana and David H. Tabachnick (University of Virginia - School of Law and University of Virginia - Department of Philosophy) have posted Rawls and Contract Law (George Washington Law Review, Vol. 73, March 2005) on SSRN. Here is the abstract:
Monday, January 17, 2005
Monday Calendar
Northwestern University, International Law: Todd Allee, University of Illinois at Urbana-Champaign, Political Science, "Legal Incentives and Domestic Rewards: The Selection of Trade Disputes for GATT/WTO Dispute Resolution" Baker, Choi, and Gulati on the U.S. News Law School Rankings Scott Baker, Stephen J. Choi and G. Mitu Gulati (University of North Carolina at Chapel Hill - School of Law , New York University - School of Law and Georgetown University Law Center) have posted The Rat Race as an Information-Forcing Device on SSRN. Here is the abstract:
New from Law & Politics Book Review
RIGHTS AND PREJUDICE: PROLEGOMENA TO A HERMENEUTICAL PHILOSOPHY OF LAW, by Jarkko Tontti. Aldershot: Ashgate Publishing, 2004. 210pp. Hardback. $99.95 / £55.00. ISBN 0-7546-2397-1. Reviewed by Adam Gearey. MIRANDA: THE STORY OF AMERICA'S RIGHT TO REMAIN SILENT, by Gary L. Stuart. Tucson: University of Arizona Press, 2004. 212 pp. Hardcover. $24.95. ISBN: 0-8165-2313-4. Reviewed by David S. Mann. LAW, JUSTICE, AND POWER: BETWEEN REASON AND WILL, by Sinkwan Cheng (ed). Stanford: Stanford University Press, 2004. 296pp. Paper. $24.95. ISBN: 0804748918. Cloth. $60.00. ISBN: 0804748853. Reviewed by Kyle L. Kreider. THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY, by Alexander Tsesis. New York: New York University Press, 2004. 240pp. Hardcover. $45.00. ISBN: 0814782760. Reviewed by Daniel N. Hoffman. LEGAL ETHICS: A COMPARATIVE STUDY, by Geoffrey C. Hazard, Jr. and Angelo Dondi. Stanford: Stanford University Press, 2004. 368pp. Cloth $60.00. ISBN: 0-8047-4882-9. Reviewed by Amalia D. Kessler. COPING IN POLITICS WITH INDETERMINATE NORMS: A THEORY OF ENLIGHTENED LOCALISM, by Benjamin G. Gregg. Albany: State University of New York Press, 2003. 210pp. Cloth. $54.10. ISBN: 0-7914-5781-8. Paper. $17.95. ISBN: 0-7914-5782-6. Reviewed by Tracy Lightcap. GOVERNMENTS, LABOUR, AND THE LAW IN MID-VICTORIAN BRITAIN: THE TRADE UNION LEGISLATION OF THE 1870s, by Mark Curthoys. Oxford: Oxford University Press, 2004. 304pp. Hardback. £55.00 / $99.00. ISBN: 0-19-926889-4. Reviewed by Philip Benesch. THE ABORTION RIGHTS CONTROVERSY IN AMERICA: A LEGAL READER, by N. E. H. Hull, Williamjames Hoffer, and Peter Charles Hoffer (eds). Chapel Hill, NC: University of North Carolina Press, 2004. 352pp. Cloth $59.95. ISBN: 0-8078-2873-4. Paper $24.95. ISBN: 0-8078-5535-9. Reviewed by: Matt Wetstein. TANGLED LOYALTIES: CONFLICT OF INTEREST IN LEGAL PRACTICE, by Susan P. Shapiro. Ann Arbor: University of Michigan Press, 2002. 512pp. Paper. $35.00. ISBN 0-472-06801-6. Cloth. $75.00. ISBN: 0-472-09801-2. Reviewed by Robert Dingwall. BETWEEN LAW & POLITICS: THE SOLICITOR GENERAL AND THE STRUCTURING OF RACE, GENDER, AND REPRODUCTIVE RIGHTS LITIGATION, by Richard L. Pacelle, Jr. College Station: Texas A&M University Press, 2003. 342pp. Hardback. $50.00. ISBN: 1-58544-234-8. Reviewed by John Brigham. Sunday, January 16, 2005
Legal Theory Calendar
Northwestern University, International Law: Todd Allee, University of Illinois at Urbana-Champaign, Political Science, "Legal Incentives and Domestic Rewards: The Selection of Trade Disputes for GATT/WTO Dispute Resolution"
Vanderbilt University Law School: Burch Lecture, Professor Erik Jayme, Institute for Foreign, International, Private & Economic Law, Heidelberg.
UCLA Legal Theory Workshop: Mark G. Kelman, The Interdependence of Irreconcilable Foundational Beliefs. University Pennsylvania, Legal Theory Workshop: Professor Henry Richardson, eorgetown University Philosophy Department, Nussbaum's critique of Rawls. University College, London, Colloquium in Legal and Social Philosophy: Professor David Wiggins (Oxford), Objectivity in ethics: two difficulties, two responses. Boston University, School of Law: Jenny Wiggins (Maine) "The Color of Injury: Race, Gender, and Torts in the First Half of the Twentieth Century". Fordham University, School of Law: Elizabeth Cooper, Associate Professor of Law, Fordham, "Choosing Parenthood in the AIDS Epidemic: Can Law Catch Up to Science?" University of Michigan, Cyberlaw & Economics: John Rothchild, Wayne State, Economic Analysis of Technological Protection Measure. UC Berkeley, Kadish Center, Workshop in Law, Philosophy, and Political Theory: Victoria Kahn, Professor of English and Comparative Literature, University of California, Berkeley, Promise v. Contract: the Sovereign Subject Revisited.
Legal Theory Lexicon: Balancing Tests
Case-by-Case versus Systemic Balancing The first distinction to master when thinking about balancing tests is that between case-by-case and systemic balancing. When a court adopts a case=by-case balancing test, the test is applied to each case, one case at a time. For example, in personal jurisdiction law, a case-by-case balancing test is used to determine whether assertions of personal jurisdiction are consistent with the Due Process Clause. But not all balancing is done on a case-by-case basis. For example, Mathews v. Eldridge announced a balancing test for determining whether pre-deprivation hearings are required by Due Process. This balancing test is applied to general categories (types) of deprivations. Once it has been determine that the balancing test does not require a hearing in category (e.g. Social Security disability benefit cases), the result is a categorical rule that can be applied to the category without further balancing. There is, of course, an analogy between the difference between case-by-case versus systemic balancing and the difference between act and rule utilitarianism. Act utilitarianism makes the rightness of an action depend on the consequences of that individual action. Rule utilitarianism makes the rightness of an action depend on whether the action conforms to the system of rules that would produce the best consequences. This analogy points to a larger concept--the scope of decision problem. Many legal theories assume that the scope of decision is an individual action or case, whereas others look to individual legal rules and yet others look to types of rules. Here is a nifty move, made famous by David Lyons (the legal philosopher who teaches at Boston University). Lyons argued that rule utilitarianism could be shown to be extensionally equivalent to act utilitarianism. His argument was beautifully simple. Take a rule and a particular action that would be required by act utilitarianism but forbidden by the utility maximizing rule. Now imagine an exception to the rule that would allow the utility maximizing action to be treated differently. The new rule-plus-exception produces more utility than the old rule. Hence rule utilitarianism requires the new rule. Lyons argued that we can iterate this move until rule utilitarianism and act utilitarianism require exactly the same results. One more point about case-by-case versus systemic balancing. Both kinds of balancing can be done ex post (backwards looking) or ex ante fowards looking. Take the Learned Hand balancing test for negligence. This test requires us to compare the cost of safety (ex post) against the benefits (ex post). This is ex post, case-by-case balancing. But when courts decide whether to issue an injunction, they sometimes "balance the equities," ex ante, asking whether the injuries done if the injunction does not issue will outweigh those that will result if the injunction is entered--in the future. Likewise, systemic balancing can be done either ex post or ex ante. What is Balanced? Yet another question that must be faced by any balancing test is "What is balanced?" Courts seem to think that just about any sort of interest or factor can be balanced. One kind of balancing test is represented by the International Shoe test for personal jurisdiction. This test balances interests--i.e. the interest of the plaintiff in the forum, the interest of the forum in the dispute, and so forth. Another kind of balancing test takes a varity of so-called factors into account: "prejudice to the defendant," "the impact on nonparties," and so forth in the case of tests for mandatory joinder. Properly speaking, such factors cannot really be balanced. Interests belong on the same scale--at least if they are the right kind of interests, but "factors" are usually considerations that bear in complex ways on a decision. The integration of multiple factors into a decision may involve balancing, but it also may involve reasoning that doesn’t actually weigh and compare commensurables. The Commensurability Problem This last point about balancing tests leads to a very fundamental idea in legal theory. Some approaches to moral theory make all ultimate values commensurable. In contemporary law and economics, for example, one approach reduces all value to preference-satisfaction, which then can be weighed via a Bergson-Samuelson social utility function. W(x) = F {U1(x), U2(x), . . UN(x)}, where F is some increasing function, U1 is the utility of state of affairs X for individual number 1, and so forth. Although some forms of consequentialism have the property of making all values commensurable, many moral theories do not have this property. Deontological ethics and virtue ethics, for example, generally are interpreted as maintaining that not all values are commensurable and hence as denying that balancing is even possible in some choice situations. The commensurability problem also provides a nifty move for legal theorists. If someone proposes a balancing test, ask yourself if the things that it requires to be weighed are such that they really can be measured on the same scale. If not, then the proposed balancing test simply will not be able to do the work assigned to it. Balancing Tests and the Rule of Law Yet another issue concerning balancing tests is the fancy version of the law student's intuition that balancing tests are subjective. Justice Scalia, for example, has argued that balancing tests undermine the rule of law because of their subjectivity and elasticity. If we believe that the rule of law values--certainty and predictability of the law--are very great social goods, then we have a general reason to prefer categorical rules to balancing tests. On the other hand, some balancing tests may be actually be more predictable than some rules with respect to a particular problem. For example, a case could be made that the "purposeful availment" component of the International Shoe test for personal jurisdiction is more subjective than the multifactor balancing component of the Shoe test. Some rules are very fuzzy; some balancing tests are quite precise. Conclusion Balancing tests are so common in American law, that you might begin to take them for granted, but that would be a mistake. Almost every balancing test raises interesting issues of legal theory. I hope this post has provided you with the tools to begin asking those questions. Saturday, January 15, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Torture: A Collection, edited by Sandy Levinson. Here is a description:
Download of the Week The Download of the Week is California's Hybrid Democracy by Elizabeth Garrett. Here is the abstract:
Friday, January 14, 2005
Mr. Justice Posner Stepehn Choi and Mitu Gulati (authors of A Tournament of Judges? and Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance) have now posted Mr. Justice Posner? Unpacking the Statistics on SSRN. Here is the abstract:
There is nothing wrong with a desire for external recognition; humans as social creatures may naturally desire recognition by their fellows. But an excessive desire for fame is likely to be inconsistent with judicial virtue. The virtue of justice—the central component of judicial excellence—requires that judges aim at giving judges what they are due, that to which they are entitled by the rules laid down. To the extent that judges decide cases on the basis of a desire for the fame and glory that come with winning a tournament of judges, they risk departing from the actions required by the virtue of justice; to put it more bluntly, a tournament of judges may create incentives to do injustice in order to win. Justice may require a prosaic opinion that says nothing likely to garner oodles of citations. Winning the tournament of judges may encourage a more dramatic opinion that makes new law in order to garner attention. Slater on Online Business Models in Music & Film The Berkman Center recently published "Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Models in the Music and Film Industries," by Derek Slater. Here is a brief description:
Callfor Papers: Reason and Evaluation
Two Positions at Stanford's CIS
Election Law Symposium Rick Hasen has posted a notice about a significant symposium on election law. Here is the information posted on Election Law Blog:
Book Announcement: Constitutional Goods
Book Announcement: Frederick Pollock and the English Juristic Tradition
Thursday, January 13, 2005
Garrett on Hybrid Democracy Elizabeth Garrett (University of Southern California - Law School) has posted California's Hybrid Democracy (George Washington Law Review, 2005) on SSRN. Here is the abstract:
Bainbridge on Concepts of the Corporation Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Competing Concepts of the Corporation (a.k.a. Criteria? Just Say No) on SSRN. Here is the abstract:
Book Announcement: Where Law and Morality Meet
Wednesday, January 12, 2005
Boettiger and Burk on Open Source Patenting Sara Boettiger and Dan L. Burk (Public IP Resource for Agriculture (PIPRA) and University of Minnesota Law School) have posted Open Source Patenting (Journal of International Biotechnology Law, Vol. 1, pp. 221-231, 2004) on SSRN. Here is the abstract:
Yoo on the Age of Terrorism John C. Yoo (University of California at Berkeley School of Law) has posted War, Responsibility, and the Age of Terrorism (Stanford Law Review, 2004) on SSRN. Here is the abstract:
New at Law & Politics Book Review
RECONSIDERING ROOSEVELT ON RACE: HOW THE PRESIDENCY PAVED THE ROAD TO BROWN, by Kevin J. McMahon. Chicago: University of Chicago Press, 2003. 308pp. Paper $20.00. ISBN: 0-226-50088-8. Cloth. $52.00. ISBN: 0-226-50086-1. Reviewed by Lauren Bowen. THE SUPREME COURT REVIEW 2003, edited by Dennis J. Hutchinson, David A. Strauss, and Geoffrey R. Stone. Chicago: The University of Chicago Press. 2004. 458 pgs. Cloth $60.00. ISBN 0-226-36320-1. Reviewed by Frank Colucci. THE DEMOCRATIC CONSTITUTION, by Neal Devins and Louis Fisher. New York: Oxford University Press. 2004. 320pp. Cloth. $72.00 / £44.00. ISBN: 0-19-517122-5. Paper. $19.95 / £12.50. ISBN 0-19-517123-3. Reviewed by Ken I. Kersch. Tuesday, January 11, 2005
NEH Summer Seminar
Call for Papers: Metaethics Workshop
Fellowships at the LSE
Symposium Announcement: Welfare and Rational Care by Darwall
Monday, January 10, 2005
Conference Announcement: Susan Okin
Amar on Sander Vik Amar has a column entitled Does Race-Based Law School Affirmative Action Actually Hurt African-Americans? over at FindLaw. Here is a taste:
Weekend Wrap Up On Saturday, the Legal Theory Bookworm recommended Catastrophe: Risk And Response by Richard A. Posner and the Download of the Week was The Web of Law by Tom Smith. Also on Saturday, I blogged the program of the Constitutional Law Section at the Association of American Law School's annual meeting in San Francisco. More AALS blogging from Jonathan Adler at The Commons Blog, here, here, and here. Finally, on Sunday, the Legal Theory Lexicon entry was Procedural Justice. Schwartzman on Hunter on Electronic Publication of Legal Scholarship Micah Schwartzman has some thoughts on Dan Hunter's paper, Walled Gardens, over at Crooked Timber. Hunter argues that Law Reviews should permit (or themselves provide) open access posting of papers simultaneously with publication. Schwartzman mostly agrees, but offers a perspective that is more sympathetic to the interests of student-edited law journals. Here is a taste:
The Next Supreme Court Nominee Who will be the next Chief Justice? And if the Chief is elevated from among the current members of the Court, who will be the next Associate Justice? Here is a collection of links to lists:
Hasen on Trust in Elections Check out election-law superblogger Rick Hasen's "Crisis of Trust Over Voting Difficulties Must Be Addressed" (on Roll Call) with an extended hyperlinked version on Election Law Blog. Here is a taste:
Post-election controversies are usually the stuff of close elections, and this year is no exception: The Washington state gubernatorial race, for example, features a 130-vote margin out of almost 3 million votes cast. But this year’s election season is qualitatively different from earlier ones, in that those on the losing side of close elections increasingly are alleging fraud in the election process. These claims, in turn, appear to be undermining the public’s faith in the electoral process, creating a much more dangerous situation than most people realize and requiring some radical changes in the way we run elections in this country. Sunday, January 09, 2005
Legal Theory Lexicon: Procedural Justice
Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome. Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,
In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:
Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:
But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy. The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:
Consider for example, Richard Posner?s economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs. The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures. On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:
Online Resource Bibliography Saturday, January 08, 2005
Blogging from San Francisco: Precedent and Originalism
Randy Barnett Barnett is first. He begins with a bit of history. In the early 1980s, originalism was thought to be “dead,” having been criticized by Paul Brest and Jeff Powell in famous articles. But today, originalism has risen like a phoenix from the ashes, but in a new form—public meaning originalism, which emphasizes the public meaning of constitutional provisions at the time they were adopted. Today, the biggest issue for originalism is the problem of precedent or stare decisis. That problem arises from the tension between originalism's commitment to the proposition that the original meaning is binding on judges, on the one hand, and the notion that binding precedent requires judges to follow prior decisions that depart from original meaning, on the other hand. One can react to this in one of two ways, either rejecting precedent or rejecting originalism. The idea that precedent should not be binding has troubling implications. For example, if original meaning is inconsistent with Brown v. Board—Barnett says he thinks it is not inconsistent—then many reasonable people would reject originalism, rather than Brown Barnett points out, however, that Brown itself was inconsistent with precedent. More generally, almost everyone accepts that at least some precedents should be rejected some of the time. Nonoriginalists, however, have an easier time explaining why precedent should sometimes be respect. Originalists have a difficult time explaining why precedent should ever been respect. Barnett then turns to the originalist view of precedent. He begins by saying that original meaning should trump precedent, whenever the two are in conflict. Even in constitutional cases, however, the original meaning may not determine the outcome of the case. The original public meaning of the text only governs when it actually answers the question at hand. Sometimes, the original meaning is abstract or at a high level of generality. Original-intent originalism looks to intent in order to resolve these cases where the constitution is vague. But original-meaning originalism can accept that vague constitutional provisions leave room for judicial “construction.” When construction (as opposed to interpretation) is called for, then precedent can play a role. So, an original-meaning originalist can accept a very large role for precedent—but only in cases of constitutional construction. Barnett is out of time, but he adumbrates two further points. One is that precedent may have a role to play when there is a strong reliance interest in individual law. The other is that it is still an open question whether existing precedent might be “grandfathered in.” That is, precedent would not play a role once the court became originalist, but the court would not disturb the existing body of precedent. David Strauss Strauss begins by outlining three propositions:
On the second proposition, Strauss says, there is a long tradition of thought explaining why precedent is important. Originalists, says Strauss, have no similar theory that explains why judgments made by people long ago should bind us. Strauss says that Scalia’s argument for originalism is that original meaning provides “some limits” on what judges can do. That argument, says Strauss, is find, so far as it goes, but it does not explain why the original meaning (as opposed to precedent) should provide the limits. One big advantage of a common law system based on precedent is that it can candid—it can take it moral judgments, within limits. Precedent allows for a role for moral judgments, about the evils of segregation, for example. Originalists cannot allow in the moral judgment of contemporary society. Originalism privileges the judgments of people who lived long ago and have very little in common with those who live today. The framers were Americans. Strauss says that the fact that the founders were Americans is not an adequate reason for a constitutional view. So, originalism is sectarian—it is based on a particular tradition—and hence does not provide good reasons for immigrants who do not share a moral tradition with the framers. Precedent is based on humility and the notion that precedent provides for an accretion of wisdom. No one generation has a monopoly on moral insight. Each generation builds on the moral insights of prior generations. You can depart from the wisdom of prior generations, but cautiously and incrementally. This view gives a reason why we should defer to the judgments made by past generations. Akhil Amar There are various approaches to the problem of precedent and originalism. Unoriginal originalists say we take an oath of allegiance to the constitution, and hence the constitutionalism is binding, but they do not derive their theory of precedent from the constitution itself. The unprecedented precedentialists do not say that precedent trumps the constitution. They purport that precedent does follow the constitution. Precedent does not openly depart from the Constitution. In Casey, the Supreme Court did say that a decision to overrule should rest on some reason, over and above that the prior case was wrongly decided. In fact, the Supreme Court does overrule prior decisions on originalist grounds. (These cases are discussed in his 2000 forward to the Harvard Law Review.) So what account of precedent can an originalist give of precedent. This view is also in his Harvard Law Review forward. That argument begins with the reasons why the Constitution is higher law. We do pledge allegiance to the Constitution. The idea behind that is popular sovereignty—the collective wisdom of those who adopted the Constitution. “Who is this ‘We?’” The Constitution is not just about 200 years ago. There are many Amendments that include the participation of many groups, e.g. women in the campaign for women’s suffrage. The Constitution has been amended by the liberals of each era. We grow out of the tradition in which the Constitution was adopted and amended. There is a lot more deliberation that goes into constitutional amendments than in individual Supreme Court decisions—written by recent law school graduates. Amar believes that the Constitution is wiser than the case law. The constitution says “equal,” not “separate but equal.” Across the board, the Constitution is better than the cases. Hugo Black would tell you that the Constitution is a progressive, wise, and public document. What about precedent within originalism? Doctrine within constitutional parameters is precedent. Vertical precedent (inferior courts) is precedent. Precedent can fix meaning, until it is shown to be wrong. If John Marshall disagrees with me, I should think carefully before I conclude that he got it wrong and I got it right. Finally, there are constitutional mistakes that have been ratified by the people. Brown has been embraced by the people. If a mistake has been ratified by the people, then the deep theory of popular sovereignty justifies respecting the mistaken precedent. James Madison actually deduced just this theory of precedent. Tom Merrill Merrill begins by saying he will not discuss foundational principles. He will start with the assumption that our system is both originalist and precedent based. When we have a question of first impression or a question of overruling precedent, then almost all the justices consider original meaning. But most Supreme Court cases cite precedent and many (perhaps most) do not even quote the constitutional text. Do you want to adopt a weak theory of precedent or a strong theory of precedent? A weak theory affords precedent on presumptive force. A strong theory would require more to overrule a precedent, e.g. clearly erroneous plus unworkable or undesirable. Will a stronger of weaker theory of precedent produce a more restrained judiciary? “Judicial restraint” means a style of judging that produces few surprises. Restrained judges reach decisions that would be similar to those that a good lawyer would advice the client is the current law. Restraint is good because it avoids “lobbying of the courts” by interest groups to get policy changes. Restraint also produces predictability in the law, enhancing liberty. Restraint produces equal treatment. Restraint also produces more backbone in cases where judges are needed to protect unpopular minorities. How would we rate weak versus strong precedent on the criterion of restraint? A strong theory will more likely produce restraint. Why? First, a body of precedent produces a thicker set of norms than the text of constitution. If you think about any particular case, e.g. the medical cannabis case, etc., the amount of legal authority in the constitutional text is very thin. The precedent is much thicker. The thicker the body of norms, the narrower the range of possible outcomes. When John Marshall was sitting on the Court, there weren’t many precedents, but today there is much more precedent. Second, how accessible are the norms. Precedent is very accessible. It is very easy to get one’s hand on Supreme Court precedent. But evidence about original meaning is much harder to find. Both Scalia and Thomas, for example, have complained that the briefs don’t say much about original meaning. Third, the skill set that judges have is very strongly influenced by common-law method. By and large, law schools do a bad job of teaching textual interpretation. Textual interpretation is wooden and often based on unprincipled use of legislative history. Of course, case law is manipulable. There is a lot of manipulation in the common-law method, but there is also a lot of restraint. Many issues are settled and cannot be manipulated. The system of original understanding is not as well understood. Historians say that the research required to really understand the original meaning is daunting. Does evidence bear on the question whether originalism or precedent is more constraining. The Supreme Court does follow a weak theory of precedent. Lower courts follow an absolute (strong) theory of precedent. The constitutional law in the lower courts is driven by precedent and not by original meaning. This suggests that the lower courts are more restrained and predictable. Constitutional innovations rarely come from the lower courts; they rarely come from the Supreme Court itself. Steve Calabresi Calabresi, the moderator, observes that we have a tradition of honoring the written constitution. He suggests that the 1937 New Deal revolution, Brown, the school-prayer cases, the Rehnquist new Federalism cases (Lopez, and Blakely–all relied on the constitutional text to displace precedent in favor of originalism. Our practice is to venerate the written constitution. Randy Barnett Barnett disagrees with Merrill about the question whether originalism includes moral concerns, pointing out that his book, The Lost Constitution, makes constitutional legitimacy depend on moral acceptable. One of the reasons the Constitution is legitimate is that it includes open-ended provisions that bring morality into constitutional law. Why should we care about what the founder’s put in the constitution? Barnett suggests the answer to this question depends on the virtues of a written constitution. Barnett suggests that the skill sets could change if we had an originalist jurisprudence. Our curriculum is very Supreme Court driven, and we would expect it to change, the skill set would change. Barnett finally suggested that Ashcroft v. Raich would be an easy case if we followed the original meaning of the Commerce Clause. David Strauss Strauss notes that as a practical matter, he agrees with much of what Barnett says. He then turns to Amar, and suggests that, if the Supreme Court consisted of 5 or 9 Amar's, originalism would be more palatable. He suggests that Amar assumes the Constitution is the document, but the Constitution includes more than that. Our Constitution is not just the document—it includes much, much more than that. The understandings we have hammered out over time are part of the Constitution. The real struggle is not change the text; the real struggle is to change understanding. Akhil Amar Amar says that he agrees quite a bit with Barnett on “weak precedent.” And Amar says his view is not just about popular sovereignty it is also about justice. More popular support is more likely to be more just. Amar emphasizes his disagreement with the emphasis on precedent in Strauss’s presentation. Amar thinks that Strauss goes too far in deemphasizing the text. Amar suggests that he learns more from the constitution than from the precedents. Amar says that he agrees with many of Merrill’s second best points. Amar says that many of these institutional factors are important, but that the solution is to read the Constitution. Thomas Merrill He begins with the observation that more precedent is likely to lead to more restraint. He also says that he is puzzled by the idea that the courts have a unique delegated power to make constitutional common law. The constitution applies to all the branches. Questions The first question was from Ned Foley. He suggests that litigants do not believe that judges see themselves as constrained by precedent. Litigants are advised that outcomes are shaped by the composition of the panel. Foley also asks the panel about the relationship of this observation to struggles over judicial appointment. Strauss suggests that precedent does settle many issues; they just don’t get to the court of appeals. Amar points to his Harvard foreword I asked the second question, based on a thought experiment. Suppose we had an originalist court that had developed an originalist understanding of the constitution on a particular point. But because judges are human beings, new justices come onto the court and they disagree with prior opinion about what the original meaning is. /Couldn’t an originalist judge defer to the prior judgments of the institution, on the theory that it is the job of the court as an institution (and not the individual justices) to interpret the meaning of the Constitution. Kurt Lash raised a political process point. He pointed to the example of Madison changing his mind about the Bank, in response to the acceptance of the Bank by the people. Doesn’t it make a difference whether something positive (empowerment) or something negative (constraining of popular institutions) has been done by Court? Akhil suggests that in the case of the ERA, the people may have relied on the Court’s gender equality jurisprudence; so this might be a case where a negative action had been “ratified” by the people. Larry Alexander asked the next question. One aspect of his question concerned a distinction between mistakes with respect to constitutional rules and constitutional standards. Mistakes about constitutional standards can be corrected. More difficult are mistakes about constitutional rules are more difficult. Suppose the constitutional rule is mistaken, it has not been ratified, and the mistaken rule is better than the rule that an originalist would endorse. Steve Calabresi brought things to a close. Download of the Week The Download of the Week is The Web of Law by Tom Smith. Here is the abstract:
Legal Theory Bookworm The Legal Theory Bookworm recommends Catastrophe: Risk And Response by Richard A. Posner. Here's a description:
Friday, January 07, 2005
Ribstein on Free Electronic Distribution of Legal Scholarship Read Larry Ribstein's post, Internet distribution of law review articles, on Ideoblog. Here is a taste:
Blumenthal on Law & the Emotions Jeremy A. Blumenthal (Seton Hall University - School of Law) has posted Law and the Emotions: The Problems of Affective Forecasting (Indiana Law Journal, Vol. 80, 2004) on SSRN. Here is the abstract:
Lindholm on Software Patents Stephen Bruce Lindholm (Stanford Law School) has posted Marking the Software Patent Beast on SSRN. Here is the abstract:
Stavins on Environmental Economics Robert N. Stavins (Harvard University - John F. Kennedy School of Government) has posted Environmental Economics (New Palgrave Dictionary of Economics and the Law , 2nd Edition) on SSRN. Here is the abstract:
Smith on the Web of Law Tom Smith has uploaded The Web of Law to SSRN. Here is the abstract:
Thursday, January 06, 2005
Hunter on Open Access to Legal Scholarship Read this! Dan Hunter (University of Pennsylvania - The Wharton School) has posted Walled Gardens (Washington & Lee Law Review, Vol. 62, 2005) on SSRN. Here is the abstract:
Roberts on Law Without the State Simon Arthur Roberts (University of London - Department of Law) has posted After Government? On Representing Law Without the State (The Modern Law Review, Vol. 68, No. 1, pp. 1-24, January 2005) on SSRN. Here is the abstract:
Timofeeva on Jurisdiction in Internet Content Controversies Yulia A. Timofeeva (University of Erfurt - Max Weber Center) has posted Worldwide Prescriptive Jurisdiction in Internet Content Controversies: Comparative Analysis (Connecticut Journal of International Law, Vol. 20, Fall 2004) on SSRN. Here is the abstract:
Wednesday, January 05, 2005
Just War Theory If you are interested in just war theory, surf on over to JustWarTheory.com! Or go to the excellent introductory essay War on the Stanford Internet Encyclopedia of Philosophy--just one of many links and resources at JustWarTheory.com. Posner & de Figueiredo on Bias in the International Court of Justice Eric A. Posner and Miguel de Figueiredo (University of Chicago Law School and University of California, Berkeley) have posted Is the International Court of Justice Biased? on SSRN. Here is the abstract:
Benvenisti and Porat on Law by Impartial Agents Eyal Benvenisti and Ariel Porat (Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law) have posted Implementing the Law by Impartial Agents: An Exercise in Tort Law and International Law (Theoretical Inquiries in Law, Vol. 6, January 2005) on SSRN. Here is the abstract:
More on Originalism Seth Tillman writes in response to the ongoing discussion on originalism (posts here and here):
And C.E. Petit has another good post on this topic. Here is a taste:
Tuesday, January 04, 2005
Petit on Originalism C.E. Petit has a post on originalism that was insprired by his irritation at my short remarks on the debate over a possible Thomas/Chief Justice nomination. Here is a taste:
Oman on Contract Theory Nate Oman has posted Unity and Pluralism in Contract Law on SSRN. Here is the abstract:
Monday, January 03, 2005
Debate at Legal Affairs: Should Thomas Be Elevated To Chief? Here is a taste from the first installment, by Samuel Marcosson, in the debate:
Link courtesy of election-law super-blogger, Rick Hasen. Sunday, January 02, 2005
Legal Theory Lexicon: Intention
A Note on Terminology Legal theory is most concerned with "intentions" of the ordinary sort: "The defendant intended to kill" or "The Framers intended 'commerce' to exclude 'agriculture' in the commerce clause." involve the ordinary legal use of "intention." There are, however, two related philosophical concepts that might be confused with this sense of intention. Philosophers use the word "intentionality" to refer to the ability of mental states to represent things, properties and states of affairs: in this special sense, all mental states are intentional. And philosophers also have a more technical concept of "intensionality"--spelled with an "s" rather than a "t"--that is used to refer to an important logical feature of words and sentences. A sentence is an intensional context if its truth value is sensitive to the substitution of referentially equivalent descriptions: don't worry, the jargon will be explained!. Ordinary intentions exhibit intentionality, intention sentences are intensional--hence the potential for confusion. Actions Are Intended Under a Description Jane hears a knock on the door and sees someone in the uniform of a package delivery company with a package. She invites the person in. She does not know that the person she has invited into her home is "the Westside rapist"--a serial rapist who disguises himself. If we ask her, did you intend to let "him" in, her answer will depend on the description we give. Did you intend to let the man in the delivery uniform in? Her answer will be "Yes." Did you intend to let the Westside rapist in? Her answer will be "No." The lesson of this example is that actions are intentional under a description. The very same individual was both "the man in the delivery uniform" and "the Westside rapist," but Jane's intentions were not the same with respect to the two different descriptions. Transparent and Opaque Contexts Actions are intentional under a description. Because of that fact, philosophers say that intention is a referentially opaque context. Boy, that is mouthful. What does that mean? Let's take a context that does not involve intentionality. The sentence "The Westside rapist entered Jane's house" does not involve an attribution of an intention. And we can substitute a different description for "Westside rapist" without affecting the truth value of the statement. Assuming that the Westside rapist did enter Jane's house and that his name was Norman Heathcliff, then all of the following statements would be true:
Now, let's go back to intention. Suppose that Jane lets the man into her house, but does not know that he is the Westside rapist or that he is named "Norman Heathcliff." Truth value now will vary depending on how the man is described :
The distinction between opaque and transparent contexts is fundamental to the philosophy of language, and this distinction figures prominently in philosophical writing about "intention." This may all sound a bit abstract, but this distinction is worth mastering. If you don't know it, you will not be able to follow any really sophisticated discussion about intention. What difference does the distinction between referentially transparent and opaque contexts make to the law? That's a big question, but here is one example. Some theories of constitutional or statutory interpretation assert that questions about the applicability of a legal rule can be settled by reference to the intentions of the authors of the statute. One line of attack on this view focuses on the question whether a collective body (e.g. a legislature or constitutional convention) has intentions in the same sense as does an individual. Putting that objection to the side, the distinction between opaque and transparent contexts can be used to build a different sort of objection. Suppose that we have only one legislator, Rex, and that Rex enacts a legal rule. Now a judge, Solomon, must apply the rule in a case where the meaning of the rule is either vague or ambiguous. Can Solomon simply apply the rule as Rex would intend? In some cases, the answer to this question may be "yes," but not in all. Why not? Because Rex may have intended the rule to apply to the case under some descriptions of the case, but not under others. Boy, that's abstract. Can you make your point more concrete? Consider this example. The same Congress that enacted the 14th Amendment's equal protection clause also segregated the schools of the District of Columbia. Suppose that this Congress had the following two intentions: (1) Congress intended that the equal protection clause should prohibit discrimination on the basis of race, and (2) Congress intended that the equal protection clause should not prohibit segregation of the public schools. Now suppose that we believe a third thing: segregation of the public schools is discrimination on the basis of race. Given this situation, the "intentions of Congress" cannot directly settle a particular case, e.g. Brown v. Board of Education. Under one description, Congress would intend that the case should be decided for Brown; under another description, Congress would intend that the case should be decided for the Board. Both descriptions are true of the case. Of course, I haven't developed this objection or the possible responses in a deep or thorough way. There is lots more to say. But the point is this. Legal rules are the product of intentional actions. Like all actions, lawmaking is intentional under a description. This means that statements about legislative intentions are referentially opaque. But when we apply a legal rule to a fact situation, we can describe the facts in many different ways. (A vast number of descriptions can refer to any particular legal dispute.) If intentions are to be used to as the basis for interpreting legal rules, it cannot be on the basis of a theory that says only, "Decide the case as the intentions of the lawmaker require." More will be required to make such a theory work. Intention and Foreseeable Consequences Does "intending an action" make a difference to either moral or legal responsibility? The distinction between intentional and unintentional action certainly seems to be important to both tort law and criminal law. Tort law differentiates between intentional torts and torts based on negligence or strict liability. Criminal law involves what is called mens rea or the "mental state" that is an element of the crime. In ordinary morality, we differentiate between intentional infliction of harm as more culpable than mere negligence. Most law students encounter the problem of foreseeable but unintended consequences in both criminal law and torts. Consider the following examples:
--Example Two: Carlos plants a bomb under the bridge. He wants to destroy the bridge, but he also knows that when he triggers the bomb Dawn is on the bridge right over the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some miracle Dawn would live. --Example Three: Edgar is holding Francis and Gertrude captive. When Edgar's demands aren't met, he executes Francis. Edgar regrets that he had to do this, but he believes this is the only way that he will be able to intimidate Francis and Gertrude's employer into paying a ransom for Francis. --Example Four: Harry shoots in the air on New Year's Eve. The bullet goes up and comes down, killing Ingrid. Harry did not intend to kill anyone, but he did recognize that there was a small risk that his bullet might strike and injure or kill.
In example two, Carlos intended to blow up the bridge and Dawn's death was a foreseen and very likely consequence of this intentional act, but Carlos did not directly intend to kill Dawn. In example three, Edgar intended to kill Francis, but her death was a means to a further end--payment of the ransom. In example four, Harry did not intend to kill Ingrid, but his intentional act foreseeably resulted in her death. Trolley Problems In all four cases described above, the action that results in death is clearly wrongful. But that is not so clear in the famous "Trolley Problem." Here is a statement of the problem:
Our discussion of the Trolley Problem has been very brief and superficial. For more, you can follow this link. For our purposes, the point of the trolley problem is to suggest that intention is potentially important to questions of culpability. Conclusion Every legal theorist needs a basic mastery of "intention." But this is a very deep topic. If you are drawn to the theory of criminal law or the theory of torts or to constitutional theory or statutory interpretation, you will want to know more about "intent." Hopefully, this entry will get you started. Saturday, January 01, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Patterns of American Jurisprudence by Neil Duxbury. Here is a description:
Download of the Week The Download of the Week is A Theory of Legal Strategy (Duke Law Journal, Vol. 49, No. 6, April 2000) by Lynn M. LoPucki and Walter O. Weyrauch . Here is the abstract:
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