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

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Monday, January 31, 2005
 
Monday Calendar
    Loyola Marymount University, Loyola Law School: Jeffrey J. Rachlinski, Professor of Law, Cornell Law School, "Can Judges Ignore Inadmissible Information: The Difficulty of Deliberately Disregarding".
    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
    LICENSE TO HARASS: LAW, HIERARCHY, AND OFFENSIVE PUBLIC SPEECH, by Laura Beth Nielsen. Princeton: Princeton University Press, 2004. 224pp. Cloth $35.00 / £22.95. ISBN: 0691-11985-6. Reviewed by Steven B. Lichtman.
    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
    Monday, January 31
      Loyola Marymount University, Loyola Law School: Jeffrey J. Rachlinski, Professor of Law, Cornell Law School, "Can Judges Ignore Inadmissible Information: The Difficulty of Deliberately Disregarding".
      NYU Law School: Rachel Barkow, Federalism and the Politics of Sentencing.
      UCLA School of Law: Leti Volpp, UCLA School of Law, "Engendering Culture".
    Tuesday, February 1 Wednesday, February 2
      Oxford Centre for Socio-Legal Studies: Kriti Kapila, Legal Culture: Bringing the Theoretical and Empirical Closer Together: The Measure of a Tribe: The Cultural Politics of Constitutional (Re)Classification in North India
      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.
    Thursday, February 3 Friday, February 4
      Case Western Reserve University School of Law: Symposium, Eminent Domain, Urban Renewal and the Constitution - Legal & Policy Perspectives.
      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:
        Dr. Kamal Hossain, & H.E. Judge C. G. Weeramantry, Globalisation & Sustainable Development Law: Book Launch Reception for ‘Sustainable Development Law: Principles, Practices and Prospects’.
        Prof. Irene Dankleman (The Netherlands), Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : The Challenge of Gender: Towards a Common Future.
      Texas Law Review Symposium on Water Law, "Of Water Banks, Piggybanks, and Bankruptcy: Changing Directions in Water Law, a Symposium on New Approaches to Institutional Management and Design"
      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
    Introduction Early on in law school, law students begin to realize that legal norms are not all cut from the same cloth. Some rules provide "bright lines," others "fuzzy lines," and yet others, no lines at all. The "reasonable person" test in tort law constrains in a very different way than does the rule against perpetuities in property. That is, legal norms differ in extent to which they constrain those who are charged with applying them.
    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 are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant.
    • Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; for example, a standard may provide a framework for balancing several factors.
    • Principles are less constraining still. Principles provide mandatory considerations judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a nonexhaustive set, leaving open the possibility that other considerations may be relevant to the decision.
    This post provides an introduction to rules, standards, and principles for law students (especially first-year law students) with an interest in legal theory.
    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:
      In one torts casebook, for instance, Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite sides of a railroad crossing dispute. They disagree about what standard of conduct should define the obligations of a driver who comes to an unguarded railroad crossing. Holmes offers a rule: The driver must stop and look. Cardozo rejects the rule and instead offers a standard: The driver must act with reasonable caution. Which is the preferable approach? Holmes suggests that the requirements of due care at railroad crossings are clear and, therefore, it is appropriate to crystallize these obligations into a simple rule of law. Cardozo counters with scenarios in which it would be neither wise nor prudent for a driver to stop and look. Holmes might well have answered that Cardozo's scenarios are exceptions and that exceptions prove the rule. Indeed, Holmes might have parried by suggesting that the definition of a standard of conduct by means of a legal rule is predictable and certain, whereas standards and juries are not. This dispute could go on for quite some time.
    Here are some basic ideas about the appropriateness of rules, standards, and principles:
    • Predictability and certainty. If your goal is ex ante predictability and certainty, then rules are usually the way to go. Predictability and certainty are particularly important when the law seeks to guide future conduct. For example, if we want to deter particular forms of conduct, we may do better to define the conduct in a rule (or in a set of rules) that would enable those who engage in the conduct to clearly see that the proscribed conduct is forbidden. Standards provide less guidance, and principles, almost no guidance at all.
      Fairness and sensitivity. On the other hand, if our goal is to insure ex post fairness, then standards may be the way to go. Standards permit flexibility and the consideration of mitigating circumstances. Rigid rules are likely to lead to unfairness in particular cases, because it may be difficult to define in advance all of the circumstances which should count as exceptions to the rule.
      The job of principles. Principles seem best suited for another sort of legal task. Principles cut across doctrinal fields. The same principle--one may not benefit from one's own wrong, for example--may apply in torts, contracts, and the law of wills. Thus, principles are particularly well suited to give legal form to concerns which operate in a wide variety of particular contexts.
    Conclusion Legal theorists need to be able to identify rules, standards, and principles, and more importantly, to be able to argue the pros and cons of formulating legal norms in these standard forms. The main goal of this post has been to enable you to distinguish a rule from a standard and to see that principles operate in a different way than either rules or principles. I also hope that the post has provided you with some tools that will enable you to make arguments like: “this rule would better be reformulated as a standard, because . . ." And arguments, like, “that legal norm really isn't a standard at all, it is better described as a principle.” I've provided some additional references, for those who want to pursue these ideas further.
    References
      Baird & Weisberg, Rules, Standards, and the Battle of the Forms: A Reassessment of § 2-207, 68 Virginia Law Review 1217 (1982).
      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).
    • Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985).


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:
    Larry Sager's book "Justice in Plainclothes" explains that our constitutional practice has a "durable moral shortfall." Judges do not fully enforce the Constitution, and the Constitution does not fully replicate political justice. This review essay critiques the latter gap, and argues that our constitutional practice need not be read as falling short of what political justice demands. Although most of us are legal positivists at least to the extent that we believe law does not fully overlap with morality, we need not similarly be constitutional positivists, that is, we need not similarly believe that our constitutional practice does not fully overlap with political justice. The review essay contrasts a skeptical view of law's reach with a more aspirational view of constitutionalism; evaluates Sager's arguments for the first gap, i.e., "judicial underenforcement"; and then critiques the case for the gap between the Constitution and political justice. In part the case for the gaps turns on a theory of democracy that requires a robust role for the citizenry in fleshing out the contours of what political justice demands; the review essay argues that such a role can be maintained even if we view our Constitution as coextensive with political justice.
Download it while its hot!


 
Legal Theory Bookworm The Legal Theory Bookworm recommends Natural Law and Practical Rationality by Mark Murphy. Here is a description:
    According to the natural law account of practical rationality, the basic reasons for actions are basic goods that are grounded in the nature of human beings. Practical rationality aims to identify and characterize reasons for action and to explain how choice between actions worth performing can be appropriately governed by rational standards. Natural Law and Practical Rationality is a defense of a contemporary natural law theory of practical rationality, demonstrating its inherent plausibility and engaging systematically with rival egoist, consequentialist, Kantian and virtue accounts.


Friday, January 28, 2005
 
Lipkin on Federalism Robert Justin Lipkin has posted Federalism as Balance on SSRN. Here is the abstract:
    Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore can play no identifiable analytic role in either conceptualizing or resolving federalist conflicts. The failure of federalism as balance to be an analytically sound element in understanding federalism is an additional reason for reexamining the political safeguards argument for enforcing federalism. Without sufficient analytic content, federalism as balance is merely a rhetorical device which legislators can use just as well or as poorly as judges.


 
Friday Calendar
    Royal Institute of Philosophy (London): G A Cohen, Terrorism.
    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.
      Faculty Moderator: Kirk J. Stark, UCLA School of Law Charlotte Crane, Northwestern University School of Law, Designing Taxes with Wealth in Mind: Some Original Understandings Ajay Mehrotra, Indiana University School of Law, Creating the Modern American Fiscal State: Progressive-Era Economists and the Intellectual Foundations of the U.S. Income Tax Commentator: Steve Bank, UCLA School of Law Marjorie Kornhauser, Tulane Law School, Choosing a Tax Rate Structure in the Face of Disagreement. Commentator: Eric Rakowski, UC Berkeley School of Law (Boalt Hall) Lawrence Zelenak, Duke Law School, Tax or Welfare? The Administration of the Earned Income Tax Credit Commentator: Lily Batchelder, NYU School of Law Jonathan Baron & Edward McCaffery, University of Pennsylvania and USC Law School The Political Psychology of Redistribution Commentator: William Blatt, University of Miami Law School Richard Bird & Eric Zolt, Rotman School of Management, University of Toronto and UCLA School of Law, Redistribution via Taxation: A New Perspective for Developing Countries Commentator: Arnold Harberger, UCLA Economics Department


 
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:
    Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. Recently the Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This Case Study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and physicians for the provision of services to enrollees reduces medical malpractice insurance premiums. Policymakers interested in reducing premiums should consider implementing MCO-physician contract disclosure requirements as a means to their desired end.


 
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:
    This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations. We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role of the courts and the executive in foreign affairs. This functional approach suggests that the executive branch can more effectively achieve the purpose behind the ATS. Critics of this approach have argued that a jurisdictional approach to the ATS would disrupt American foreign relations by allowing the states, rather than a single federal judiciary, to make and enforce CIL. The Court's recent decisions, however, address this concern by permitting presidential declarations of international policy to preempt state law. Thus, CIL could continue as part of the common law of the states enforceable in state court or through diversity jurisdiction in federal court subject to federal preemption by the President.


 
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:
    This article, an expanded version of the Monsanto Lecture given at Valparaiso University School of Law in early 2004, coins a phrase to complement enterprise liability. Traditional enterprise liability theory conceived of accident victims as passive, the mere recipients of what business does to them. Their advocates were also viewed as passive. In a new century, however, the enterprise of liability - the plaintiffs' bar - has emerged as a robust, aggressive source of what both injured individuals and the American public demand. Commentary attacking the plaintiffs' bar as entrepreneurial (a term almost always used pejoratively) notwithstanding, the enterprise of liability deserves credit for the two social goods associated with entrepreneurial endeavor - wealth and choice - and should be lauded by anyone who lauds free enterprise.


 
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:
    This article identifies a moral anomaly the Supreme Court has created in recent cases interpreting Congress’s remedial powers under the Fourteenth Amendment. It shows that the Court has unwittingly decided that the Constitution today does not authorize as much federal protection for constitutional rights and equality as it provided in the nineteenth century to protect the property rights of slave owners in their slaves. Before the Civil War, Congress enacted two statutes that enforced slave owners' constitutionally secured property rights with civil remedies, including a civil fine and tort damages, and criminal penalties applicable to anyone who interfered with the slave owner's constitutional right to recover fugitive slaves. Congress also created an elaborate federal enforcement structure. The United States Supreme Court upheld these statutes and Congress's plenary power to enact them before slavery was abolished by the Thirteenth Amendment. This article shows that the framers of the Civil Rights Act of 1866 and Fourteenth Amendment used these legislative and judicial precedents to insist that Congress had to possess plenary power to enforce the fundamental rights and equality of all Americans. It also shows that the framers acted on this presumption and exercised this plenary power by enacting the Civil Rights Act of 1866, by which they enforced the civil rights of United States citizens with the civil and criminal remedies and enforcement provisions of the Fugitive Slave Acts. To ensure the constitutionality of the Civil Rights Act, the framers expressly incorporated it into the Fourteenth Amendment. However, the Supreme Court's recent decisions hold that Congress does not possess the power to enforce the substantive rights secured by the Fourteenth Amendment that earlier Congresses exercised, with the Supreme Court's approval, to enforce the constitutionally secured property rights of slaveholders. The Supreme Court has thereby placed itself in the morally untenable position of affirming greater constitutional protection for the property rights of slave owners before the Civil War than it is willing to affirm for the protection of the fundamental rights and equality of all Americans today.


Thursday, January 27, 2005
 
Thursday Calendar
    Yale Legal Theory Workshop: John Witt, Columbia (Law), Crystal Eastman and the Internationalist Beginnings of American Civil Liberties.
    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:
      There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and would otherwise not die soon. The justification in such a case presumably must appeal to the dire consequences that would ensue if the person were not killed. It is the necessity of averting consequences much worse than a single death that would justify the wrong done to the person killed. In other instances of permissible killing, however, the justification appeals to more than considerations of consequences. It may appeal in addition to the claim that the person to be killed has acted in such a way that to kill him would neither be unjust nor wrong him or violate his rights (assuming that killing him would be necessary for and proportionate to a just or legitimate aim, such as self-defense). In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability both in criminal law and in the law of torts, my concern in this article is with moral rather than legal liability. Liability, as I understand it, encompasses but is not limited to desert. If a person can deserve to be killed, it follows that he is liable to be killed, but he can be liable to be killed without deserving to be killed. My focus here will be on forms of liability that do not involve desert; I will not consider cases of punitive or retributive killing. My focus will instead be primarily on liability to defensive killing, though I will also consider whether there can be liability to killing that preserves life or prevents harm but is not strictly defensive because the person to be killed is not the cause of the threat to be averted. Liability, of course, also extends to forms of harmful treatment other than killing, but for simplicity of exposition I will focus on moral liability to be killed. Much of what I will say, however, can be generalized, mutatis mutandis, to other forms of harming.
    Florida State University, College of Law: Seanna Shiffrin, UCLA "What's Wrong with Compelled Associations?".
    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:
    Larry Sager's book "Justice in Plainclothes" explains that our constitutional practice has a "durable moral shortfall." Judges do not fully enforce the Constitution, and the Constitution does not fully replicate political justice. This review essay critiques the latter gap, and argues that our constitutional practice need not be read as falling short of what political justice demands. Although most of us are legal positivists at least to the extent that we believe law does not fully overlap with morality, we need not similarly be constitutional positivists, that is, we need not similarly believe that our constitutional practice does not fully overlap with political justice. The review essay contrasts a skeptical view of law's reach with a more aspirational view of constitutionalism; evaluates Sager's arguments for the first gap, i.e., "judicial underenforcement"; and then critiques the case for the gap between the Constitution and political justice. In part the case for the gaps turns on a theory of democracy that requires a robust role for the citizenry in fleshing out the contours of what political justice demands; the review essay argues that such a role can be maintained even if we view our Constitution as coextensive with political justice.
And here is a bit more from the paper itself:
    Our Constitution’s preamble is ambitious: “We the people of the United States, in order to form a more perfect union,4 establish justice, insure domestic tranquility, provide for the commondefense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” These are aspirations of a liberty-loving, justice-seeking people. To achieve these aspirations, and to preserve both citizen sovereignty and a republican form of government, our constitutional text and our constitutional law both enables and disables our governmental agents. But although we should acknowledge the inevitable agency costs of the lawmaking process, and thus adopt a posture of legal positivism, with its gaps, regarding ordinary law, we should construe our Constitution as aspiring to reduce such costs to zero. Reading our Constitution as aspiring to the ends of political justice is another way of saying that the power we delegate to our agents should match the original scope of our liberty as principals. One implication of this argument is that constitutional interpretation must be ultimately about justification, and not fit.
Greene must mean "implication" in a very loose sense. Why? Because the fact that the preamble embodies lofty aspirations does not entail the conclusion that the Constitutional text does not constrain legitimate constitutional interpretation. Some further argument is obviously required. Here is a bit more from Greene:
    [C]onstitutional interpretation (by courts or otherwise) must ultimately be about justification, and not about fit. Even an “account” of our constitutional practice, which Sager claims to be offering, cannot in the end rest on connecting the dots of text, precedent, etc. An account of our constitutional practice is an interpretive enterprise, and like any interpretive enterprise (including constitutional interpretation in any given case or instance), justification and fit are not equally important. Although fit points – such as text, precedent, etc. – are relevant to understanding the normative questions, they cannot resolve the ultimate question of any interpretive enterprise, which is reaching the most justifiable understanding of the matter under interpretation. In other words, interpretation is, in the end, irreducibly current – the interpreter has to make a final judgment call about how best to read the text or practice in question, and deferring to other sources of authority, past or present, is always a mask for sub rosa normative determinations by the interpreter.
I must confess that I don't see how Greene's argument is intended to work. Let's concede his premise: "the ultimate question of any interpretive enterprise . . . is reaching the most justifiable understanding of the matter under interpretation." You, gentle reader, undoubtedly have already seen the two points I am about to make:
    First, even Greene's formulation places "justification" in a subordinate role: "the most justifiable understanding of the matter under interpretation" assumes the hermeneutic priority of the matter under interpreation--in the case of the Constitution, that is the constitutional text (and perhaps some constitutional practices as well). What we are interpreting is is the text, and hence for something to count as an interpretation, it must be an interpretation of the text and hence must fit the text. Second, "the most justifiable understanding" is not necessarily the interpretatoin that is morally most attractive. What is or isn't most justifiable is a meta-level question. It may be that the best theory of constitutional interpreation will conclude that the interpretation most closely anchored to formal considerations (text, original meaning, precedent, etc.) is the most justifiable. Or to put it more directly, the most justificiable constitutional interpretations may well be interpretations that prioritize the Dworkinian dimension of fit and demphasize the dimension of justification. One needs a normative constitutional theory to settle the issue.
There is much more that is interesting and rewarding in Greene's fine paper. Highly recommended!


 
Call for Papers: Development
    SOCIETY FOR SOCIALIST STUDIES ENVIRONMENTAL STUDIES ASSOCIATION OF CANADA and CANADIAN ASSOCIATION FOR THE STUDY OF INTERNATIONAL DEVELOPMENT invite paper proposals for a joint session at Congress 2005 June 2-4 2005 University of Western Ontario, London Rethinking "Development": The Challenge of Global Democracy "Development" promised that everyone could be rich, without anyone ever having to get poorer. The rich could keep getting richer while the poor, if only in some indefinite future, "caught up". This promise assumed that neither the ecosystem nor the social system imposed any hard limits on the business of enrichment - an assumption that has proven false. Thus, the challenge of global democracy: rethinking "development" when some must become poorer if all are to achieve comparable prosperity, and where total production must decline if any are to survive. Papers are invited which present ways to conceptualize, measure, promote, organize and fight for globally democratic "development". Paper proposals must include author's name, e-mail and mailing address, institutional affiliation (where applicable), voice and fax phone numbers. A title and abstract of not more than 100 words must be included with all proposals, but longer proposals and full papers are welcome. Proposals should be sent to the session coordinator, Chris Borst, at: Email (preferred): chris.borst@utoronto.ca (.pdf, .rtf, .doc, .html, .txt) Mailing Address: Site 110 Box 45 RR#1, Dryden, ON, P8N 2Y4 Fax: (807) 938-6903 EXTENDED DEADLINE: February 11, 2005


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 Socio-Legal Studies: Denis Galligan, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Legal Culture, or How to Take Law Seriously.
    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:
      In this essay, I want to revisit the protracted, inconclusive and sometimes unedifying debate prompted by Hart’s famous claim in the Preface to The Concept of Law that the book might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Drawing on my work on Hart’s biography, I shall review his own reflections on the claim, the arguments in legal theory to which his claim gave rise, and the reasons for thinking that the structure of his own theory prevented him from following through on the insights from which his claim proceeded. My motivation is not, however, primarily that of the biographer or intellectual historian. Rather, this general interpretive question about Hart connects with some long-standing interests which have informed my own work in jurisprudence and criminal law theory. So, while bearing in mind Freud’s view of the biographer’s relationship with his or her subject as ‘a heady brew of Oedipal triumph and sibling rivalry’(!), I shall use my engagement with Hart’s biography and intellectual legacy as the jumping off point for a further examination of the relationship between what have come to be called ‘internal’ and ‘external’ approaches to legal theory, and about the relative contributions of philosophy, history and the social sciences to our systematic understanding of the nature of law. Are legal philosophers justified in regarding sociological legal theorists as playing an entirely different game or, to put the question in Kornhauser’s terms, does it make sense to seek a theory of the ‘legal order’ independent of a theory of the ‘legal regime’?
    NYU Legal History: James Jacobs, NYU School of Law.
    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:
    Economists are often skeptical concerning the economic effects of various forms of human rights: it has been argued that basic human rights can make the legal system less efficient but also that extensive social rights are incompatible with market economies. It is argued here that basic human rights are a precondition for other kinds of rights such as property and civil rights and that they are thus efficiency-enhancing. Four different groups of rights are identified. It is asked what effects they have on welfare and growth. The transmission channels through which the different rights affect welfare and growth are identified by estimating their effects on investment in both physical and human capital and overall productivity. Basic human rights have indeed a positive effect on investment, but do not seem to contribute to productivity. Social or emancipatory rights, in turn, are not conducive to investment in physical capital but do contribute to productivity improvements. None of the four groups of rights ever has a significant negative effect on any of the economic variables here included.


 
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:
    This short essay analyzes the policy challenges of legally conforming the behavior of warez traders. The essay discusses the motivations for warez trading, how criminalizing the behavior may counterproductively encourage it, and why legislators and prosecutors continue to target warez trading despite the counterproductive effects.


 
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:
    The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm. This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the Harvard Medical Practice Study, shows that the quality of health care improves as the risk of being sued rises; none of it shows that malpractice lawsuits cause the quality of health care to decline. The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded. The central causes of the high error rates that persist in the health care sector appear to be providers' defective incentives and professional norms. Providers lose money when quality improves, and their norms discourage the creation of non-punitive working environments in which efforts to improve quality can flourish. The business case for quality is missing, and providers' attitudes are antithetical to quality improvement. The tort system's major deficiency is its failure to subject providers to sufficient economic pressure to overcome these impediments. The cause of this shortcoming is the rarity with which injured patients assert legal claims.


 
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:
    Pay Without Performance: The Unfulfilled Promise of Executive Compensation by Harvard law professor Lucian Bebchuk and UC Berkeley law professor Jesse Fried is an important contribution to the literature on executive compensation. Bebchuk and Fried's positive account of executive compensation is entirely managerialist; i.e., they argue that top management of public corporations so thoroughly control the board of directors that the former are able to extract compensation packages from the latter far in excess of that which would obtain under arms'-length bargaining. In this review essay, I argue that Bebchuk and Fried overstate the extent to which management controls the compensation process. I also argue that they have not made a convincing case for the reforms to corporate governance they propose.


 
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Dany Priel, Rights, Autonomy, and Practical Reasoning.
    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


 
Conference Announcement: Meeting the Challenge of Grutter
    "Meeting the Challenge of Grutter: Affirmative Action in Twenty-Five Years" Thursday, February 24, 2005
      8:30 am Registration and coffee. 9:30 am Welcome: john a. powell, Professor of Law and Director, Kirwan Institute for the Study of Race and Ethnicity Introduction: Nancy Rogers, Dean, Mortiz College of Law 10:00 am Panel 1: The Practicality and Legitimacy of the Challenge 12:00 pm Lunch 2:00 pm Panel 2: The Current State of Affirmative Action
    Friday, February 25, 2005
      8:30 am Coffee 9:00 am Panel 3: New and Emerging Education Reform Trends 11:00 am Panel 4: Implementing Change to Meet Our Goals 12:30 am Lunch 2:00 pm Keynote Presentation: Charles Ogletree, Professor of Law, Harvard University; Director, Charles Hamilton Houston Institute for Race and Justice 3:00 pm Adjournment and Reception


Sunday, January 23, 2005
 
Legal Theory Calendar
    Monday, January 24 Tuesday, January 25
      Oxford Jurisprudence Discussion Group: Dany Priel, Rights, Autonomy, and Practical Reasoning.
      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?
    Wednesday, January 26
      Oxford Centre for Socio-Legal Studies: Denis Galligan, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Legal Culture, or How to Take Law Seriously.
      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.
    Thursday, January 27
      Yale Legal Theory Workshop: John Witt, Columbia (Law), Crystal Eastman and the Internationalist Beginnings of American Civil Liberties.
      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:
        There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and would otherwise not die soon. The justification in such a case presumably must appeal to the dire consequences that would ensue if the person were not killed. It is the necessity of averting consequences much worse than a single death that would justify the wrong done to the person killed. In other instances of permissible killing, however, the justification appeals to more than considerations of consequences. It may appeal in addition to the claim that the person to be killed has acted in such a way that to kill him would neither be unjust nor wrong him or violate his rights (assuming that killing him would be necessary for and proportionate to a just or legitimate aim, such as self-defense). In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability both in criminal law and in the law of torts, my concern in this article is with moral rather than legal liability. Liability, as I understand it, encompasses but is not limited to desert. If a person can deserve to be killed, it follows that he is liable to be killed, but he can be liable to be killed without deserving to be killed. My focus here will be on forms of liability that do not involve desert; I will not consider cases of punitive or retributive killing. My focus will instead be primarily on liability to defensive killing, though I will also consider whether there can be liability to killing that preserves life or prevents harm but is not strictly defensive because the person to be killed is not the cause of the threat to be averted. Liability, of course, also extends to forms of harmful treatment other than killing, but for simplicity of exposition I will focus on moral liability to be killed. Much of what I will say, however, can be generalized, mutatis mutandis, to other forms of harming.
      Florida State University, College of Law: Seanna Shiffrin, UCLA "What's Wrong with Compelled Associations?".
      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?
    Friday, January 28
      Royal Institute of Philosophy (London): G A Cohen, Terrorism.
      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.
        Faculty Moderator: Kirk J. Stark, UCLA School of Law Charlotte Crane, Northwestern University School of Law, Designing Taxes with Wealth in Mind: Some Original Understandings Ajay Mehrotra, Indiana University School of Law, Creating the Modern American Fiscal State: Progressive-Era Economists and the Intellectual Foundations of the U.S. Income Tax Commentator: Steve Bank, UCLA School of Law Marjorie Kornhauser, Tulane Law School, Choosing a Tax Rate Structure in the Face of Disagreement. Commentator: Eric Rakowski, UC Berkeley School of Law (Boalt Hall) Lawrence Zelenak, Duke Law School, Tax or Welfare? The Administration of the Earned Income Tax Credit Commentator: Lily Batchelder, NYU School of Law Jonathan Baron & Edward McCaffery, University of Pennsylvania and USC Law School The Political Psychology of Redistribution Commentator: William Blatt, University of Miami Law School Richard Bird & Eric Zolt, Rotman School of Management, University of Toronto and UCLA School of Law, Redistribution via Taxation: A New Perspective for Developing Countries Commentator: Arnold Harberger, UCLA Economics Department


 
Legal Theory Lexicon: Social Welfare Functions
    Introduction One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare functions are expressed in mathematical notation, but there is no reason to be intimidated. The basic ideas are easily grasped and the mathematical notation can be mastered in just a few minutes. This post provided an introduction to the idea of the social welfare function for law students, especially first year law students, with an interest in legal theory. Here we go!
    Background
      Normative Economics The idea of a social welfare function is part of normative economics. There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (if not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing. But this apparent agreement is at a very abstract and ambiguous level. There are many different ideas about what "utility" is.
      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:
        Ui(P) = 80 Ui(Q) = 120
      The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, utilitarianism is the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability. This point about utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory.
      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.
    Social Welfare Functions Suppose that we allow full interpersonal comparability and cardinal utility information. This is sufficient to support what are called Bergson-Samuelson utility functions, which have the form:
      W(x) = F (U1(x), U2(x), . . . UN(x))
    Where
      W(x) represents a real number social utility value for some state of affairs (or possible world) X,
      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.
    Bergson-Samuelson social welfare functions are named after Paul Samuelson and Avram Bergson.
    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:
      Classical-utilitarian SWF--We could substitute summation for F, and simply add the individual utility values; this is sometimes called a Benthamite or classical-utilitarian social welfare function famously associated with Jeremy Bentham. The classical utility social welfare function can be represented as follows:
        W(x)={U1(x) + U2(x) + U(3(x) . . . Un(x)}
      Average-utilitarian SWF--The classical SWF adds the utilities. This raises some very interesting issues when the different states of the world (x or y) have different population sizes. When deciding whether to add additional individuals, the classical-utilitarian SWF says more is better until we reach the point where adding more actually reduces the overall level of utility. One way to avoid this implication is use the average level of utility instead of the sum, as in the following formula:
        W(s){[U1(x) + U2(x) + U(3(x) . . . Un(x)]/n}
      In other words, we divide the sum of utilities by the number of individuals!
      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:
        W(x)={U1(x) * U2(x) * U(3(x) . . . Un(x)}
      Rather than adding individual utilities, we multiply them! And yes, the "Nash" in Bernoulli-Nash is John Nash of "A Beautiful Mind" fame.
    What About the Problem of Interpersonal Comparison? Social welfare functions are much discussed in legal theory these days. One of the reasons for the contemporary debate over social welfare functions is that this approach has been championed by Louis Kaplow and Steven Shavell (both of the Harvard Law School). Their book, Welfare versus Fairness, has put the welfarist approach to normative economics "front and center."
    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:
    One of the most salient features of our culture is that there is so much bullshit. Everyone knows this. Each of us contributes his share. But we tend to take the situation for granted. Most people are rather confident of their ability to recognize bullshit and to avoid being taken in by it. So the phenomenon has not aroused much deliberate concern. We have no clear understanding of what bullshit is, why there is so much of it, or what functions it serves. And we lack a conscientiously developed appreciation of what it means to us. In other words, as Harry Frankfurt writes, "we have no theory." Frankfurt, one of the world's most influential moral philosophers, attempts to build such a theory here. With his characteristic combination of philosophical acuity, psychological insight, and wry humor, Frankfurt proceeds by exploring how bullshit and the related concept of humbug are distinct from lying. He argues that bullshitters misrepresent themselves to their audience not as liars do, that is, by deliberately making false claims about what is true. In fact, bullshit need not be untrue at all. Rather, bullshitters seek to convey a certain impression of themselves without being concerned about whether anything at all is true. They quietly change the rules governing their end of the conversation so that claims about truth and falsity are irrelevant. Frankfurt concludes that although bullshit can take many innocent forms, excessive indulgence in it can eventually undermine the practitioner's capacity to tell the truth in a way that lying does not. Liars at least acknowledge that it matters what is true. By virtue of this, Frankfurt writes, bullshit is a greater enemy of the truth than lies are.


 
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:
    In Ethics: Inventing Right and Wrong, John Mackie subsumed the difficulties he claimed to see in the idea of ethical objectivity under two heads. First there was the metaphysical peculiarity of such things as values or obligations, this peculiarity importing the need to postulate a faculty of moral intuition for the detection of obligations and the value-properties G.E. Moore called non-natural properties. Secondly there was the “variability of some important starting points of moral thinking and their apparent dependence on actual ways of life” (49) ? “the well known variation in moral codes from one society to another and from one period to another, and also the difference in moral beliefs between different groups and classes within a complex community” (36). These difficulties are sharply stated and still on the record. Under the names Mackie gave them of queerness and relativity, they are still at work in philosophy.
This paper will be good for you!


 
Saturday 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 & yesterday):
      9:30 – 12:30, Session III: Administrative Law and Process Beyond our Borders, Part 2.
        Panel chair (& discussant): Peter Cowhey Presenters:
          Thomas Ginsburg, “Administrative Law in Northeast Asia: Causes and Consequences of Judicialization” Yoav Dotan, “Making Consistency Consistent” Matthew Palmer, “Administrative Law and Constitutional Realism in New Zealand”
        Discussants:
          David Law Michael Thies
      2:30 – 5:30 Session IV: “Big Picture” Perspectives on Administrative Law and Process, Part 2
        Panel chair (& discussant): Mathew McCubbins Presenters:
          Martin Shapiro, “Some Free Associations on Administrative Judicial Review” Orly Lobel, “Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety” Jeeyang Baum, “Locking in or Cracking Open? A Reinterpretation of the U.S. Administrative Procedure Act” Rui de Figueiredo, “The Political Economy of State Level Administrative Procedure Acts”
        Discussants:
          Elizabeth Garrett Matthew Spitzer


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:
    The publication of Meir Dan-Cohen's collected essays provides a welcome opportunity to reflect on a career of innovative and influential scholarship in criminal law and legal philosophy. By addressing his works collectively I hope to unearth creative tensions between arguments framed at different times and in response to different concerns, tensions not visible when the arguments are taken one at a time. Part I of this Review discusses the essays Harmful Thoughts and Defending Dignity; Part II centers on Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law and Responsibility and the Boundaries of the Self; Part III turns to In Defense of Defiance and Conceptions of Choice and Conceptions of Autonomy. Each pair of essays reveals a tension within Dan-Cohen's ideas surrounding the purposes and limits of the criminal law and the meaning and value of human autonomy. I will attempt through an exploration of his ideas to sketch some of my own, ideas which preserve and synthesize his many insights while avoiding many of their conflicting implications. I only hope my discussion will be helpful and not merely harmless.


 
Friday Calendar
    Oxford Institute of European and Comparative Law: Stefan Vogenauer, Inaugural Lecture: A European Legal Method: Should We, Could We, Would We?
    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):
      9:30 – 12:30 Session I: Administrative Law Beyond our Borders, Part I
        Panel chair (& discussant): Dan Rodriguez Presenters:
          George Bermann, “The Impact of EU Administrative Law on French Administrative Law” Francesca Bignami, “Creating Rights in the Age of Global Governance: Mental Maps and Strategic Interests in Europe” Peter Strauss, “Rulemaking in the European Union”
        Discussants:
          Matthew Palmer Martin Shapiro
      2:30 – 5:30, Session II: “Big Picture” Perspectives on Modern Administrative Law and Process, Part I
        Panel chair: Michael Rappaport Presenters:
          Mariano-Florentino Cuellar, “Rethinking Regulatory Democracy” Ed Rubin, Dangerous Clients: A Phenomenological Solution to Bureaucratic Oppression” Mark Seidenfeld, “Agency Decisions to Regulate”
        Discussants:
          Gerald Mackie Roger Noll Barry Weingast


 
Hathaway Debates Posner at Legal Affairs Alice Dong emails:
    In their forthcoming book, The Limits of International Law, Eric A. Posner and Jack L. Goldsmith argue that current international law reflects the self-interest of powerful nations and lacks the capacity to influence their actions. Enforcing the rules of institutions like the International Criminal Court that promote universal moral standards is, they argue, nearly impossible. But it's also widely believed that such law is essential in an increasingly globalized world. Is international law really powerless? In this week’s Legal Affairs Debate Club Oona Hathaway challenges Eric Posner on these issues. Here’s the link: http://www.legalaffairs.org/webexclusive/debateclub_.msp


Thursday, January 20, 2005
 
Thursday Calendar


 
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:
    Any person or entity that sells, offers for sale, advertises, distributes, disseminates, provides, or otherwise makes available peer-to-peer file sharing software that enables its user to electronically disseminate commercial recordings or audiovisual works via the Internet or any other digital network, and who fails to exercise reasonable care in preventing use of that software to commit an unlawful act with respect to a commercial recording or audiovisual work, or a violation of Section 311.1, subdivisions (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 502 is punishable, in addition to any other penalty or fine imposed, by a fine not exceeding two thousand five hundred dollars ($2,500), imprisonment in a county jail for a period not to exceed one year, or by both that fine and imprisonment.(b) As used in this section, "peer-to-peer file sharing software" means software that once installed and launched, enables the user to connect his or her computer to a network of other computers on which the users of these computers have made available recording or audiovisual works for electronic dissemination to other users who are connected to the network. When a transaction is complete, the user has an identical copy of the file on his or her computer and may also then disseminate the file to other users connected to the network.
The problem, of course, is that the Internet iself is a P2P program. What we call P2P programs simply provide a convenient interface for the capacities built into the architecture of the Internet itself. As Felten puts it:
    That definition clearly includes the web, and the Internet itself, so that any software that enabled a user to connect to the Internet would be covered. And note that it's not just the author or seller of the software who is at risk, but also any advertiser or distributor. Would TechDirt be committing a crime by linking to my TinyP2P page? Would my ISP be committing a crime by hosting my site?
Sometimes we say that the P2P genie is out of the bottle, but that really isn't quite accurate. The genie never was in the bottle; once the Internet existed, so did P2P.


 
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:
    This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen remedies. In many respects, Overton Park marked the turn. It was an example, as well, of the success of highly motivated recent law school graduates in contributing to major developments in national law. If for that reason alone, it is a fitting subject for a collection of essays intended to give students a more concrete sense of their subject. Stories are uniquely the product of a narrator's vision. For a case, like this one, that has appeared to different participants in remarkably different ways, what seems appropriate is to attempt to see how the course of events leading to decision in Overton Park might have appeared through a number of eyes. Of course, the reader has only one narrator; but he has attempted to people the pages of the essay and evoke their varying perspectives as faithfully as his research and capacity for empathetic understanding permit. Much of what follows draws on an earlier essay, Revisiting Overton Park, which appeared in the pages of the UCLA Law Review in 1992 and on the sensitive story-setting "reply" contributed by Prof. Lucie White. The release of the papers of Justices Blackmun, Brennan and Marshall for public view, and the availability of transcripts of oral argument in the United States Supreme Court library and litigation files in the possession of CPOP Attorney John Vardaman, have permitted supplementing the 1992 account.


 
Confirmation Wars Department Over at law.com, T.R. Goldman has a piece entitled Handicapping Bush's Judicial Nominations. Here's a taste:
    While it might seem that the same slate of nominees will mean the same stalemates and the same tired complaints from each side of the aisle, there are fissures beneath the surface that could open the logjam for at least a few of the nominees. A relatively simple compromise could be brokered with the White House that could free up as many as four judges on the 6th U.S. Circuit Court of Appeals. And a few other judges might get a pass if Democrats get something worthwhile in return. In addition, there is the new chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa., who says that he wants to bring his Democratic colleagues into the nominations process.


Wednesday, January 19, 2005
 
Conference Announcement: Some Modest Proposals 2.0
    Some Modest Proposals 2.0 A Conference About Pouring Academic Ideas Into Legislative Bottles Thursday-Friday, February 24-25, 2005 Benjamin N. Cardozo School of Law, 55 Fifth Avenue, NYC, NY 10003 In "Modest Proposals," we invite academics known for advocating thoughtful ways to improve intellectual property, technology, and information law to present ideas from their writing in the form of actual statutory, regulatory, or treaty language. The proposal then receives both scholarly and political commentary in a free-wheeling discussion among professors, current and former Capitol Hill staff, Administration officials, and Washington activists. This year, Modest Proposals 2.0 will have a set of copyright, patent, and privacy law proposals -- and a stellar cast of participants, including many of the founding participants from our first Modest Proposals. Agenda Thursday, February 24, 2005 12:30pm, Registration 1:00pm – 2:30pm, Repairing Copyright’s Fair Use, Michael Madison 2:45pm – 4:15pm, Gag Rules and Information Flows: Or, How to Do Secret Surveillance in an Open Society, Peter Swire 4:45pm – 6:15pm, Patent Law, Drugs, and the Health Crisis in the Developing World, William Fisher III & Talha Syed Friday, February 25, 2005 8:30am – 9:30am, Continental Breakfast 9:00am – 10:30am, A Notice Requirement for DMCA Anti-Circumvention Rules, Pam Samuelson 10:45am – 12:15pm, Patent Fair Use, Dan Burk 2:00pm – 3:30pm, Treating Online Surveillance Like a Wiretap, Susan Freiwald


 
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:
    Judges interpreting statutes evidence a certain ambivalence whether they are interpreting the texts before them as artifacts whose meaning was fixed as of their date of enactment, or as present-day texts whose meaning may be shaped by subsequent events – whether intervening judicial decisions, or the adoption of new statutes (as distinct from amendments, an easy case) whose instructions bear on the issues they present. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council stridently referred the meaning of the Administrative Procedure Act's rulemaking provision back to the political compromise struck at its enactment in 1946; the opinion insisted that judges are not free to vary its terms by common-law improvisations based on their reasoning about the procedural needs of contemporary rulemaking. Motor Vehicle Mfrs' Assn v. State Farm Mutual Auto Ins. Co. almost as impatiently dismissed the argument that judicial standards for reviewing agency rulemakings are those that prevailed when the APA was enacted (equating review of rulemaking with highly permissive review of economic legislation), rather than the "hard look" understandings that had grown up in the 1970s, primarily in the D.C. Circuit. The particular tension has long been a puzzle for administrative law scholars; yet it seems to reflect a general unease about how judges ought best interpret Congress's words as they age. This essay explores that tension, first in the context of thoughts about the judicial-legislative interface appearing in the literature, both today's and yesterday's, and then using the concrete APA example. It argues that in its very occasional forays into the construction of particular statutes, the Supreme Court should accord substantial weight to contemporary consensus the profession and lower courts have been able to develop in interpreting law. The dominant characteristic of particular statutory issues in the Court today is that they are very infrequently, and usually tardily, presented. The Court's certiorari choices, like the contemporary Congress's legislative choices, are driven by the disputes that are live and important at any given moment. If the uncontroversial does not command the Court's attention, it nonetheless becomes a part of the living law known to lawyers advising clients, to Congress choosing its legislative opportunities, to agencies deciding how to make procedural choices, and to lower courts that cannot so easily evade the responsibilities of decision. Were the Court honestly to face the implications of its reservation of authority to choose which statutory issues to consider, it might conclude that its refusal to credit intervening statutory and lower court case-law developments, more than its insistence on a static view of original meaning, profoundly mistakes its proper contemporary role.


 
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:
    Conventional wisdom among contemporary liberal egalitarians is that taxing individuals according to their "endowment" or "earnings capacity" would constitute an unacceptable intrusion on basic human liberties. In effect, the argument goes, such a scheme would result in a type of slavery - in order to pay the tax, people would be forced to accept jobs commensurate with their identified levels of endowment. For example, John Rawls argued that an endowment tax "would force the more able into those occupations in which earnings were high enough for them to pay off the tax; it would interfere with their liberty to conduct their life within the scope of the principles of justice…" This Article examines the Rawlsian objection to endowment taxes and considers whether it can be distinguished from the libertarian claim, advanced most famously by Robert Nozick, that taxation of earnings is unjust because it is "on a par with forced labor." The Article's principal claim is that unless one assigns greater moral value to non-market activities than to market activities (a position arguably in tension with the liberal principle of neutrality as between alternative visions of the good life), there is no difference in kind or in degree between the interference with liberty occasioned by the two types of taxes. It follows from this analysis that if one accepts Rawls's argument regarding endowment taxes, one must also accept Nozick's argument regarding wage taxes. This conclusion presents the liberal egalitarian with a dilemma: she must either (1) embrace endowment taxes as a moral ideal, rejecting the liberty concerns expressed by Rawls and others, or (2) join Nozick in renouncing the ordinary taxation of earnings, a move that would substantially weaken her commitment to egalitarian outcomes. The purpose of the Article is not to resolve this dilemma, but rather to expose some of the tensions inherent in the liberal egalitarian framework and to suggest that consideration of these tensions is necessary to the development of a more satisfactory liberal egalitarian position on questions of taxation and distributive justice. Toward that end, an alternative framework is suggested for assessing the liberty cost of taxation. It is contended that all taxes - whether on income, consumption, wealth, endowment or other tax bases - interfere with individuals' pursuit of the good life. For any given level of revenue to be raised through taxation, the recognition and protection of a liberty interest in one type of activity will simply increase the liberty costs associated with unprotected activities. The liberal instinct to shield non-market activity from taxation does not reduce the liberty cost of taxation, but rather merely shifts it to those whose conceptions of the good life involve the use of markets. This is not to suggest that a concern for personal autonomy should not inform our choice of tax institutions, but rather that the question may ultimately be one of distribution. That is, in fashioning a tax system, how best can we allocate the benefit of being free from taxation's inevitable interference with personal autonomy.


 
Book Announcement: Morton White's From a Philosophical Point of View
    From a Philosophical Point of View: Selected Studies Morton White To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/7900.html One of the most important philosophers of recent times, Morton White has spent a career building bridges among the increasingly fragmented worlds of the humanities, social sciences, and natural sciences. From a Philosophical Point of View is a selection of White's best essays, written over a period of more than sixty years. Together these selections represent the belief that philosophers should reflect not only on mathematics and science but also on other aspects of culture, such as religion, art, history, law, education, and morality. And here is a taste from Chapter One:
      Soon after that I began thinking seriously about Quine's view that epistemology is a branch of psychology; this line of thought led me to believe that the philosopher may view moral thinking in a holistic way and therefore should not limit holism to thinking in natural science. From this I concluded that Quine was on the wrong track when he said, as Carnap had, that philosophy of science is philosophy enough. I also came to realize that James's psychologically oriented investigations of religious experience and Dewey's of artistic creation were philosophical even though they were not exclusively concerned with language, and I saw the error of Wittgenstein's view in his Tractatus that "Psychology is no nearer related to philosophy than is any other natural science."1 This position allowed me to see that philosophy of religion, philosophy of art, philosophy of law, philosophy of history, and philosophy of politics are coordinate with the philosophy of natural science, thereby buttressing a view I had already expressed. In an essay published in the early 1950s,2 I had observed that although there were many mansions in philosophy, the more splendid ones housed metaphysics, logic, epistemology, and ethics, which lived on a commanding hilltop, while somewhere downtown were the two-family dwellings for political philosophy and jurisprudence, the small apartments for esthetics, and the boardinghouses for philosophers of the special sciences. In reaction to this invidious ordering of the philosophical disciplines, I came to think that a more democratic division of housing should be devised, one that provided better quarters for the deprived disciplines. After I came to believe that metaphysics and epistemology were empirical disciplines, I had an even stronger reason for urging this reapportionment since I came to see more clearly that those privileged parts of philosophy could not defend their conclusions by a priori methods. I also came to believe that ethics may be viewed as empirical if one includes feelings of moral obligation as well as sensory experiences in the pool or flux into which the ethical believer worked a manageable structure (to use a James-like figure that Quine had once used when characterizing the purpose of science).
    Cloth | $45.00 / £29.95 | ISBN: 0-691-11959-7


Tuesday, January 18, 2005
 
Tuesday Calendar
    NYU Legal History: James Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, NYU School of Law.
    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:
    One of the great complications of the current marriage debates is the way that federalism and conflict of law issues interact - both at the level of principle and constitutional doctrine - in the area of marriage and divorce. This article begins by looking at federalism in the context of domestic relations at a general level. It then considers how current family law rules and constitutional constraints complicate the analysis. Finally, it considers the way in which recognizing party choice of law might respond to some, but by no means all, of the problems in the area.


 
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:
    Recent theorizing about transnational duties by moral and political philosophers fails to take proper account of the structure of the international legal order. As a result, philosophers have erred in describing international law and in appraising or incorporating it in their theories. This paper offers a construction of international law that advances current debates over international duties and corrects key misconceptions about international law. It views international law as a system of general and special duties among global actors, e.g., states, individuals, and peoples. It then demonstrates that the key duties recognized in treaties and customary law can be justified from an impartialist perspective, i.e., where special ties between dutyholder and rightholder do not alone determine the scope of the duty. The paper then demonstrates shortcomings in some current approaches to international ethics, notably works elaborating justice from a liberal/illiberal divide and calls by cosmopolitans for a major restructuring of international law.


 
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:
    Prevailing notions of corporate responsibility and of the role of law in regulating corporations are based on an underlying, but unarticulated, view of the person and the relation between the person and the world. The unarticulated vision is that of an individual independent and separate from others, motivated by self-interest, and possessing an entitlement to all that is in the world. This author proposes here an alternative vision of the person, one rooted in religion, that sees the communion and interrelatedness of all beings and that sees the things of the world not as entitlement, but as gift. This religious view of the person generates a very different notion of an ideal political and economic order and of corporation responsibility and the role of law in regulating corporations. Whether or not one is persuaded by the religious view of the person articulated herein, the discussion serves to illuminate the need to broaden the terms of the debate over the appropriate role of the law in regulating corporations by looking at the unexpressed underpinnings of the political and legal systems within which we operate.


 
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:
    The conventional view of Rawlsian political philosophy is that the private law lies outside the scope of the two principles of justice - it is not part of the "basic structure" of society which, in this view, is limited to basic constitutional liberties and the state's system of tax and transfer. This narrow view of the basic structure invites the conclusion that Rawlsian political philosophy is neutral with respect to the contemporary debate over the ex ante and ex post conceptions of contract law. We argue, however, that the narrow view is incorrect and the private law is properly understood as subject to the two principles of justice. We argue that individual areas of the private law must be constructed - in conjunction with all other legal and political institutions - in a manner which best meets the demands of the two principles of justice. In our view, the private law, for Rawlsianism, should not be viewed as separable from other areas of law. Despite the confusion in the literature over the narrow view of the basic structure, we maintain that the private law is not independent of the demands of the principles of justice. We argue that private ordering for Rawlsianism is properly understood as one component of an entire scheme of legal and political institutions. Taken as a whole, this scheme (in comparison with all other possible complete schemes of legal and political institutions) best meets the demands of the two principles of justice. Importantly, we also argue that our thesis - that contract law is subject to the two principles of justice - does not imply that either individual contracts or doctrines of contract law answer directly to the two principles of justice. That is to say, individual contracts and rules of contract law need not, in our view, pattern themselves after, nor be read directly off the principles of justice. Instead, we argue that for the Rawlsian, contract law is a matter of (re)distribution, consistent with a post-institutional right to freedom of contract. We understand freedom of contract, for Rawlsianism, to be defined as the scheme of contracting options constructed as open or free (in the post-institutional sense) in conjunction with the overall scheme of legal and political institutions which, when taken as a whole, best serves the demands of the two principles of justice.


Monday, January 17, 2005
 
Monday Calendar


 
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:
    In any job setting, there will be some promotion criteria that are less amenable to measurement than others. Often, if not always, what is difficult to measure is more important. For example, possessing "good judgment" is likely a more significant predictor of success as a law firm partner than the ability to bill a vast amount of hours. The first puzzle that this essay explores is why, in some promotion settings, organizations focus on less important, but measurable, criteria such as hours billed. The answer, we suggest, lies in the relationship between the objectively measurable criteria, on the one hand, and the subjective and less visible, but more important, attributes on the other hand. Under certain circumstances, a competition over the measurable criteria (such as hours billed or number of deals accomplished) can force the revelation of information on hard-to-measure subjective attributes of the candidate. For example, it is easier to evaluate the judgment of an associate who has amassed a number of deals than one who has not. The process of putting together deals likely generates some information about the associate's good and bad judgment. In other words, while we may not think that a large number of billable hours alone should determine who makes partner, making billable hours the goal of a tournament can help generate information more relevant to the partner selection decision. Explaining the first puzzle leads to a second puzzle: Why do we see a rejection of tournaments in job settings where decisionmakers could use tournaments effectively to force information? In contexts where decisionmakers value the ability to exercise discretion or power, they may eschew information revelation schemes so as to be able to mask their true motivations behind a promotion. Nominations to the Supreme Court provide an example. There, the desire to push political agendas may lead to the intentional obscuring of the true merits of nominees. Last, the essay considers how objective rankings can force hard-to-obtain information outside the employment context. The focus is the much-debated US News rankings of law schools. We argue that the existence of the US News rankings forces law schools to reveal information that would not otherwise be made available.
Well, everyone in the law school world will want to download this one!


 
New from Law & Politics Book Review
    SELF-MADE MADNESS: RETHINKING ILLNESS AND CRIMINAL RESPONSIBILITY, by Edward W. Mitchell. Hampshire, England: Ashgate Publishing Limited, 2003. 272pp. Hardback $99.95 / £55.00. ISBN: 0754623327. Reviewed by Dan A. Lewis.
    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
    Monday, January 17 Tuesday, January 18
      NYU Legal History: James Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, NYU School of Law.
      Vanderbilt University Law School: Burch Lecture, Professor Erik Jayme, Institute for Foreign, International, Private & Economic Law, Heidelberg.
    Wednesday, January 19
      No events.
    Thursday, January 20 Friday, January 21
      Oxford Institute of European and Comparative Law: Stefan Vogenauer, Inaugural Lecture: A European Legal Method: Should We, Could We, Would We?


 
Legal Theory Lexicon: Balancing Tests
    Introduction Balancing tests are ubiquitous in American law. From the Due Process Clause to the Freedom of Speech and from the federal joinder rules to personal jurisdiction, U.S. law makes the outcome of legal disputes dependant on the balancing of various interests and factors. Law students quickly become familiar with the idea of a balancing test, and moreover, are likely to quickly develop a cynical attitude about their constraining power. "So it's just subjective?"--is a question often asked in classroom discussion when a balancing test is announced. This post provides a rough and ready introduction to the theoretical issues raised by the notion of a "balancing test." As always, my intended audience consists of law students, especially first years, with an interest in legal theory.
    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:
    Torture is perhaps the most unequivocally banned practice in the world today. Yet within six weeks after September 11, articles began appearing suggesting that torture might be "required" in order to interrogate suspected terrorists about future possibilities of violence. The United States and some of its allies are using methods of questioning relating to the war on terrorism that could be described as torture or, at the very least, as inhuman and degrading. It is known that the United States sent some suspected terrorists to allied countries that are well known to engage in torture. And in terror's wake, the use of such methods, at least under some conditions, has gained some prominent defenders. Torture: A Collection brings together leading lawyers, political theorists, social scientists, and public intellectuals to debate the advisability of maintaining the absolute ban and to reflect on what it says about our societies if we do--or do not--adhere to it in all circumstances. One important question is how we define torture at all. Are "cruel and inhumane" practices that result in profound physical or mental discomfort tolerable so long as they do not meet some definition of "torture"? And how much "transparency" do we really want with regard to interrogation practices? Is "don't ask, don't tell" an acceptable response to those who concern themselves about these practices? Addressing these questions and more, this book tackles one of the most controversial issues that we face today. The noted contributors include noted Ariel Dorfman, Elaine Scarry, Alan Dershowitz, Judge Richard Posner, Michael Walzer, Jean Bethke Elshtain, and other lawyers from both the United States and abroad.
I just got my copy on Wednesday! This is quite a collection, edited by one of the very best in the legal academy, Sandy Levinson!


 
Download of the Week The Download of the Week is California's Hybrid Democracy by Elizabeth Garrett. Here is the abstract:
    Legal scholars are beginning to engage in sustained study of direct democracy: initiatives, referendums and recalls. More than merely assessing constitutional issues implicated by the initiative process, we are studying the legal structure that shapes direct democracy. Legal scholarship still tends to analyze direct democracy on its own, however, just as the study of representative institutions by legal scholars tends to focus on them in isolation. Yet, for most Americans, policy is determined at the local or state level by a combination of direct and representative institutions. A complete analysis of any democratic institution necessarily involves understanding that it operates in a Hybrid Democracy - neither wholly representative nor wholly direct, but a complex combination of both at the local and state levels, which in turn influences national politics. My objective in this Article is to underscore the dynamic nature of our Hybrid Democracy to establish the proposition that any complete assessment of democracy must take these interactions into account. I will describe interactions that occur in three ways in Hybrid Democracy. These interactions are dramatically seen in California politics, but they are present in other areas of the country with hybrid systems. First, candidate elections can be influenced by the presence of initiatives on the ballot. Hybrid Democracy can affect turnout in candidate elections, issues discussed in candidate campaigns, and the effectiveness of campaign finance laws. Second, democratic structures and the laws regulating elections are likely to be different in a Hybrid Democracy than in a wholly representative democracy. This occurs because initiatives offer a way around legislators when their self-interest clashes with reforms favored by a majority of voters. Third, the fact of Hybrid Democracy affects the policies that lawmakers adopt because they are aware that the political game includes the possibility of initiative and referendum. Strategic politicians, notably Arnold Schwarzenegger, take advantage of Hybrid Democracy as they negotiate using the threat of initiative as a bargaining tool.
I always learn from Garrett!


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:
    Judge Richard Posner dominates on several easy-to-observe measures of judicial performance including citation counts and number of opinions published per year. Such easy-to-observe measures offer a useful first step in measuring the overall merit of a particular judge, particularly in the context of determining who would be the best candidate for nomination to the Supreme Court. We have argued elsewhere that even if one disagrees with the value of such easy-to-observe measures, they are still valuable in engendering a second step, more in-depth analysis behind the numbers. Why exactly does Posner receive more citations than others? Is Posner's tremendous productivity simply a product of existing norms on the Seventh Circuit or is Posner himself related to a shift in the norm toward higher productivity on the Circuit. We provide such an analysis in this essay. Perhaps more important than our own "unpacking of the statistics", placing Posner at the top of an objective judicial ranking gives other judges (and their advocates) incentives to reveal otherwise hidden information on exactly why their judges should be placed ahead of Posner for the next opening on the Supreme Court.
Richard Posner is a giant of the contemporary American bench--the best realist judge in an era of realist judging. But is realist judging really a good thing? That is, I think, the deepest and most important question for practical jurisprudence in our era. Here is a snippet from my recent piece, commenting on Choi and Gulati, A Tournament of Virtue:
    What about productivity? Choi and Gulati suggest that a tournament of judges should include a productivity measure:
      The selection of a Supreme Court justice, therefore, should involve a prediction about the effort that a circuit judge is going to exert if elevated. Objective factors could focus on the effort that she exerted while she was a circuit judge. We could look at how many opinions (versus short form dispositions) the judge published, how many concurring and dissenting opinions she wrote, how many opinions she wrote in which she took on primary responsibilities (as opposed to delegating to clerks), and the overall number of cases which she played a role in deciding during a given period of time.
    But are the judges who write the most or longest opinions the best judges? Choi and Gulati have argued that short opinions are actually an indicator of judicial excellence, because shortness is a proxy for judges writing their own opinions as opposed to delegating that task to clerks. If total number of pages is a not a good proxy for diligence, then what about the number of opinions written? It is certainly possible that the number of opinions written per time period is a proxy for judicial excellence, but this is not necessarily the case. The number of opinions written is surely a function of the number of opinions assigned. Assigning judges may attempt to equalize workloads; this might result in a judge given a difficult writing assignment being assigned fewer opinions. Or assigning judges might seek to equalize the number of writing assignments. The question whether there is a relationship between number of opinions written and judicial excellence seems to depend on a variety of empirical questions and not to be well suited for armchair speculation.
And here is a bite more:
    There is a more general problem with Choi and Gulati’s approach to measuring judicial excellence. The judges who are cited most and who write the most opinions may well be the judges who want to be famous, or at least “almost famous.” Fame and glory (or external recognition) are powerful motivators, but it is not clear that a desire for fame is a virtue for judges. Indeed, the claim that excellent judges seek fame and glory seems somewhat counterintuitive.
    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.
Of course, Richard Posner is not trying to win a tournament of judges. Posner, more than anyone, is surely cognizant of the fact that his honesty and integrity have placed a Posner nomination outside of the politically feasible choice set. Read Choi and Gulati's new piece! Download it while its hot!


 
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:
    This paper seeks to support policymakers' decision making by delineating the potential consequences of policy actions in three key areas (P2P networks, infringing consumer distributors, and DRM). To do so, it assesses how such action would impact relevant social values and four business models representative of current and emerging attempts to generate viable revenues from digital media.


 
Callfor Papers: Reason and Evaluation
    CALL FOR PAPERS 32nd Conference on Value Inquiry Reason and Evaluation April 8 – 10, 2005 Louisiana State University, Baton Rouge, Louisiana The 32nd Conference on Value Inquiry will be held at Louisiana State University, April 8-10, 2005. Broad participation is sought. Papers, and proposals for papers, that address the nature and practice of reason, and the nature and practice of evaluation, are welcome. Early submission is strongly encouraged and advised. Papers should be between 20-25 minutes reading time. The deadline for the submission of papers or 500-word abstracts is February 15th, 2005 Keynote Speakers include: Thomas Magnell, Alan Kors, David Copp, and Marina Oshana Papers may be practically or theoretically oriented. Topics may be disciplinary and range over issues within a single field of value inquiry such as normative ethics, applied ethics, aesthetics, political theory, or economics. Papers that address the issues of reason and evaluation within medical ethics are especially welcome. Topics may be interdisciplinary and range over issues between two or more fields of value inquiry. Topics may even be meta-disciplinary and range over purely conceptual issues concerning reasons and evaluations, and their relationship. To submit a paper, an abstract, or a proposal, contact: James Stacey Taylor, Conference Coordinator 32nd Conference on Value Inquiry Department of Philosophy and Religious Studies Louisiana State University Baton Rouge, LA 70803 USA E-mail: JTAYL25@LSU.EDU


 
Two Positions at Stanford's CIS
    2005-2006 FELLOWSHIP POSITION WITH CENTER FOR INTERNET AND SOCIETY
      The Center for Internet and Society (CIS), located at Stanford Law School, is offering a one-year Fellowship (2004-2005) to work in conjunction with its Cyberlaw Clinic on public interest litigation involving technology and the Internet. The Center for Internet and Society is a leading center for the study of the relationship between the public interest, law and technology. CIS was founded by Professor of Law Lawrence Lessig and is headed by Executive Director attorney Jennifer S. Granick, who also teaches the Cyberlaw Clinic. The CIS Clinic is an in- house clinic of eight students assisting in the direct representation of clients in matters involving security, privacy, free speech scientific innovation and technology, as well as policy analysis and public information campaigns. Illustrative litigation includes representing a company that distributes peer-to-peer file sharing software in a lawsuit filed by the recording industry; protecting the rights of Internet publishers to speak anonymously on- line; and protecting speech interests against claims of intellectual property infringement. The Fellow will be directly and primarily responsible for one or more of the intellectual property 'impact' cases that CIS is litigating. She will also assist on other CIS litigation and work with students in the Cyberlaw Clinic on cases and projects on an as-needed basis. In addition, the Fellowship may provide the opportunity for the pursuit of individual research and scholarship. The position is for 12 months, with the possibility of renewal for a second twelve months. The start date is flexible, anytime from July 2005 to September 2005. At least two years of post-law school civil litigation experience is required. Salary is $40,000 per year, with benefits. Interested applicants should submit a cover letter, resume, writing sample and a list of references by February 28, 2005 to Executive Director Jennifer S. Granick at: Crown Quadrangle, 559 Nathan Abbott Way, Stanford, CA 94305-8610 or through the CIS website. For further information, please contact Ms. Granick's legal assistant, Joanne Newman, at: 650-723-4336.
    SUMMER INTERNSHIP POSITION WITH STANFORD'S CENTER FOR INTERNET AND SOCIETY
      The Center for Internet and Society (CIS) at Stanford Law School is hiring a Summer Intern to work public interest issues involving technology and the Internet. The Center for Internet and Society is a leading center for the study of the relationship between the public interest, law and technology. CIS was founded by Professor of Law Lawrence Lessig and is headed by Executive Director attorney Jennifer S. Granick, who also teaches the Cyberlaw Clinic. The Summer Intern works with Attorney Granick and Professor Lessig on CIS and Cyberlaw Clinic litigation, including cases challenging the extension of copyright to works that had passed into the public domain, protecting the rights of Internet publishers to speak anonymously on-line, protecting speech interests against claims of intellectual property infringement, and providing legal information in response to cease and desist letters sent to Internet publishers. The Summer Intern also assists in preparing materials and research for Cyberlaw Clinic course and caseload, keeping the CIS website and calendar up-to-date and various administrative tasks on an as-needed basis. The position is for approximately 12 weeks. Second and third year law students are preferred, as is experience with computers, including email, instant messaging, Movable Type, and Excel. Hourly rate in accordance with the Law School work-study rates, to be announced. Interested applicants should submit a cover letter, resume, writing sample and a list of references by February 28, 2004 to Executive Director Jennifer S. Granick at: Crown Quadrangle, 559 Nathan Abbott Way, Stanford, CA 94305-8610. For further information, please contact Ms. Granick's legal assistant, Joanne Newman, at: 650-723-4336.


 
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:
    The University of Pennsylvania Law Review has published what I view as perhaps the best election law symposium yet, with articles on campaign finance, partisan gerrymanders, Voting Rights Act issues, false campaign speech, judicial campaign speech, political party rights, the California recall and other subjects. You can access the articles freely on line here. My own contribution to the symposium is an analysis of the Supreme Court's recent opinion upholding the constitutionality of BCRA (McCain-Feingold), Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. Pa. L. Rev. 31 (2004).
Take a look!


 
Book Announcement: Constitutional Goods
    Constitutional Goods Alan Brudner Description This book aims to distil the essentials of liberal constitutionalism from the jurisprudence and practice of contemporary liberal-democratic states. Most constitutional theorists have despaired of a liberal consensus on the fundamental goals of constitutional order. Instead they have contented themselves either with agreement on lower-level principles on which those who disagree on fundamentals may coincidentally converge, or, alternatively with a process for translating fundamental disgreement into acceptable laws. Alan Brudner suggests a conception of fundamental justice that liberals of competing philosophic schools may accept as fulfilling their own basic commitments. He argues that the model liberal-democratic constitution is best understood as a unity of three constitutional frameworks: libertarian, egalitarian, and communitarian. Each of these has a particular conception of public reason. Brudner criticizes each of these frameworks insofar as its organizing conception claims to be fundamental, and moves forward to suggest an Hegelian conception of public reason within which each framework is contained as a constituent element of a whole. When viewed in this light, the liberal constitution embodies a surprising synthesis. It reconciles a commitment to individual liberty and freedom of conscience with the perfectionist idea that the state ought to cultivate a type of personality whose fundamental ends are the goods essential to dignity. Such a reconciliation, the author suggests, may attract competing liberalisms to a consensus on an inclusive conception of public reason under which political authority is validated for those who share a confidence in the individual's inviolable worth. About the Author(s) Alan Brudner is Albert Abel Professor of Law at the University of Toronto.


 
Book Announcement: Frederick Pollock and the English Juristic Tradition
    Frederick Pollock and the English Juristic Tradition Neil Duxbury Description Frederick Pollock and the English Juristic Tradition provides the first detailed historical account of one of England's great jurists. Until the later decades of the twentieth century, law developed little as an academic discipline in England. One exceptional period of intellectual growth, however, was the late-Victorian era, when a number of brilliant and now celebrated jurists produced works and devised projects which had a crucial impact on the development of English legal thought. Among this band of jurists was the great legal treatise writer, historian, and editor, Frederick Pollock. Compared with many of his contemporaries, however, Pollock has been largely overlooked by modern legal historians. Drawing upon a vast array of sources, Neil Duxbury offers a detailed picture of this enigmatic figure, examining Pollock's career, jurisprudence, philosophy of the common law, treatise writing, and editorial initiatives, and shows that Pollock's contribution to the development of English law and juristic inquiry is both complex and crucial. Reviews "Neil Duxbury has carried out a fine exercise of academic rehabilitation of an eminent Victorian who has hitherto been remembered for his association with other legal giants, such as Maitland and Holmes, more than for his own achievements. It is particularly valuable at a time when the judicial and juristic planets are again coming into contact with each other and not merely spinning on their own axes. In burnishing Pollock's reputation, Neil Duxbury has assuredly added to his own."--Michael J Beloff QC, President, Trinity College, Oxford About the Author(s) Neil Duxbury is Professor of Law at the University of Manchester.


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:
    Legal scholars are beginning to engage in sustained study of direct democracy: initiatives, referendums and recalls. More than merely assessing constitutional issues implicated by the initiative process, we are studying the legal structure that shapes direct democracy. Legal scholarship still tends to analyze direct democracy on its own, however, just as the study of representative institutions by legal scholars tends to focus on them in isolation. Yet, for most Americans, policy is determined at the local or state level by a combination of direct and representative institutions. A complete analysis of any democratic institution necessarily involves understanding that it operates in a Hybrid Democracy - neither wholly representative nor wholly direct, but a complex combination of both at the local and state levels, which in turn influences national politics. My objective in this Article is to underscore the dynamic nature of our Hybrid Democracy to establish the proposition that any complete assessment of democracy must take these interactions into account. I will describe interactions that occur in three ways in Hybrid Democracy. These interactions are dramatically seen in California politics, but they are present in other areas of the country with hybrid systems. First, candidate elections can be influenced by the presence of initiatives on the ballot. Hybrid Democracy can affect turnout in candidate elections, issues discussed in candidate campaigns, and the effectiveness of campaign finance laws. Second, democratic structures and the laws regulating elections are likely to be different in a Hybrid Democracy than in a wholly representative democracy. This occurs because initiatives offer a way around legislators when their self-interest clashes with reforms favored by a majority of voters. Third, the fact of Hybrid Democracy affects the policies that lawmakers adopt because they are aware that the political game includes the possibility of initiative and referendum. Strategic politicians, notably Arnold Schwarzenegger, take advantage of Hybrid Democracy as they negotiate using the threat of initiative as a bargaining tool.


 
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:
    This essay was written for a forthcoming festschrift in honor of my UCLA School of Law colleague, coauthor, and friend William A. Klein. The conference is organized around Bill's claim that corporate law scholarship would benefit if scholars were more explicit about the normative criteria that motivate their analyses and policy recommendations. In pursuit thereof, Bill's "criteria project" identifies four broad categories of "criteria for good corporate laws": (1) fairness; (2) efficiency; (3) legitimacy and accountability; and (4) administrability. Within each broad category, one then finds a number of specific criteria. Scholars are then asked to identify those criteria that inform their work. In this essay, I argue that the criteria project lacks an overall conception of the corporation. I further argue that one's selection of evaluative criteria cannot be appraised in isolation from the concepts of the corporation informing that selection. Hence, I echo a call made two decades ago by Professor Roberta Romano for scholars to be more explicit in setting out their "normative theory of the corporation and its place in the polity."


 
Book Announcement: Where Law and Morality Meet
    Where Law and Morality Meet Matthew H. Kramer Add to Cart 0199274193, hardback, 312 pages Dec 2004. Description: How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral principles are consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law. Product Details 312 pages; 0-19-927419-3 About the Author(s) Matthew H. Kramer is Professor of Legal and Political Philosophy at the University of Cambridge, Fellow of Churchill College, and Director of the Cambridge Forum for Legal and Political Philosophy.


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:
    The open source and free software movements have used self-perpetuating copyright licenses to maintain open access to publicly distributed software. This model of licensing has now migrated to the field of bioltechnology, where patents rather than copyrights dominate proprietary rights. Consequently, a model for open source patenting or free biotechnology presents a constellation of legal issues not typically found in previous open source licensing. This paper discusses several of these issues, including the nature of the rights transferred, the activities that may trigger the terms of the license, and the legal prohibitions on certain forms of licensing.


 
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:
    This Article questions the widely-held view, expressed most clearly by John Hart Ely's War and Responsibility, that Congress must provide ex ante approval for all uses of force. It critiques Ely's approach, both his method of constitutional interpretation and his substantive goals for the war-making process. It proposes a different vision for war powers that provides more flexibility to the political branches. It then argues that a Congress-first process does not produce its desired substantive outcomes, and questions whether the costs and benefits of different war-making processes are sufficiently clear to cement one into place as a matter of constitutional law. Finally, it discusses the transformation of warfare and threats to American national security that have arisen since the development of the Congress-first argument. International terrorism of the September 11, 2001 type, rogue nations, and the proliferation of weapons of mass destruction (WMD), place new demands on the Constitution’s system for making war. This Article counsels against establishing a fixed constitutional process for war powers when the struggle against al Qaeda is still early and the costs and benefits of different approaches cannot yet be measured with any confidence.


 
New at Law & Politics Book Review
    LEO STRAUSS AND THE POLITICS OF AMERICAN EMPIRE, by Anne Norton. New Haven: Yale University Press, 2004. 256pp. Cloth $25. ISBN 0-300-10436-7. Reviewed by Leslie Friedman Goldstein.
    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
    NEH Summer Seminar for College and University Teachers, June 13-July 15, 2005, Atlanta, GA "Political Obligation, Democratic Legitimacy, and Human Rights: Theoretical and Applied Issues" Co-directors: Andrew Altman, Georgia State University, and Christopher Heath Wellman, Washington University- St. Louis Guest speakers will include Allen Buchanan, Thomas Christiano Heidi Hurd, and John Simmons. For more information: http://www.gsu.edu/nehseminar


 
Call for Papers: Metaethics Workshop
    I'm pleased to announce a call for abstracts for the second annual Metaethics Workshop, to be held at the University of Wisconsin, Madison, on September 16-18, 2005. Judith Thomson (MIT) and T.M. Scanlon (Harvard) will be the keynote speakers. Abstracts (of 2-3 double-spaced pages) of papers in any area of metaethics are due by MAY 1. There is a limit of one submission per person. Speakers in last year's workshop are not eligible to submit abstracts for this year's event. A program committee will evaluate submissions and make decisions by early June. Information on submitting an abstract, plus much other relevant information about the workshop, can be obtained at the workshop website: http://philosophy.wisc.edu/info/2005Metaethics.htm All questions about the workshop may be directed to me. Please see the contact information below. I would greatly appreciate your forwarding this email to colleagues in your department, and to any other philosophers you believe might be interested in participating in the workshop. Thanks very much, and hope to see you in Madison this autumn. Russ Shafer-Landau Russ Shafer-Landau Professor of Philosophy University of Wisconsin 5185 Helen C. White Hall 600 N. Park St. Madison, WI 53706 ph: 608.263.3727 fax: 608.265.3701 shaferlandau@wisc.edu


 
Fellowships at the LSE
    VISITING FELLOWSHIPS Centre for Philosophy of Natural and Social Science London School of Economics The Centre offers up to five long-term Fellowships per year (three senior and two junior Fellowships). Prospective visitors are invited to apply for a Fellowship of no more than three terms. Visiting Fellows have the opportunity to work on their own research, and to collaborate with members of the Centre and with the wider academic community in Britain. For more information about the programme, visit http://www.lse.ac.uk/collections/CPNSS/people/visitingFellowsProgrammeLongTerm.htm For more information about the Centre, visit http://www.lse.ac.uk/collections/CPNSS/


 
Symposium Announcement: Welfare and Rational Care by Darwall
    Symposium on WELFARE AND RATIONAL CARE by Stephen Darwall (Princeton UP, 2002) 2 p.m., Monday 24 January 2005 Speakers: Stephen Darwall, James Griffin, Joseph Raz, Susan Wolf 48 Woodstock Lecture Room 1 (SR 1), St Anne’s College (approach via lodge) All welcome. Conference sponsored by Utilitas (www.utilitas.org.uk


Monday, January 10, 2005
 
Conference Announcement: Susan Okin
    The Susan Okin Conference Susan Okin (1946-2004) changed the face of contemporary political theory by confronting its sharp complacency about family and gender. Her personal and scholarly commitment to social justice inspired all her knew her. Date: February 3-5, 2005. Location: Stanford University. For more information, please visit: http://ethicsinsocity.stanford.edu or contact: Joan Berry, joanieb@stanford.edu


 
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:
    A forthcoming law review article by UCLA professor Rick Sander is causing a big stir in the legal academic community. Sander's piece in the Stanford Law Review argues that race-based affirmative action as practiced by American law schools over the last 30 years actually ends up hurting the group - African American law students - it is most intended to help. In today's column, Part One of a Series, I shall sketch out some of the basic points Sander tries to make. In Part Two, I will describe some of the critiques and criticisms of Sander's piece that other academics are making, and share some of my own reactions as well.


 
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:
    I’ve . . . spent most of the last year working for a law review, and, from the perspective of a student editor, I think Hunter’s criticisms are somewhat harsh. I also think he underestimates the long-term costs of doing business—even on-line. What follows is a first pass at Hunter’s argument. I put these thoughts forward tentatively, and I hope they’ll be received that way. I think Hunter’s paper is important and provocative. It raises lots of interesting questions about what (legal) academic publishing should be like, especially in a paper-free world. But those questions appear to me far more open than Hunter sometimes suggests.


 
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:
    It is two months after Election Day, and we still do not know with certainty the winner of the gubernatorial election in Washington state or the mayoral race in San Diego. Meanwhile, the Internet is swimming with conspiracy theories that Republicans, mostly in Ohio and Florida, stole the presidential election for George W. Bush.
    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
    Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.
    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,
      two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.
    Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.
    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:
      Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.
    Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy. The final notion is "pure procedural justice." Rawls writes:
      [P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.
    Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.
    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:
      The Accuracy Model We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.
      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:
        [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
      Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.
      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:
        At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.
      In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.
    Conclusion Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.
    Online Resource Bibliography
    • Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
    • Mathews v. Eldrige, 424 U.S. 319 (1976).
    • Jerry L. Mashaw, Due Process In The Administrative State (1985).
    • Richard Posner, Economic Analysis Of Law (1992).
    • John Rawls, A Theory Of Justice (1971)


Saturday, January 08, 2005
 
Blogging from San Francisco: Precedent and Originalism
    Introduction It’s 10:30 a.m. on Saturday. I’m sitting in Continental Ballroom C in the San Francisco Hilton. The Section on Constitutional Law is holding a program titled “Originalism and Problem of Precedent.” As always, these are my notes and not a transcription. In some cases, I've condensed several sentences into one, and in other cases, I've missed an idea that went by too fast for me to summarize. First up is Randy Barnett.
    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:
      1. Precedent is our system. 2. Precedent should be our system. 3. Precedent is not troubled by formalism and sectarianism.
    The first proposition, Strauss says, is obvious. In most cases, Strauss says, the Supreme Court begins with precedent and not with the text or original meaning.
    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:
    Scientists and mathematicians in recent years have become intensely interested in the structure of networks. Networks turn out to be crucial to understanding everything from physics and biology, to economics and sociology. This article proposes that the science of networks has important contributions to make to the study of law as well. Legal scholars have yet to study, or even recognize as such, one of the largest, most accessible, and best documented human-created networks in existence. This is the centuries-old network of case law and other legal authorities into which lawyers, judges, and legal scholars routinely delve in order to discover what the law is on any given topic. The network of American case law closely resembles the Web in structure. It has the peculiar mathematical and statistical properties that networks have. It can be studied using techniques that are now being used to describe many other networks, some found in nature, and others created by human action. Studying the legal network can shed light on how the legal system evolves, and many other questions. To initiate what I hope will become a fruitful new type of legal scholarship, I present in this article the preliminary results of a significant citation study of nearly four million American legal precedents, which was undertaken at my request by the LexisNexis corporation using their well-known Shepard's citation service. This study demonstrates that the American case law network has the overall structure that network theory predicts it would. This article has three parts. First, I introduce some basic concepts of network science, including such important ideas as nodes, links, random graphs, evolving networks, scale-free networks, small worlds, the rich get richer dynamic, node fitness, and clusters. Oddly enough, the mathematical tools that have proven most useful for studying networks (or at least scale-free networks) come from statistical mechanics, a branch of physics. Having introduced network theory in Part I, and having presented evidence that American case law is a scale-free network in Part II, I argue for the significance of this discovery in Part III. I hope that by the time they reach Part III, readers will already be realizing the potential richness of applying network theory to legal systems. In Part III, I describe some insights that appear from this application and suggest areas for future research. The most famous hypothesis about the structure of law is that it is a seamless web. This old phrase, however, is just a metaphor we have used to grope for a reality we have not been in a position to express more precisely. Network science changes that. The Web of Law can be considered as a mathematical object whose topology can be analyzed using the tools pioneered by physicists and others who wanted to explore the structure of the Web and other real networks. The Web of Law has a structure very similar to that of other real networks, such as the Web and the network of scientific papers. The Web of Law is in substantial part a scale-free network, organized with hub cases that have many citations and the vast majority of cases, which have very few. The distribution of citation frequency approximates a power-law distribution, as is common with real scale-free networks, with truncations at either extreme of its distribution, which is also common. Many promising hypotheses can be generated by considering the law as a scale-free network. State and federal systems can be examined empirically to measure how well integrated each is with itself, and with each other, and how this is changing over time. Legal authorities can be measured to determine whether their authority is emerging or declining. Institutional bodies, such as courts, can be examined in the same way. Clusters of cases, which will reveal the semantic topology of law, can be mapped to determine whether traditional legal categories are accurate or require reform. These methods can be used to develop computer programs to improve the efficiency of searching electronic legal databases. The topology of American law can be compared to that of other legal systems to determine whether legal systems share universal architectural features, and in what respects different systems are unique. Changing dynamics of the citation frequency and the fitness of particular cases can be studied over historical periods to test historiographical hypotheses. So, for example, Farber's hypothesis that changes in constitutional interpretation occur suddenly, and many others, may be tested rigorously. The dynamics of authority in law generally can be studied much more rigorously. The mere fact that law is a scale free, not a random network, suggests a high degree of intellectual coherence, contrary to what some critics have suggested. The shape of the degree distribution graph of the Web of Law, in its similarity to the scientific citation network, also suggests that cases age, in the sense of losing the ability to attract citations, over time, just as scientific papers do. Yet Supreme Court cases seem to age more slowly. How nodes age profoundly affects overall network structure and therefore affects the shape of the Web of Law. Network theory hints at complex, but analyzable, interactions between the legal doctrines of precedent, and the systems of common law and multiple sovereignties. Because law grows and because it has doctrines of authority, it creates a network of a certain shape, which spontaneously organizes itself. This is the product of laws that govern networks of computers as inexorably as they govern networks of cases, laws arising from the underlying mathematics of networks. Legal databases, which are huge, precisely documented, and readily accessible, present a perfect opportunity for the application of network science. This research would produce new knowledge of general jurisprudence that has simply been impossible until now, when we have the necessary advances in network science, the fast computers, and the existence of a complete record of the legal network in electronic form, waiting to be explored.
Download it while its hot!


 
Legal Theory Bookworm The Legal Theory Bookworm recommends Catastrophe: Risk And Response by Richard A. Posner. Here's a description:
    Catastrophes, whether natural or man-made, that could destroy the human race are often dismissed as alarmist or fanciful, the stuff of science fiction. In fact the risk of such disasters is real, and growing. A collision with an asteroid that might kill a quarter of humanity in 24 hours and the rest soon after; irreversible global warming that might flip, precipitating "snowball earth;" voraciously replicating nanomachines; a catastrophic accident in a particle accelerator that might reduce the earth to a hyperdense sphere 100 meters across; a pandemic of gene-spliced smallpox launched by bioterrorists; even conquest by superintelligent robots-all these potential extinction events, and others, are within the realm of the possible and warrant serious thought about assessment and prevention. They are attracting the concern of reputable scientists-but not of the general public or the nation's policymakers. How should the nation and the world respond to disaster possibilities that, for a variety of psychological and cultural reasons, people find it hard to wrap their minds around? Richard Posner shows that what is needed is a fresh, thoroughly interdisciplinary perspective that will meld the insights of lawyers, economists, psychologists, and other social scientists with those of the physical sciences. Responsibility for averting catastrophe cannot be left either to scientists or to politicians and other policymakers ignorant of science. As in many of his previous books, Posner brings law and the social sciences to bear on a contemporary problem--in this case one of particular urgency. Weighing the risk and the possible responses in each case, Posner shows us what to worry about and what to dismiss, and discusses concrete ways of minimizing the most dangerous risks. Must we yield a degree of national sovereignty in order to deal effectively with global warming? Are limitations on our civil liberties a necessary and proper response to the danger of bioterror attacks? Would investing more heavily in detection and interception systems for menacing asteroids be money well-spent? How far can we press cost-benefit analysis in the design of responses to world-threatening events? Should the institutional framework of science policy be altered? Do we need educational reform? Is the interface of law and science awry? These are but a few of the issues canvassed in this fascinating, disturbing, and necessary book.


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:
    The problem here concerns the incentive to distribute rather than the incentive to create. Authors, and therefore the law reviews that are trying to attract them, want distribution through the commercial databases, Westlaw and Lexis. Apparently they value this in addition to the distribution provided by SSRN. And they should, because Westlaw and Lexis provide a broad distribution network. It takes capital to create and maintain such a network, so the databases would want to be paid, and for that they would need exclusivity. The value they provide also permits them to insist that the law reviews play by their rules and restrict distribution. But I wonder if this really is a problem. The commercial databases give free access to professors and students, our main audience. While we want lawyers and judges to read us too, as Hunter points out, that’s really a separate market that would probably continue to pay for the commercial databases even if the law review piece of it also flowed through SSRN.


 
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:
    Legal scholarship on behavioralism and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of the emotions in legal discourse. Discussion turns on the appropriateness of various emotions for the substantive law, and on attempts to model the place of the emotions in the law. Implicit in some of these theories, however - and explicit in others - is the assumption that emotions are predictable, manageable, and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates individuals' inability to accurately predict future emotional states, both their own and others'. Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well. In this Article I review the psychological data demonstrating inaccuracies in affective forecasting, and spin out their implications in a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia. I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion I include some of the specific drawbacks to some current theories. In addition, I address the data's implications for the very theories of welfare and well-being that underlie much legal policy, as well as some speculations about what the findings might have to say about potential paternalistic policies.


 
Lindholm on Software Patents Stephen Bruce Lindholm (Stanford Law School) has posted Marking the Software Patent Beast on SSRN. Here is the abstract:
    The literature of software patents has thus far tried to directly address whether software patents increase innovation. The wholesale reform papers have persuaded neither the courts nor Congress, perhaps due to the unfortunate dearth of economic data. This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find. It proceeds under the first economic principles of the patent system to argue that there can be no justification for patenting software when the public has no knowledge of the patents' scope or technical disclosure. It concludes by observing that patent law already provides a mechanism for disclosing patents to the public, the marking requirement, and proposes putting teeth into it so that holders of software patents would be required to play by the same rules as holders of other kinds of patents.


 
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:
    This article, prepared for the forthcoming 2nd edition of the New Palgrave Dictionary of Economics, provides an overview of the economics of environmental policy. Included are the setting of goals and targets, notably the Kaldor-Hicks criterion, and the related method of assessment known as benefit-cost analysis. Also reviewed are the means of environmental policy, that is, the choice of specific policy instruments, featuring an examination of potential criteria for assessing alternative instruments, with focus on cost-effectiveness. The theoretical foundations and experiential highlights of individual instruments are reviewed, including conventional command-and-control mechanisms and market-based instruments.


 
Smith on the Web of Law Tom Smith has uploaded The Web of Law to SSRN. Here is the abstract:
    Scientists and mathematicians in recent years have become intensely interested in the structure of networks. Networks turn out to be crucial to understanding everything from physics and biology, to economics and sociology. This article proposes that the science of networks has important contributions to make to the study of law as well. Legal scholars have yet to study, or even recognize as such, one of the largest, most accessible, and best documented human-created networks in existence. This is the centuries-old network of case law and other legal authorities into which lawyers, judges, and legal scholars routinely delve in order to discover what the law is on any given topic. The network of American case law closely resembles the Web in structure. It has the peculiar mathematical and statistical properties that networks have. It can be studied using techniques that are now being used to describe many other networks, some found in nature, and others created by human action. Studying the legal network can shed light on how the legal system evolves, and many other questions. To initiate what I hope will become a fruitful new type of legal scholarship, I present in this article the preliminary results of a significant citation study of nearly four million American legal precedents, which was undertaken at my request by the LexisNexis corporation using their well-known Shepard's citation service. This study demonstrates that the American case law network has the overall structure that network theory predicts it would. This article has three parts. First, I introduce some basic concepts of network science, including such important ideas as nodes, links, random graphs, evolving networks, scale-free networks, small worlds, the rich get richer dynamic, node fitness, and clusters. Oddly enough, the mathematical tools that have proven most useful for studying networks (or at least scale-free networks) come from statistical mechanics, a branch of physics. Having introduced network theory in Part I, and having presented evidence that American case law is a scale-free network in Part II, I argue for the significance of this discovery in Part III. I hope that by the time they reach Part III, readers will already be realizing the potential richness of applying network theory to legal systems. In Part III, I describe some insights that appear from this application and suggest areas for future research. The most famous hypothesis about the structure of law is that it is a seamless web. This old phrase, however, is just a metaphor we have used to grope for a reality we have not been in a position to express more precisely. Network science changes that. The Web of Law can be considered as a mathematical object whose topology can be analyzed using the tools pioneered by physicists and others who wanted to explore the structure of the Web and other real networks. The Web of Law has a structure very similar to that of other real networks, such as the Web and the network of scientific papers. The Web of Law is in substantial part a scale-free network, organized with hub cases that have many citations and the vast majority of cases, which have very few. The distribution of citation frequency approximates a power-law distribution, as is common with real scale-free networks, with truncations at either extreme of its distribution, which is also common. Many promising hypotheses can be generated by considering the law as a scale-free network. State and federal systems can be examined empirically to measure how well integrated each is with itself, and with each other, and how this is changing over time. Legal authorities can be measured to determine whether their authority is emerging or declining. Institutional bodies, such as courts, can be examined in the same way. Clusters of cases, which will reveal the semantic topology of law, can be mapped to determine whether traditional legal categories are accurate or require reform. These methods can be used to develop computer programs to improve the efficiency of searching electronic legal databases. The topology of American law can be compared to that of other legal systems to determine whether legal systems share universal architectural features, and in what respects different systems are unique. Changing dynamics of the citation frequency and the fitness of particular cases can be studied over historical periods to test historiographical hypotheses. So, for example, Farber's hypothesis that changes in constitutional interpretation occur suddenly, and many others, may be tested rigorously. The dynamics of authority in law generally can be studied much more rigorously. The mere fact that law is a scale free, not a random network, suggests a high degree of intellectual coherence, contrary to what some critics have suggested. The shape of the degree distribution graph of the Web of Law, in its similarity to the scientific citation network, also suggests that cases age, in the sense of losing the ability to attract citations, over time, just as scientific papers do. Yet Supreme Court cases seem to age more slowly. How nodes age profoundly affects overall network structure and therefore affects the shape of the Web of Law. Network theory hints at complex, but analyzable, interactions between the legal doctrines of precedent, and the systems of common law and multiple sovereignties. Because law grows and because it has doctrines of authority, it creates a network of a certain shape, which spontaneously organizes itself. This is the product of laws that govern networks of computers as inexorably as they govern networks of cases, laws arising from the underlying mathematics of networks. Legal databases, which are huge, precisely documented, and readily accessible, present a perfect opportunity for the application of network science. This research would produce new knowledge of general jurisprudence that has simply been impossible until now, when we have the necessary advances in network science, the fast computers, and the existence of a complete record of the legal network in electronic form, waiting to be explored.
Highly recommended!


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:
    The most significant recent development in scholarly publishing is the open access movement, which seeks to provide free online access to scholarly literature. Though this movement is well-developed in scientific and medical disciplines, American law reviews are almost completely unaware of the possibilities of open access publishing models. This Essay explains how open access publishing works, why it is important, and makes the case for its widespread adoption by law reviews. It also reports on a survey of law review publication policies conducted in 2004. This survey shows, inter alia, that few law reviews have embraced the opportunities of open access publishing, and many of the top law reviews are acting as stalking horses for the commercial interests of legal database providers. The open access model promises greater access to legal scholarship, wider readership for law reviews, and reputational benefits for law reviews and the law schools which house them. This Essay demonstrates how open access comports with the institutional aims of law schools and law reviews, and is better suited to the unique environment of legal publishing than the model that law reviews currently pursue. Moreover, the institutional structure of law reviews means that it is possible that the entire corpus of law reviews could easily move to an open access model, making law the first discipline with a realistic prospect of complete commitment to free, open access of all scholarly output.
Hunter is right!


 
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:
    For the greater part of the 20th century, representations of law as state law were dominant in the legal scholarship of the West. But over the last thirty years sustained attempts have been made, notably under the self-conscious banner of legal pluralism, to loosen the conceptual bonds between law and government. Early on, acephalous societies in formerly colonial territories and local groupings within the metropolis were represented as legal orders. Latterly, as attention shifted to orderings at regional and global level beyond the nation state, attempts have been made to delineate a general jurisprudence. It is argued here that these conceptual revisions have for the most part been problematic, made in the face of strong evidence linking the cultural assemblage we have come to call law with projects of government. The lecture concludes with a plea that we should be very cautious in representing what are essentially negotiated orders, whether at local or global level, as legal orders; these remain significantly different from those at the level of the state. Today, under an onslaught of jural discourse and institutional design, the distinctive rationalities and values of negotiated order, while arguably deserving to be celebrated, are effectively effaced.


 
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:
    In the age of the Internet many traditional legal principles acquired new meaning, or at least the necessity to be redefined. It is particularly true in respect of the ability of states to prescribe the laws for online activities and to enforce them on Internet users. International law does not object to the extension of state jurisdiction beyond the state boarders and even provides an arsenal of generally accepted principles. However, automatic application of these principles leads to worldwide liability of any Internet author for simple creation of a webpage, without any other connection with a possible forum. Whereas certain Internet activities are similar to those in the physical world, such as e-ommerce, where the partners can at least identify each other and get the warning of legal order, others are substantially different, and among them online expression. As the Internet is now, there are not too many possibilities to control the spread of online content apart from not speaking on the Internet at all, and they are connected with significant burden for all participants. It is necessary to carefully review the validity of the established principles of extraterritorial jurisdiction and to ensure that their application in Internet content controversies is both effective and without undue constrains on expression preferences of others.


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:
    The International Court of Justice has jurisdiction over disputes between nations, and has decided dozens of cases since it began operations in 1946. Its defenders argue that the ICJ decides cases impartially and confers legitimacy on the international legal system. Its critics argue that the members of the ICJ vote the interests of the states that appoint them. Prior empirical scholarship is ambiguous. We test the charge of bias using statistical methods. We find strong evidence that (1) judges favor the states that appoint them, and (2) judges favor states whose wealth level is close to that of the judges' own state; and weaker evidence that (3) judges favor states whose political system is similar to that of the judges' own state, and (4) (more weakly) judges favor states whose culture (language and religion) is similar to that of the judges' own state. We find weak or no evidence that judges are influenced by regional and military alignments.


 
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:
    Lawmakers regularly delegate authority to agents. Such delegation is accompanied by mechanisms that attempt to ensure that the agents adhere to the will of the lawmakers. But these mechanisms are often ineffective or inefficient. Moreover, at times the very imposition of constraints distorts the agents' incentives and impels them to adopt skewed policies. We suggest that it is possible to reduce such wasteful enforcement costs by delegating authority to certain types of agents who will pursue the lawmaker's policies without constraints imposed by the lawmaker. In this Article we focus on agents who are impartial - but not indifferent! - and skillful enough to identify the proper course of action. The Article encompasses two main arguments. The normative argument is that when skillful and impartial agents can be identified, it makes sense to delegate to them decision-making powers with only limited constraints. Moreover, in such instances it may be more cost-effective to provide agents with incentives (or design agents, like administrative agencies) to act impartially rather than develop enforcement mechanisms to impose impartiality. The positive argument is that the law - sometimes explicitly and sometimes implicitly - is compatible with our normative argument in various fields. Although our argument is general in scope and applies to many areas of law, in this Article we begin by focusing on tort law and on international law. We distinguish five categories of cases where the law relies on agents and detect in some of them impartial and skillful agents. This analysis demonstrates that, in some of these categories, the law in fact relies on agents with only minimal constraints and that, in other situations, the constraints imposed by the law are counterproductive. Our normative argument thus serves an explanatory role in understanding many legal doctrines and principles, but, at the same time, offers a critical view on other doctrines and principles, which are not compatible with that argument.


 
More on Originalism Seth Tillman writes in response to the ongoing discussion on originalism (posts here and here):
    In your post originalism (responding to C.E. Petit), you wrote: "For quite some time now, the dominant form of originalism has been original meaning originalism, which focuses on the ordinary meaning of the constitutional language at the time it was adopted." "Ordinary" is a bit to vague for my lights. "Ordinary" to whom in 1787? More specifically, I would add that some words in the Constitution were legal jargon or technical, and that the Supreme Court quite properly held, in Calder v. Bull (1798), that because the term "ex post facto" was technical in nature, its meaning was to be gleaned from how it was understood amongst the bar circa 1787-89, not from the public at large. For what it is worth, I would add that I make a similar argument with regard to the meaning of the phrase "order, resolution, or vote" appearing in U.S. const. art. 1, S. 7, cl. 3. The phrase was legal jargon -- used in prior well-known British and American legislative documents and revolutionary correspondence. Thus, the meaning of the clause is to be gleaned from how that phrase would have been understood by contemporaneous American legislators having parliamentary or legislative experience, and not from how it might have been (mis)understood by the public -- or even by treatise writers having only judicial (or litigation) experience.
Seth is right, of course. One of the hazards of casual blogging is oversimplification. The relevant "ordinary" meaning does vary with context and assumes the division of linguistic labor that prevails in many contexts. When ordinary folks run into technical language, they consult an expert or authoritative source.
And C.E. Petit has another good post on this topic. Here is a taste:
    [W]hat I was trying to say in a much less confrontational way was something like this: "Originalism", at least as it is practiced or espoused, is a logical nullity in legal interpretation. One way or another, "original meaning" is always going to come down to a non-compelling (and non-compelled) judgment call on what the "original text" "means" (neither ignoring nor worshiping Quine and Austin), whatever flavor of "originalism" one prefers. There is no single discernable author of law, even on relatively tiny points, so we have the "collective works" problem acknowledged by Professor Solum. When we can't interview "the author" in the first place to ask a clarifying question or three—even assuming that one would not run into the "author"'s hindsight bias—we're stuck dealing with a necessarily incomplete historical record with our own hindsight biases. Then, too, there's the problem of the intentional fallacy that has been so much better developed in literary than in legal theory. In the end, "originalism" can be a useful tool in defining negative spaces—that is, in excluding certain classes of meanings from a particular inquiry. It can also be a useful tool in seeing when a boundary between interpretive models might be approaching, such as the different methods one must use in interpreting the Banking Clause and Regulation Z. (This is analogous, however loosely, to the differing mathematical concepts one must use when looking at a billiard ball's motion and that of a constituent electron.) However, that is its limit; "originalism" cannot compel a positive meaning to a particular provision—most especially in those contexts in which the polity most often wishes to apply it. "Three fifths of all others" is a good example of this problem; we simply cannot pretend that the "original meaning" of the Bill of Rights can ignore this language, despite its later excision from the Constitution. Neither, however, are we compelled to accept whatever "original meaning" we might therefore ascribe to the Bill of Rights, or any particular provision of it, as currently valid in the face of that excision, or of what we have learned since that time.
There is quite a lot packed into Petit's post. Just a few points:
  • "Logical nullity" is quite a strong charge, but I am at a loss to know what Petit means by it. Does he mean that originalism involves a logical contradiction. If so, he owes us an explanation as to what it is? Or perhaps he means that originalism asserts an empty tautology? Or perhaps, "logical nullity" is just a rhetorical fourish?
  • Petit asserts "'original meaning' is always going to come down to a non-compelling (and non-compelled) judgment call on what the 'original text' 'means'". Again, I am not sure what Petit means. Of course, originalism doesn't eliminate the problem of interpretation. It is a way of framing the interpretive enterprise, putting the contemporary reader in the "as if" position of a reader trying to understand the language in light of the linguistic practices at the time the particular text was promulgated. But frequently, that enterprise will yield meanings that are determinate enough for the task at hand--deciding a case, for example. When Petit asserts that the result will always be noncompelled and noncompelling, he assumes a very heavy burden of proof. In so far as I can tell, he produced no argument for this very strong assertion.
  • But I would be the last person in the world to deny that frequently the constitutional text will underdetermine particular cases. In some cases, originalist methodology will rule out some interpretations that would otherwise be one the table. In other cases, originalism may not add much--because, for example, contemporary usage does not diverge significantly from usage at the time the constitutional provision was promulgated.


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:
    "The original meaning of the Constitution"? Let's assume for the moment that such a thing exists, which is far, far from possible; it is, after all, a collectively authored document. Let's further assume for the moment that Madison's extensive notes represent that meaning; they're certainly the best evidence we have. If our argument hasn't already collapsed of its own weight—it has; some of Madison's notes are self-contradictory—let's ask ourselves which Constitution we are referring to. Do we mean the Constitution that includes "three fifths of all others" in its calculation of our population? The one that restricts the right to vote to males? That's certainly possible; but then, what we have discovered is only one original meaning of the Constitution, and we still must choose among those texts for the one most meaningful to the dispute (live or otherwise) requiring the interpretation. In other words, we've opened one mysterious box and found another inside.
Read Petit's whole post, but I have a reaction or two:
  • Petit writes: the original meaning of the constitution "is far, far from possible; it is, after all, a collectively authored document." There are many complexities here, but Petit's move is properly directed at what might be called original-intentions originalism, which does suffer from a collective intent problem. Very few contemporary originalists advocate this view. For quite some time now, the dominant form of originalism has been original meaning originalism, which focuses on the ordinary meaning of the constitutional language at the time it was adopted.
  • Petit writes, "Let's further assume for the moment that Madison's extensive notes represent that meaning; they're certainly the best evidence we have." But original-meaning originalism places no special emphasis on Madison's notes. At best they are evidence of ordinary usage. Just as important as his notes are contemporaneous sources (newspapers, pamphlets, etc.) that give us insight into the ordinary uses of the words and phrases in the constitution.
Of course, there is lot's more to say about this topic. My point is simply that originalism is frequently attacked in a form that almost no originalists would recognize.


 
Oman on Contract Theory Nate Oman has posted Unity and Pluralism in Contract Law on SSRN. Here is the abstract:
    The contemporary philosophy of contract law must reconcile apparently incommensurable theories of contractual obligation, namely those based on moral rights and those based on economic efficiency. In his recent book, Contract Theory, Stephen Smith seeks to solve this problem by arguing that economic theories fail to explain contract law while rights-based theories adequately account for the law. His argument, however, rests on a misunderstanding of economic and legal reasoning, and results in implausible claims about the contours of contract law. Rather than dismissing one or the other of these two approaches, philosophers of contract law should look for ways of providing a principled integration of them. This paper argues that the Rawlsian notion of the priority of liberty provides one path toward such a principled integration.
It gives me great pleasure to recommend this paper by Nate, who is well known to the blogosphere from A Good Oman, the blog he started as a law student.


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:
    The core problem for Thomas, and for originalism, is that its consistent application would be unacceptable politically. But jurisprudentially, it cannot afford the luxury of inconsistent application. Originalism is supposed to bring certainty and legitimacy to the enterprise of judicial review, by anchoring judges to the framers' understanding of the text of the Constitution. If an originalist wavers when the going gets tough, that virtue becomes illusory. In short, Justice Thomas cannot claim the mantle of originalist legitimacy when he tells me (as I am confident he would) the Constitution does not protect my right to marry in Kentucky, while advocating the non-originalist position that it does protect his right to marry in Virginia.
This argument is at once completely conventional and simultaneously shocking. On the one hand, it is no surprise that an originalist approach to constitutional interpretation would be politically controversial--after all, nonoriginalist jurisprudence has dominated the Court for more than sixty years and the political landscape has been shaped by those decisions in no small degree. On the other hand, the idea that restoring the original meaning of the Constitution is is simply beyond the pale does have an odd ring to it. Do you really mean that we couldn't have a system with more power for the states and less for the Supreme Court? Why is that inconceivable?
Link courtesy of election-law super-blogger, Rick Hasen.


Sunday, January 02, 2005
 
Legal Theory Lexicon: Intention
    Introduction Was it intentional? Did he intend to kill? What was the framer's original intent? "Intention" is an important concept for legal theory. On the one hand, "intention" figures prominently in theories of criminal law and tort law. On the other hand, constitutional theory is interested in the idea of "the original intentions of the framers." This post provides a very rough and ready introduction to the idea of intentional for law students (especially first year law students) with an interest in legal theory.
    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:
      The Westside rapist entered Jane's house.--True. Norman Heathcliff entered Jane's house.--True. The man in the delivery uniform entered Jane's house.--True. The man on he porch entered Jane's house.--True.
    We can substitute any description that refers to "Norman Heathcliff" and the truth value of the sentence is unaffected. A sentence that has this property is called "referentially transparent" or "an extensional context."
    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 :
      Jane intended to let the man in the delivery uniform into her house.--True. Jane intended to let the Westside rapist into her house.--False. Jane intended to let Norman Heathcliff into her house.--False. Jane intended to let the man on the porch into her house.--True.
    But the four descriptions all refer to the same man. Because you cannot substitute referentially equivalent descriptions into expressions of intentions, we say that such expressions are "referentially opaque" or that they are "intensional" contexts. (Notice that intensional was spelled with an "s".)
    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 One: Ben has a gun. He aims at Alice and shoots, hoping to kill her. Her death was what he was trying to accomplish.
      --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 all four cases, we can say that one person killed another: Ben killed Alice, Carlos killed Dawn, Edgar killed Francis, and Harry killed Ingrid. But each case differs with respect to intentionality:
      In example one, Ben intended to kill Alice and her death was his end.
      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.
    Are these cases alike or different? Morally or legally? Of course, those are big questions, but we can make a little progress on them. Cases one, two, and three are usually considered to be indistinguishable so far as culpability is concerned: in all three cases, the actor intends the death of the victim. Case four is usually considered to be distinguishable from cases one, two, and three: case four involves negligence which may be culpable but is not as blameworthy as intentional killing. Case two--where the Dawn's death is foreseen as highly likely but is not desired--is sometimes said to involve "oblique intention." Even though the death in case two was not directly intended, it is nonetheless the natural and foreseeable consequence of the intended action (blowing up the bridge while someone is on it).
    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:
      A trolley is running out of control down a track. In its path are 5 people who have been tied to the track by a mad philosopher. Fortunately, you can flip a switch which will lead the trolley down a different track. Unfortunately, there is a single person tied to that track. Should you flip the switch with the result that one will die instead of five?
    Most philosophers agree that it is morally permissible to flip the switch. The philosopher John Mikhail has done a series of experiments that confirm that most ordinary people agree. If you pull the switch, you act intentionally and you cause the death of the one person. Now consider a second problem, "Organ Harvesting":
      You are a surgeon performing elective surgery on a healthy person. Five other patients are on the verge of death, but could be saved if you killed your healthy patient and harvested her organs. Should you kill your patient?
    Almost everyone (except perhaps some hard-core act utilitarians) agrees that killing the patient is morally impermissible. Both cases involve causing the death of one to save five. But in the "Trolley Problem," you do not directly intend the death; in the Trolley problem, you may hope that through some miracle the one person escapes death. In "Organ Harvesting," on the other hand, the surgeon must intend the patient's death. The organs can only be harvested if the patient is killed. Perhaps it is the intention to kill that makes the difference to our moral intuitions.
    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:
    This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, he demonstrates that American jurisprudence has evolved as a collection of themes which reflect broader American intellectual and cultural concerns.


 
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:
    By the conventional view, case outcomes are largely the product of courts' application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This article propounds such a theory. It classifies legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control. Strategies that depend upon the persuasion of judges are explained through a conception of law in which cases and statutes are almost wholly indeterminate and strategists infuse meaning into these empty rules in the process of argumentation. That meaning derives from social norms, patterns of outcomes, local practices and understandings, informal rules of factual inference, systems imperatives, community expectations, and so-called public policies. Constraint strategies operate through case selection, record making, legal planning, or media pressure. Strategists deprive judges of control by forum shopping, by preventing cases from reaching decision, or by causing them to be decided on issues other than the merits. The theory presented explains how superior lawyering can determine outcomes, why local legal cultures exist, how resources confer advantage in litigation, and one of the means by which law evolves.
Highly recommended!