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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, February 28, 2005
 
Monday Calendar
    UCLA School of Law: Kurt Lash, The Lost History of the Ninth Amendment. Highly recommended! Here is a taste:
      A comprehensive look at the lost history of the Ninth Amendment is presented in two articles, Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331 (2004), and Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597 (2005). This short essay briefly summarizes some important aspects of that history. Those interested in the subject are encouraged to read the full articles. Given that the states had existed for more than a decade under the Articles as thirteen “free and independent states, it is no surprise that the degree to which the proposed Constitution would diminish (or eradicate) individual state autonomy was a major issue in the ratification debates. Despite Federalist assurances to the contrary, Anti-federalists warned of the potential consolidation of the states under a national government with unlimited power. Although a sufficient number of states eventually agreed to ratify the Constitution, a number of them did so with the understanding that the scope of federal power would be strictly limited. Several state conventions included statements of principle along with their notice of ratification declaring their understanding that all non-delegated powers, jurisdictions and rights were reserved to the states.
    Northwestern International Law: Larry Helfer, Professor of Law, Vanderbilt University, "Exit Treaties". Here is a taste:
      [B]uried at the back of most modern international agreements, and often overlooked by scholars, are provisions that call into question international law’s unequivocal command that states must either obey treaties or cooperate in abrogating or revising them. Such provisions, known as denunciation or withdrawal clauses, permit a state to “exit” from a treaty that the state had previously ratified and that is otherwise valid and in force. Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in an intergovernmental organization.5 Denunciation and withdrawal are fundamentally unilateral acts. They do not require the consent or approval of other states, and may often be effectuated simply by providing notice to the other parties. Moreover, a state that invokes these clauses to quit a treaty occupies a very different position from a state that breaches its treaty commitments. An exiting state faces different burdens and benefits, different prospects of being sanctioned, different reputational consequences, and different responses by other parties than a state that breaches an international agreement.
    University of Texas School of Law: Richard Sander, University of California at Los Angeles, "A Systemic Analysis of Affirmative Action in American Law Schools".
    Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.
    Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”.
    Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines".
    NYU Law: Liam Murphy, Concepts of Law. Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability".
    Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia".


 
Conference Announcement: European Congress for Analytic Philosophy
    Fifth European Congress for Analytic Philosophy, ECAP 5 Faculdade de Letras de Lisboa, 27-31 August 2005 http://www.centrofilosofia.org/ecap5 Workshop on Philosophy, Economics, and Public Policy Organised by Luc Bovens (LSE and editor, Economics & Philosophy), Geoffrey Brennan (ANU and editor, Economics & Philosophy), and Alex Voorhoeve (LSE). Description: The workshop focuses on techniques and ideas from moral and political philosophy and from economic theory that bear on the analysis of issues in public policy. Some of the topics that may be addressed in the workshop are environmental regulation, health policy, the welfare state, voting theory, … Invited Speakers: Sven Ove Hansson (Royal Institute of Technology, Stockholm) Julian Legrand (LSE, London and UK Prime Minister’s Health Policy Advisor) Jonathan Wolff (UCL, London) Submission of papers: Authors are invited to submit papers that they wish to present at the workshop electronically to ecap5@bovens.org. Submissions should be maximum 5000 words. All papers will be blind reviewed. The deadline for submission is April 15, 2005. Authors will be informed of the decision about the presentation of their paper by May 15, 2005. The workshop is supported by a grant by the Alexander von Humboldt Foundation, the Federal Ministry of Education and Research and the Program for the Investment in the Future (ZIP) of the German Government.


 
Conference Announcement: Self-Knowledge
    The Royal Institute of Philosophy University of Manchester 5 March 2005 'Self-Knowledge' A symposium on the nature and the limits of understanding oneself. Speakers:
      Paul Snowdon (UCL) Sven Bernecker (Manchester) David Owens (Sheffield) Naomi Eilan (Warwick)
    For further inquiries please visit: http://les.man.ac.uk/philosophy/rip/rip2005.html


Sunday, February 27, 2005
 
Legal Theory Calendar
    Monday, February 28
      UCLA School of Law: Kurt Lash, The Lost History of the Ninth Amendment. Here is a taste:
        A comprehensive look at the lost history of the Ninth Amendment is presented in two articles, Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331 (2004), and Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597 (2005). This short essay briefly summarizes some important aspects of that history. Those interested in the subject are encouraged to read the full articles. Given that the states had existed for more than a decade under the Articles as thirteen “free and independent states, it is no surprise that the degree to which the proposed Constitution would diminish (or eradicate) individual state autonomy was a major issue in the ratification debates. Despite Federalist assurances to the contrary, Anti-federalists warned of the potential consolidation of the states under a national government with unlimited power. Although a sufficient number of states eventually agreed to ratify the Constitution, a number of them did so with the understanding that the scope of federal power would be strictly limited. Several state conventions included statements of principle along with their notice of ratification declaring their understanding that all non-delegated powers, jurisdictions and rights were reserved to the states.
      Northwestern International Law: Larry Helfer, Professor of Law, Vanderbilt University, "Exit Treaties". Here is a taste:
        [B]uried at the back of most modern international agreements, and often overlooked by scholars, are provisions that call into question international law’s unequivocal command that states must either obey treaties or cooperate in abrogating or revising them. Such provisions, known as denunciation or withdrawal clauses, permit a state to “exit” from a treaty that the state had previously ratified and that is otherwise valid and in force. Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in an intergovernmental organization.5 Denunciation and withdrawal are fundamentally unilateral acts. They do not require the consent or approval of other states, and may often be effectuated simply by providing notice to the other parties. Moreover, a state that invokes these clauses to quit a treaty occupies a very different position from a state that breaches its treaty commitments. An exiting state faces different burdens and benefits, different prospects of being sanctioned, different reputational consequences, and different responses by other parties than a state that breaches an international agreement.
      University of Texas School of Law: Richard Sander, University of California at Los Angeles, "A Systemic Analysis of Affirmative Action in American Law Schools".
      Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.
      Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”.
      Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines".
      NYU Law: Liam Murphy, Concepts of Law. Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability".
      Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia".
    Tuesday, March 1
      Oxford Jurisprudence Discussion Group: Stephen Perry, Associative Obligations and the Obligation to Obey the Law. Here is a taste:
        One of the strands woven into the complex fabric of Law’s Empire is an argument that there exists, under certain conditions, a general moral obligation to obey the law. Whether or not there can ever be such an obligation is an age-old problem in political philosophy, and Dworkin’s argument is offered, in part, as a contribution to that particular philosophical tradition. But it is more than that, because the argument also constitutes an integral part of Dworkin’s general theory of law. That is why I say it is one strand of a complex fabric; for Dworkin, political and legal philosophy are inextricably connected. For many of the philosophers who have addressed the question of political obligation, as I shall call it, there is no such inevitable connection. Notice, to begin, that no respectable theory of political obligation ever claimed that a person is obligated no matter what to obey the laws of a legal system to which he or she is subject. Every minimally plausible theory sets out certain conditions under which such an obligation is said to arise, and Dworkin’s is no exception. Many such theories have, however, regarded these conditions as ones that do not figure in any essential way in the concept of law itself. They assume that law constitutes a system of norms the existence and content of which can be established by, say, looking to certain kinds of social facts, and then asking whether or not a given legal system meets a set of independently specifiable conditions; if these conditions are met, then a general obligation to obey is said to exist. Arguments based on consent are often (although not necessarily) of that form; they look to an independently specifiable condition that asks whether or not everyone who is subject to a legal system has validly consented to obey its laws, whatever they are. The argument from fair play is also of this form; it looks to an independently specifiable set of conditions that asks, first, whether the content of the norms of the system show it to be a mutually beneficial scheme of cooperation, and, second, whether or not those subject to the system have “accepted” its benefits.2 There are, as Dworkin points out, well-known problems with both arguments if they are regarded as the basis of a general obligation to obey the law, since it is never the case that everyone subject to any given legal system has validly consented to obey it or has accepted, in the appropriate sense, certain benefits it happens to provide (LE at 192-95). My present point, however, is that these arguments treat the philosophical problem of political obligation as for the most part independent of the philosophical problem about the nature of law.
      Georgetown University School of Law: Abbe Smith.
      Northwestern Empirical Legal Studies: Margaret Brinig, William G. Hammond Distinguished Professor of Law, University of Iowa, "The Effect of Change in Child Custody Standards".
      Oxford Centre for Socio-Legal Studies: Richard Whitecross, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Citizenship and Belonging: Law and Identity in a Himalayan State.
      Oxford Intellectual Property Research Centre: Dr Christine Greenhalgh & Dr Mark Rogers, Intellectual Property in the New Millennium: The Use of Intellectual Property by the UK Financial Services Sector.
    Wednesday, March 2
      Notre Dame Law School: Lawrence Solum, University of San Diego, "Virtue Jurisprudence: An Aretaic Theory of Law." Scroll down to last Wednesday for an abstract.
      University College, London, Colloquium in Legal and Social Philosophy: Professor Seana Shiffrin (UCLA), 'What's wrong with compelled association?'. Here is a taste:
        Roberts v. United States Jaycees held that it was constitutionally permissible for Minnesota to require the Jaycees, as a public accommodation, to desegregate and to admit women. Sixteen years later, Boy Scouts of America v. Dale held that it was constitutionally impermissible for New Jersey to require the Boy Scouts, as a public accommodation, to remain partly desegregated and to retain an openly gay Scoutmaster. It is no surprise that Dale caused gnashing of teeth by those who applauded Roberts v. Jaycees: the Court’s commitment to integration seemed all too limited. Women counted; gays and lesbians did not. This analysis may be a partly accurate diagnosis of Dale’s resolution, but it does not fully capture what is troubling about Dale. From a First Amendment perspective, both Jaycees and Dale should have occasioned even greater dental damage. Those who support Roberts v. Jaycees, especially liberals, should have been disturbed by Dale, not entirely because of its outcome, but because the reasoning of Dale and the debate between the justices was foreshadowed by Justice Brennan’s majority opinion in Jaycees. The opinions in Dale, and in particular the dissenting opinions of the liberal justices, follow the lead of Justice Brennan. In so doing, they reflect and forward a message-centered view of freedom of association that, while familiar, is importantly and unpalatably incomplete. In this Essay, I will argue that Jaycees was correctly decided but that Justice Brennan’s majority opinion reflects and has reinforced a messagecentered approach to freedom of association that denigrates its value and implicitly distorts and underplays its intimate connection to freedom of speech. A parallel mistake occurs in a common articulation of the objection to certain forms of compelled speech. Drawing upon a core, but underemphasized, aspect of liberalism, I will re-fashion the case against compelled speech in a way that concomitantly provides a stronger foundation for freedom of association. Specifically, the fundamental wrong of compelled speech in cases such as West Virginia State Board of Education v. Barnette, which found the compulsory recitation of the Pledge of Allegiance unconstitutional, does not depend on any external effect, in particular on outsiders possibly misunderstanding a person’s compelled speech as his own. It has more to do with the illicit influence compelled speech may have on the character and autonomous thinking process of the compelled speaker, and with illicit and disrespectful governmental efforts, however fruitless, to exert such influence.
      Northwestern University, Constitutional Theory Colloquium: Charles Lawrence, Georgetown, "Forbidden Conversations: On Race, Privacy and Community". Here is a taste:
        This article considers the subject of my silence, the relationship between the constitutional injury of racial segregation and the privatization of education. When I speak of privatization here I do not only mean the flight to private schools, or the corporatization of school systems, or the politics of school vouchers,4 although these are all symptoms of the larger problem I wish to explore. The larger problem is something I will call the privatization of care and concern for and conversation about the education of our children. I believe that increasingly public policy makers and individual parents alike think and speak about children’s right to equal educational opportunity as if that project were primarily about giving parents the chance or “liberty” to be consumers in the education market on behalf of their own children. The decisions about how to educate our children (meaning the children in our nuclear family)—where we will school them, who their classmates will be, what curriculum they will be taught—are thought of as private, protected by our constitutionally protected liberty to raise our children as we see fit. When my colleague asks about a good school for his son he is not engaging me in a conversation about what school is best for his children and mine, much less for the poor black children who live in D.C. When parents search for a good school for their children, they do not see the project as collective, as about how we will engage the political process as a community to determine what is best for all our children and see to it that they get it.
      Fordham University School of Law: Grainne De Burca; European University Institute, Visiting Professor, New York University School of Law, "The European Constitution: In Search of Europe's International Identity?".
    Thursday, March 3
      University of Texas School of Law: Akhil Amar, America's Constitution: A Guided Tour. Here is a taste:
        This book has tried to offer a comprehensive account of America’s Constitution, introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to that text. Surprisingly enough, virtually nothing else in print aims to do this. There is of course a vast outpouring of superb work on the Constitution. But within the legal literature, most books and articles focus on some specific aspect of constitutional law—executive power, judicial review, free speech, or what have you—and make no effort to encompass the constitutional system as a whole. Many law-trained authors concentrate on Supreme Court decisions, thereby privileging the United States Reports over the United States Constitution. Other law books are dense treatises aimed only at legal professionals. While political scientists routinely analyze Congress, the presidency, and the judiciary, they, too, rarely ponder the Constitution as a whole. True, historians have offered rich accounts of the Founding era and its colorful personalities. Yet these chroniclers have devoted less attention to the Constitution as a legal text, and what work they have done on the document often focuses only on the original version framed at Philadelphia. Rarely do they carry the story forward to include all the amendments over the next two centuries.* Finally, there are a few general classroom textbooks about the Constitution, most of which are distillations of conventional wisdom pitched at an average ninth grader. In the preceding pages I have aimed higher, targeting undergraduates, law students, graduate students, history buffs, civil libertarians, opinion leaders, politicians, judges, lawyers, teachers, professors, and general-interest readers.
      Yale Law, Economics, & Organization Workshop: Mark Roe, Harvard/Law, Delaware's Politics. Here is a taste:
        Delaware makes the corporate law governing most large American corporations. Since Washington can take any, or all, of that lawmaking away, a deep conception of American corporate law should show how, when, and where Washington leaves lawmaking authority in state hands, and how it affects what the states do. The interest groups and ideas in play in Delaware are narrow, those in Congress wide. Three key public choice results emanate from that observation. First, interest groups powerful enough to dominate Delaware lawmaking forgo a winner-take-all strategy because state-level losers can call for federal action and either ally there with new interest groups or appeal to ideas not in play in Delaware. Second, the major statelevel players usually want to confine federal authority in making corporate law, because a local deal cuts in fewer players; a federal deal splits the pie with outsiders. Third, we can delineate the space in which the states have room to maneuver and where they risk federal action. It’s when Delaware acts first—as it often can because the federal agenda is large and Delaware’s small—that it gains most of its discretion vis-à-vis the federal authorities. When it moves first, especially when its two main players¾managers and investors¾agree on what to do, those two players largely determine American corporate law’s initial content. Federal authorities might then change the state-made result, and players and ideologies absent in Delaware but big in Washington affect the federal result. Those new players and ideas give the original Delaware players reason to resist federal action. Doctrines that limit federal effort—corporate law’s principle that the incorporating state should govern its corporations’ internal affairs, for example—are public-regarding justifications for deferring to interests that prevail on the state level. But when Delaware cannot act first—either because media saliency puts the matter on the federal agenda or because its primary players disagree—then Delaware loses its dominance. I then analogize the relationship between Delaware and Congress to that between federal agencies and Congress. Federal agencies have discretion and first-mover advantages, but their independence even when wide is confined, ending when they provoke Congress. So it is with Delaware. The interstate race is overrated as the chief structural determinant of American corporate law. Without taking account of how Congress and Delaware interact, we cannot see core characteristics of American corporate law. And to understand that federal-state relationship, we must grapple with the how the interest groups and ideas in play in Delaware differ from those in Congress.
      Stanford Law & Economics: Alan Sykes (University of Chicago Law School), "Public vs. Private Enforcement of International Economic Law". Here is a taste:
        This paper develops a positive theory of the rules regarding standing and remedy in international trade and investment agreements. In the investment setting, the paper argues that a central objective of investment treaties is to reduce the risks confronting private investors and thereby to lower the cost of capital for capital importing nations. This objective requires a credible government-to-firm commitment (or signal) that the capital importer will not engage in expropriation or related practices. A private right of action for money damages is the best way to make such a commitment. In the trade setting, by contrast, importing nations have no direct interest in reducing the risks confronting exporters of goods and services, and will desire to make market access promises more secure only if such behavior facilitates reciprocal benefits for their own exporters. Consequently, commitments in trade agreements are best viewed as government-to-government rather than government-to firm. The parties to trade agreements can enhance their mutual political welfare by declining to enforce commitments that benefit politically inefficacious exporters, and can most cheaply do so by reserving to themselves the standing to initiate dispute proceedings – a right to act as a “political filter.” The paper also suggests why governments may prefer to utilize trade sanctions rather than money damages as the penalty for breach of a trade agreement.
      Boston University School of Law: Lewis Kornhauser (NYU), "Contingency and Control: A Theory of Contracts".
      Florida State University School of Law: Nancy Staudt, Washington University-St. Louis.
      George Mason University School of Law: Iliana Ilieva, GMU School of Law Levy Fellow, Law and Economics in Mutualfundland (with D. Bruce Johnsen).
      George Washington University IP Series: David Nimmer, "Codifying Copyright Comprehensibly".
      Georgetown Workshop on Transnational Legal Issues: Laurel Terry, Dickinson Law School "WTO, GATS, and the Regulation of Transnational Law Practice".
      Yale Legal Theory Workshop: Walter Benn Michaels, University of Illinois (English).
    Friday, March 4
      UCLA School of Law: Albert Yoon, Northwestern University Law School, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Insurance Litigation in the East"
      Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Christopher Tung (Hong Kong), Climate Change Action and Sustainable Development in China.
      Georgetown International Legal Theory Colloquium: Rosa Ehrenreich Brooks, U. of Virginia School of Law, "Failed States, or The State as Failure?".


 
Legal Theory Lexicon: Textualism
    Introduction One of the most important topics in legal theory is “legal interpretation,” the theory of the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. As always, the Legal Theory Lexicon is designed for law students—especially first year law students—with an interest in legal theory.
    Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate:
    • Level One: Meta Theories of Interpretation—One kind of theory examines questions like, “What does ‘interpretation’ mean?” and “How is ‘interpretation’ possible?”
    • Level Two: Normative Theories of Interpretation—A second kind of theory addresses the normative question, “What should legal interpretations aim at?” Among the answers to this question are: (a) the morally best reading of the legal text; (b) the intentions of the authors of the legal text, and (c) the plain meaning of the legal text.
    • Level Three: Methodological Theories of Interpretation—A third kind of theory aims to provide practical advice to legal actors (judges, lawyers, administrative officials, and citizens) about the techniques they can use to interpret various types of legal texts.
    Textualism, the subject of this post, can operate at any one of these three levels. That is, textualism could be the view that what legal texts really mean is their plain meaning. Or textualism could be the view that legal interpreters ought to interpret legal texts to have their plain meaning, even if that is not their true or deep meaning according to the best meta theory of interpretation. Or textualism could simply be a practical technique—a method that judges should employ. In this post, the primary focus will be on level two—textualism as a normative theory—with some discussion of level three. Level one, metatheory, gets us into a thorny set of issues that I hope to take up in a subsequent entry in the Legal Theory Lexicon series.
    The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.).
    But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.
    An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
      Speaker’s Meaning and Sentence Meaning This idea of plain meaning assumes a distinction that can be formulated in terms of the difference between speaker’s meaning and sentence meaning. The speaker’s meaning of a given utterance (or author’s meaning of a given text) is the meaning that the speaker intended the audience to glean for the utterance (or text). This involves a reflexive set of expectations. What? When I write a text, I understand that the reader know certain things about my having authored the text. When I try to communicate, I take these expectations into account in deciding how to use language to communicate a certain meaning. For example, if I know that my readers know that I know that they know a particular convention, then I can use that convention to communicate to them. (By the way, there are no typos in the prior sentence, all those “knows” are in there for a reason.)
      So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries.
      In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience.
      Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions about meaning.
      Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning.
    The Case for Textualism If we view textualism as a normative theory of interpretation, we need to ask to ask why interpreters of legal texts should aim for interpretations that yield that “plain meaning of the text.” The usual answer to this question is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. One of the important rule of law values is publicity: the law should be accessible to ordinary citizens. Ordinary citizens are likely to interpret statutes to have their plain meaning, because ordinary folks rarely have the training to understand legislative history and even if they did have such training, it would simply be too costly to analyze the legislative history of statutes to determine their meaning.
    Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history.
    The same difficulties that afflict lawyers are plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.”
    Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose.
    Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite!


Saturday, February 26, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Agency And Answerability: Selected Essays by Gary Watson. Here is a description:
    Since the 1970s Gary Watson has published a series of brilliant and highly influential essays on human action, examining such questions as: in what ways are we free and not free, rational and irrational, responsible or not for what we do? Moral philosophers and philosophers of action will welcome this collection, representing one of the most important bodies of work in the field.
Gary Watson's work is brilliant! If you are interested in agency and are not yet familiar with Watson, buy this book.


 
Download of the Week The Download of the Week is Legal Positivism Since H.L.A. Hart by Jules Coleman, . Here is a taste:
    Dworkin is inclined to trivialize what it is about law that is of interest to positivists. He often associates positivism with a social science project that we are ill suited for. The only philosophical projects he allows that we might be interested are not interesting: either an account of the meaning of ‘law,’ or the individuation of norms. Now frankly I am interested in the first of these projects, but not for the reasons Dworkin thinks, and every positivist is interested in the latter project but not as a vapid or empty exercise. Rather, it is an interesting feature of our social lives that we participate at any one time in a wide range of normative social practices. They are similar to one another in certain ways, and different from one another in other ways. Our participation is different, our reasons for doing so differ; the claims these practices make on us our different. We want to explore the distinguishing features of the practices because we want to know how they differ from one another and how they are similar to one another, and we want to know how and why the claims they make on us differ. In other words we want to understand important aspects of ourselves in the social world. At the end of the day, jurisprudence is important to the human project of self-understanding. I don’t think that is any less worthy or suspect that understanding the law from the point of view of central concerns in political philosophy. I doubt that one has to be a positivist either to appreciate the importance of jurisprudence to understanding ourselves from the first person perspective in the social world.
Highly recommended, of course!



Friday, February 25, 2005
 
Friday Calendar
    University of San Diego School of Law: Orin Kerr, George Washington University.
    UCLA School of Law: Mark Lemley, Stanford University School of Law, "Property, Intellectual Property, and Free Riding".
    University of Texas, School of Law: Ronald J. Mann, UT Law, & Seth Belzley, UT Law student, The Promise of Internet Intermediary Liability.
    University of Texas, School of Law: Thomas Kohler, Visiting Professor at UT from Boston College, "The Notion of Solidarity and the Secret History of American Labor Law".
    Oxford Centre for Competition Law & Policy: Sir John Vickers (Chairman, OFT), The abuse of market power.
    Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law, Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term: Mr. Kent Nnadozie (Nigeria), An International Regime on Access to Biodiversity and Sharing of its Benefits.


 
Bridgeman on Corrective Justice Accounts of Contract Curtis Bridgeman (Florida State University - College of Law) has posted Strict Liability and the Fault Standard in Corrective Justice Accounts of Contract on SSRN. Here is the abstract:
    Corrective-justice theorists have enjoyed a certain amount of success explaining tort law. Some of these theorists have begun to apply corrective-justice theory to the law of contract, but they have not yet explained how corrective justice, which normally argues that private law is concerned with the correction of wrongdoing done to victims by injurers, can explain a body of law like contract that seems indifferent to wrongdoing. In this paper, I argue that void is a problem for corrective-justice theories of contract, since although contract compensates for breach it does not do so as a way of responding to breach as a form of moral wrongdoing. Corrective justice can still explain contract law, however, because there is a way of understanding corrective justice as the view that private law compensates for losses that are wrongful even though they may or may not be the result of wrongdoing. Moreover, I argue that by understanding corrective justice in this way we achieve a general theory of contract that is more acceptable from the point of view of political liberalism than the current non-corrective accounts of contract.
Highly recommended!


 
Wendel on Professionalism as Interpretation W. Bradley Wendel (Cornell Law School) has posted Professionalism as Interpretation (Northwestern University Law Review, Vol. 3, p. 99, Spring 2005) on SSRN. Here is the abstract:
    In this Article, I defend the interpretive attitude of professionalism. Professionalism is a stance toward the law which accepts that a lawyer is not merely an agent of her client. Rather, in carrying out her client's lawful instructions, a lawyer has an obligation to apply the law to her client's situation with due regard to the meaning of legal norms, not merely their formal expression. Professionalism requires a lawyer acting in a representative capacity to respect the achievement represented by law, namely the final settlement of contested issues (both factual and normative) with a view toward enabling coordinated action in our highly complex, pluralistic society. This social function of law gives it legitimacy, in the sense that the law becomes worthy of being taken seriously, interpreted in good faith with due regard to its meaning, and not simply seen as an obstacle standing in the way of the client's goals. The grounds for the authority of law entail a conception of lawyers as custodians of the law, which in turn entails principles of legal interpretation that constrain the manipulation of legal norms to serve the ends of clients. The jurisprudential argument in the Article relies on the nature of language and its inability to capture the full range of meaning that a text must bear. In other words, there is no such thing as a self-interpreting legal text that regulates the actions of lawyers or clients apart from the exercise of interpretive judgment by a community of professionals. As a consequence, the law cannot operate as a device to settle normative conflict and coordinate activity without a commitment on the part of law-interpreters to respect the substantive meaning standing behind the formal expression of legal norms. This theory of interpretation stands in contrast to the prevailing belief of many scholars and practicing lawyers, which can be labeled legal realism, law-as-price, or the Holmesian bad man view of law. This view regards the law as functioning in practical reasoning as only one cost among many, and not as the expression of a view that individuals should, or should not do something. Professionalism, by contrast, requires lawyers to treat the law as having normative significance as such. After first considering a simple hypothetical case, the Article takes up three recent controversies - tax shelters, the Enron transactions, and the torture memos prepared by Justice Department lawyers - that show clearly the distinction between professionalism in interpretation and the Holmesian bad man stance toward the law. In my view, if the lawyers involved in those cases deserve moral criticism, it is not due to the moral wrongfulness of the clients' ends, but for failing in their responsibilities to treat the law as legitimate. This paper is an updated version of a work-in-progress previously published on SSRN under the title The Jurisprudence of Enron: Professionalism as Interpretation.


 
Fletcher on Tribal Employment Separation Matthew L.M. Fletcher (University of North Dakota - School of Law) has posted Tribal Employment Separation: Tribal Law Enigma, Tribal Government Paradox, and Tribal Court Conundrum (University of Michigan Journal of Law Reform, Vol. 38, 2005) on SSRN. Here is the abstract:
    This Article discusses the difficulty of employment separations in Indian Country. The central premise of this Article is that Euro-American law and jurisprudence is uniquely unsuited to Indian Tribes and Tribal Courts. The result of the implementation of employment separation law and jurisprudence by Tribes and Tribal Courts is unnecessary litigation and emotional suffering. Part I of this Article describes the characteristics of employment with Indian Tribes and Tribal organizations. Tribes are usually close-knit communities that generally employ a significant percentage of Tribal Members. Part II describes the legal structures required by the Euro-American legal system as imposed on Indian Tribes and considers how these structures create significant legal problems for the Tribes and social problems for the Indian communities. Part III analyzes the Tribal law of sovereign immunity as it applies to lawsuits by discharged employees in Tribal Courts. Part IV proposes the reduction of harms associated with employment separations. Since most Tribes have adopted significant portions of Euro-American law and jurisprudence, a blanket restructuring of Tribal legal systems would be extremely difficult. This proposal cuts through much of problems associated with adjudicating Tribal employment separation disputes.


Thursday, February 24, 2005
 
Welcome to the Blogosphere . . . to Opinio Juris, a weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics, with Chris Borgen, Julian Ku, and Peggy McGuinness.


 
Bridgeman on Cardozo & Formalism Curtis Bridgeman (Florida State University - College of Law) has posted Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context on SSRN. Here is the abstract:
    Allegheny College is a bit of an oddity. It deals with a narrow issue (the enforceability of promises to make donations to charities), and Cardozo's majority opinion is almost universally derided as at best confusing and at worst outright devious. Yet it is still included in most contracts casebooks and taught by most contracts professors, usually as an introduction to the doctrine of promissory estoppel. In this paper, I defend the opinion - something almost no one has done without severe qualification - and argue that most of the criticisms are the result of a misguided emphasis on promissory estoppel. Although most scholars now agree that the case is decided on consideration grounds, the invocation of promissory estoppel is usually explained away as some sort of rhetorical flourish or deceit, probably designed ultimately to undermine the doctrine of consideration. I take on some of this scholarship, and then argue by contrast that the reference to promissory estoppel is not meant even to suggest that promissory estoppel controls in this case, but rather to show that whether bargaining has taken place (and therefore whether a promise is supported by consideration) depends very much on context. The key move in Cardozo's opinion is not only finding the return implied promise by the college, but also claiming that Ms. Johnston made her promise in order to induce Allegheny College to obligate itself, a point that has gone almost unnoticed in the scholarship. Perhaps more importantly, I argue that there is a larger lesson for us here about contracts jurisprudence. Finding bargaining in such an instance would likely be an unwarranted stretch in a normal business setting, but it makes perfect sense in the context of charitable subscriptions. I argue that this sensitivity to context is of a piece with two of Cardozo's other famous opinions, Wood v. Lucy and DeCicco v. Schweizer. There is room between the caricature of formalism as completely blind to particular facts and the caricature of realism as completely unbound by legal rules. Cardozo displays a jurisprudence that shows respect for the formalities of contract law, but insists on applying those rules in a way that understands transactions the way the parties themselves did.
Just read this last week, highly recommended!


 
Thursday Calendar
    Florida State University School of Law: Lawrence Solum, University of San Diego School of Law Virture Jurisprudence: An Aretaic Theory of Law. (See Wednesday for an excerpt.).
    UCLA Legal Theory Seminar: Jules Coleman, Legal Positivism Since H.L.A. Hart. Here is a taste:
      Dworkin is inclined to trivialize what it is about law that is of interest to positivists. He often associates positivism with a social science project that we are ill suited for. The only philosophical projects he allows that we might be interested are not interesting: either an account of the meaning of ‘law,’ or the individuation of norms. Now frankly I am interested in the first of these projects, but not for the reasons Dworkin thinks, and every positivist is interested in the latter project but not as a vapid or empty exercise. Rather, it is an interesting feature of our social lives that we participate at any one time in a wide range of normative social practices. They are similar to one another in certain ways, and different from one another in other ways. Our participation is different, our reasons for doing so differ; the claims these practices make on us our different. We want to explore the distinguishing features of the practices because we want to know how they differ from one another and how they are similar to one another, and we want to know how and why the claims they make on us differ. In other words we want to understand important aspects of ourselves in the social world. At the end of the day, jurisprudence is important to the human project of self-understanding. I don’t think that is any less worthy or suspect that understanding the law from the point of view of central concerns in political philosophy. I doubt that one has to be a positivist either to appreciate the importance of jurisprudence to understanding ourselves from the first person perspective in the social world.
    Yale Legal Theory Workshop: Michele Landis-Dauber, Stanford (Law), "The Sympathetic State" & Book Proposal. Here is the abstract from "The Sympathetic State":
      Despite nearly universal scholarly agreement on the absence of federal redistribution during the late nineteenth and early twentieth centuries (except for Civil War pensions), the frequency and generosity of federal disaster relief appropriations actually escalated during this period. These appropriations, which included such measures as the Freedmen’s Bureau and other Southern war relief, and relief of floods, fires, and earthquakes, were seen as constitutionally unproblematic and indeed mandated by precedent. Not surprisingly, members of Congress and other advocates for the poor pointed to disaster appropriations, albeit unsuccessfully, as a precedent for spending policy innovations. For example, Congressional Populists argued during the Depression of 1893 that unemployment relief was analogous to disaster relief. Proponents of Henry Blair’s bill for federal aid to common schools in the 1880s made a similar case, also fruitlessly. Similarly, disaster relief precedents figured prominently in Supreme Court litigation, including the Sugar Bounty cases in the 1890s. The efforts by claimants in all of these instances to expand the definition of what could legitimately count as a “disaster” that could be relieved with federal funds foreshadowed the similar, though more successful, efforts by New Dealers during the 1930s on behalf of the unemployed, tenant farmers, and the elderly.
    UC Berkeley, Workshop in Law, Philosophy, & Political Theory: Samuel Freeman, Steven F. Goldstone Term Professor of Philosophy and Law, University of Pennsylvania, Distributive Justice and the Law of Peoples. Here's a taste from the conclusion:
      I have argued that the main reasons for Rawls’s social grounding of distributive justice are political and institutional–they concern the social conditions of the possibility of the creation, distribution, and enjoyment of income and wealth, particularly in a democratic society. That is to say, distributive justice is not a simple question of allocating a fix sum of wealth according to some division principle and without regard to how it is created. Nor is it a problem of alleviating poverty, handicaps, or brute bad luck. These are surely problems of justice, and must be addressed by any society, democratic or otherwise, and in some cases addressed internationally by the Society of Peoples. But they are not problems of distributive justice, as Rawls conceives it.
    Lior Strahilevitz, Chicago, A Social Networks Theory of Privacy.
    Northwestern Tax Series: Karen Burke, Warren Distinguished Professor of Law, University of San Diego, "Black & Decker's Contingent Liability Shelter: 'A Thing of Grace and Beauty'?".
    Oxford Public International Law Discussion Group: Robert McCorquodale, The international community and international law-making: towards an inclusive international legal system.
    Georgetown, Transnational Legal Issues: Bill Bratton, Comparative Corporate Governance.
    Boston University School of Law: Geoff Miller, NYU, TBA.
    George Mason University School of Law: Charles Keckler, GMU School of Law Visiting Assistant Professor, Life v. Death: Why Capital Punishment Should Marginally Deter.


 
Conference Announcement: The Constitution in 2020 at Yale
    THE CONSTITUTION IN 2020 April 8 - 10, 2005 Yale Law School Progressives need to set a constitutional agenda for the 21st Century. In the early 1980s a coalition of conservative groups produced a white paper known as "The Constitution in 2000," which has importantly shaped the Constitution under which we now live. To reclaim the Constitution for progressive values, we must now begin to articulate constitutional ideals capable of inspiring the next generation of judges, lawyers, scholars, policymakers and activists. In this spirit, we now invite you to a conference at the Yale Law School on "The Constitution in 2020." The Conference will be held April 8 - 10, 2005. The conference will bring together influential members of the legal academy, leaders of progressive organizations, experienced practitioners, and significant policy-makers. In break-out groups and in networking sessions, in panels and over meals, we shall discuss a broad range of progressive issues. These issues will range from the challenges of terrorism and globalization to the reconceptualization and protection of equality, from politics in the 21st Century to contemporary criminal justice, from securing individual liberties to constituting group identities. For a conference schedule and speakers, see http://www.law.yale.edu/acs/conference/schedule/ The conversation has already begun on the conference weblog, available at http://constitutionin2020.blogspot.com/ And to register, please visit http://www.law.yale.edu/acs/conference/registration/ We hope you will be able to join us for this exciting project. http://www.law.yale.edu/acs/conference/brochure.pdf


Wednesday, February 23, 2005
 
Wednesday Calendar
    Saint Louis University, School of Law: Lawrence Solum, University of San Diego School of Law Virture Jurisprudence: An Aretaic Theory of Law. Here is a taste:
      Contemporary legal theory in the United States has been dominated by the realist paradigm. The extreme version of realism is captured by the slogan of the critical legal studies movement: “Law is politics!” Other heirs to the realist tradition (including normative law and economics, the legal process school, legal pragmatism, and so forth) coalesce around what we might call the instrumentalist thesis—the point of legal institutions (especially courts) is to use the law as an instrument to achieve the goals of some normative theory (such as welfarism or deontology ) or a political ideology (of the left, right, or center). There are, of course, opposing tendencies in contemporary legal theory. Some neoformalists emphasize the duty of adjudicators to follow the law and give the parties what they are due; in a rough and ready sort of way, these neoformalists adopt a deontological perspective on legal theory that competes with the consequentialism of contemporary neorealists. In this paper, I sketch an alternative direction for contemporary legal theory, an approach that I call “virtue jurisprudence.” My core idea is quite simple. In moral theory, virtue ethics offers a third way—an alternative to the deontological and consequentialist approaches that dominated modern moral philosophy until very recently. What would happen if we transplanted virtue ethics into normative legal theory? This paper offers the sketch of an answer to that question.
    University College, London-Colloquium in Legal and Social Philosophy: Professor Simon Blackburn (Cambridge), 'Hume, Justice and Sentiment'. Here is a taste:
      The popularity of rationalism, and the general feeling that there ‘must be something to’ the kinds of argument I have been discussing, are very deep-rooted. Partly, they represent a noble dream. They answer a wish that the knaves of the world can be not only confined and confounded, but refuted – refuted as well by standards that they have to acknowledge. Ideally, the will be shown to be in a state akin to self contradiction. Kerstein acknowledges that Kant and neo-Kantians have not achieved anything like this result. But it is still, tantalizingly there as a goal or ideal, the Holy Grail of moral philosophy, and many suppose that all right-thinking people must join the pilgrimage to find it. We sentimentalists do not like our good behaviour to be hostage to such a search. We don’t altogether approve of Holy Grails. We do not see the need for them. We are not quite on all fours with those who do. And we do not quite see why, even if by some secret alchemy a philosopher managed to glimpse one, it should ameliorate his behaviour, let alone that of other people. We think instead that human beings are ruled by passions, and the best we can do it to educate people so that the best passions are also the most forceful. We say of rationalistic moral philosophy what Hume says of abstract reasonings in general, that when we leave our closet, and engage in the common affairs of life, its conclusions seem to vanish, like the phantoms of the night on the appearance of the morning.
    Hofstra University School of Law: Monroe Freedman, Hofstra Law School, “The Public Defender and Triage—Gideon’s Trumpet Becomes Gideon’s Strumpet”.
    NYU Legal History: Deborah Malamud, An-Bryce Professor of Law, NYU School of Law.
    Nuffield College, Oxford: Antanas Mockus, Culture and Law Enforcement.
    UCLA Legal History: Ariela Dubler, Columbia, Immoral Purposes: The Genus of Illicit Sex and the Marriage Cure.


 
Conference Announcement: Robert Merrihew Adams
    Metaphysics, History, Ethics: A conference in honor of Robert Merrihew Adams April 8-10, 2005 at Yale University The Philosophy Department at Yale University will host a conference in honor of Robert Adams. In recognition of the breadth of Robert Adams' own philosophical work, speakers will cover topics in metaphysics, ethics, and the history of philosophy. Speakers: Shelly Kagan David Kaplan Derk Pereboom Robert Sleigh Jeffrey Stout Susan Wolf Allen Wood Dean Zimmerman Commentators: Keith DeRose William FitzPatrick Calvin Normore Marleen Rozemond Jerry Schneewind Houston Smit Nicholas Wolterstorff For more information about the conference or to register for the conference, view the website at http://www.yale.edu/philos/events/Bobfest.htm or contact Larry Jorgensen (larry.jorgensen@yale.edu).
Adams was one my favorite teachers at UCLA. This is a well-deserved honor!


 
Schauer on the Practical Dimension of Choosing Our Concept of Law Frederick Schauer (Harvard University - John F. Kennedy School of Government) has posted The Social Constructioon of the Concept of Law: A Reply to Julie Dickson (Oxford Journal of Legal Studies, Vol. 25, 2005) on SSRN. Here is the abstract:
    In Evaluation and Legal Theory, Julie Dickson argues, against me and against Hart, that the beneficial moral consequences attaching to accepting one or another concept of law should have no place in deciding which concept of law is true. In response, I argue that a concept of law, as both Dickson and I acknowledge, is subject to change over time, and may vary across cultures. Yet once we recognize that the concept of law is contingent and variable, we can recognize that prescribing what the concept of law ought to be is no less plausible an enterprise than describing what our concept of law now is. And for the prescriptive enterprise, although plainly not for the descriptive one, the beneficial moral consequences flowing from accepting a particular concept of law are an unavoidable component of the task.
Schauer's point is an important one--highly recommended!


Tuesday, February 22, 2005
 
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Veronica Rodriguez-Blanco, A Detached Viewpoint in Legal Theory. Here is a taste:
      I have attempted to show that it is plausible to describe or explain normative concepts from a ‘detached’ viewpoint. Contra Dworkin, I have argued the theorist need not to be ‘morally engaged’ to explain the moral or practical viewpoint of our evaluative practices. The use of Nagel’s inside-outside approach has been enriched with Raz’s notion of ‘relative independence of interlinked concepts’ and has enabled us to show that any inquiry into normative concepts might begin from an inside perspective that aims at an expansion towards an objective or ‘detached’ viewpoint . There are different degrees of objectivity and an important overlapping of detached or objective reasons.
    University of Chicago, Law & Economics: Thomas Hubbard, University of Chicago Graduate School of Business, Hierarchies, Specialization, and the Utilization of Knowledge: Theory and Evidence from the Legal Services Industry.
    Georgetown Law: Gowri Ramachandran, "Intersectionals and Assimilation: Blurring the Line Between 'Reasonable' Identity Performance Demands and Irrational Discrimination".
    Lewis & Clark Law: Lydia Loren The Fallacy of the Extra Element.
    Oxford Taxation Law: Ian Menzies-Conacher, Group Taxation Director, Barclays plc and James Bullock, tax litigation partner, McGrigors, Implications of the judgments of the House of Lords in the Barclays Mercantile and Scottish Provident cases.
    Oxford Intellectual Property Research Centre: Rainer Moufang, Intellectual Property in the New Millennium: Recent Developments in the Case Law of the European Patent Office Boards of Appeal.
    Oxford Centre for Socio-Legal Studies: Roger Cotterrell, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Should "Culture" Become a Legal Concept?
    University of Texas School of Law: John Dzienkowski, Personal Conflicts of Interest.
    Widener Law School (Delaware campus): Seth Barrett Tillman, Original Understanding of the Orders, Resolutions and Votes Clause -- What James Madison Failed to Learn from the Westminster Parliamentary Tradition--based on A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned & The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson.


 
Rossi on a Political Process Bargaining Approach to Antitrust Federalism Jim Rossi (Florida State University - College of Law) has posted Political Bargaining and Judicial Intervention in Constitutional and Antitrust Federalism on SSRN. Here is the abstract:
    Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose of deterring the adoption of regulations with adverse spillover effects for those who do not participate in the relevant lawmaking process. The Article illustrates how a political process bargaining approach to these doctrines differs in its recommendations from traditional formulations, with implications for the degree of deference courts afford state and local laws.


 
Charles on Hasen Guy-Uriel E. Charles (University of Minnesota School of Law) has posted Judging the Law of Politics (Michigan Law Review, March 2005) on SSRN. Here is the abstract:
    In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, The Supreme Court and Election Law, against the recent work of a leading structuralist, Professor Richard Pildes' recent foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship between rights and structure; an understanding that prevailed in the early articulation of structuralism's relevance to judicial review of democratic politics. I shall argue that election law cases cannot be divided into neat categories along the individual rights and structuralism divide. Election law cases raise both issues of individual and structural rights. Therefore, the label attached to election law claims is immaterial. The fundamental questions are what are the values that judicial review ought to vindicate and how best to vindicate those values. These are questions that transcend the rights-structure divide.


 
Lipshaw on a Theory of Promise & Contract Jeffrey M. Lipshaw (Indiana University School of Law - Indianapolis) has posted Duty and Consequence: A Non-Conflating Theory of Promise and Contract on SSRN. Here is the abstract:
    This is a short introductory essay laying out a thesis for a more involved project. The thesis is that the general debate between deontologists and consequentialists of law, played out in the microcosm of promise and contract, is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our relationships ought to be ordered). There is irony in the overwhelming interest of the consequentialist legal academy in trying to find a scientific answer to our most fundamental questions of duty and deontologists to defend morality consequentially. I argue that there are limits to each and that we operate consequentially and deontologically in the ordering of our private affairs, often simultaneously. The mistakes (typical of reason's drive to a single maximand) are assuming, on one hand, that contractual consequentialism defines our commercial relationships, or, on the other, that contracts are capable of containing our moral obligations. Put another way, there is nothing sanctified about the contract (versus the underlying promise), and the conflation of the two is the source of the confusion over the limits of the law of contract. The transcendental aspect of the contract is the underlying promise - its soul, so to speak - but the law can only doctor its body, what shows in the contract.


 
Berman on the Historical Foundation of Law Harold Berman (Emory University - School of Law) has posted The Historical Foundation of Law (Emory Law Journal, Vol. 54, 2005) on SSRN. Here is the abstract:
    The historical school of jurisprudence needs to be revived in order to reconcile the two other major schools - positivism and natural-law theory - and thus to create an integrative jurisprudence that will respond to the historical challenges that confront the Western legal tradition in the twenty-first century. Prior to the so-called Enlightenment of the 18th century, the three schools were not sharply separated. It was almost universally presupposed among Western legal philosophers that the tri-une God is the ultimate source of order, of justice, and of human destiny - all three. Thus it was possible to integrate in theological terms - despite differences between Roman Catholic and Protestant jurisprudence - the political, the moral, and the historical dimensions of law. Today the positivist interprets legal rules according to their plain meaning or, in case of ambiguity, according to the policies they represent, while the naturalist considers also the implicit moral purposes of the rules in the light of the system of justice of which they are a part. Missing in the debate between them is a recognition of the normative significance of the historical dimension of law, which may permit or even compel an accommodation between politics and morality. The historical school emerged as a separate school of legal philosophy in the early 19th century, after the positivist school had broken off from the natural law school. In arguing that Germany was not historically ready for the adoption of a civil code, Savigny wrote that "law is developed first by custom and belief of the people, then by legal science - everywhere, therefore, by internal, silently operating powers, not by the arbitrary will of the legislator." In the late 20th century the historical school, which had predominated for almost a century, came under attack in Europe and America partly for exalting the spirit of the nation as the ultimate source of the development of law and partly for demeaning the positive role of the will of the lawmaker. In the twenty-first century fundamental issues that now confront lawmakers require, for their proper solution, a broad historical perspective. The Western legal tradition is now in crisis partly because of the weakening of the belief system on which it was originally based and partly because it now confronts other legal traditions in the gradual construction of a body of transnational and transcultural world law.


Monday, February 21, 2005
 
Conference Announcement: Action and Values
    ACTION and VALUES: A Conference in Honor of the Publication of Gary Watson's book, Agency and Answerability, at UC Riverside. Since the 1970s Gary Watson has published a series of influential essays on human action, examining such questions as: in what ways are we free and not free, rational and irrational, responsible or not for what we do? Moral philosophers and philosophers of action will welcome this collection, representing one of the most important bodies of work in the field. Keynote speakers: Michael Bratman, Professor of Philosophy, Stanford University, paper to be presented: "Three Theories of Self-Governance" (updated 02/07/05); with comments by Daniel Speak, Asst. Professor, Azusa Pacific University Stephen Darwall, Professor of Philosophy, University of Michigan, paper to be presented: "Moral Obligation and Accountability"; with comments by Andrew Eshleman, Assoc. Professor, University of Arkansas, Little Rock Other Participants include: Harry Frankfurt, Princeton University (emeritus); Barbara Herman, UCLA; Alfred Mele, Florida State University; Dana Nelkin, UC San Diego Conference Schedule: Saturday, February 26, 2005, HMNSS 1500, UC Riverside. 11 am Coffee, Registration Noon-12:15 Welcome: John Fischer, Philosophy; Emory Elliott, University Professor (English) and Director, Center for Ideas and Society 12:15-2:15 Michael Bratman, "Three Theories of Self-Governance"; with comments by Daniel Speak (Chair for session: William Bracken) 2:15-2:30 Break; sandwiches 2:30-4:30 Stephen Darwall, "Moral Obligation and Accountability"; with comments by Andrew Eshleman (Chair for session: Andrews Reath) 4:30-4:45 Break 4:45-approx. 7 Panel Discussion (Chair, Moderator: Manuel Vargas) Participants: Barbara Herman, Alfred Mele, Dana Nelkin, Harry Frankfurt [if he wishes--up to him] 7-approx. 8:45 Drinks, Reception, Dinner HMNSS 1500 For questions or more information on this event, please contact the conference organizer, John Martin Fischer (John.Fischer@ucr.edu) or Janet Mauren (Janet.Mauren@urc.edu) in the Philosophy Department. In order to facilitate the planning of this event, please RSVP to Janet Mauren by e-mail or by phone @ 951-827-5209 by February 22, 2005.


 
Monday Calendar
    Columbia Law & Economics: Anup Malani, University of Virginia, School of Law and Albert Choi, University of Virginia, "Are Non-Profit Firms Simply For-Profits in Disguise? Evidence from Executive Compensation in the Nursing Home Industry". Here is the abstract:
      It is well-established that non-profit hospitals employperformance bonuses with much lower frequency than for-profit hospitals. Weisbrod (1999, 2003a, 2003b) suggest that this implies that principals of non-profit and for-profit firms have different objectives or purposes. Brickley and Van Horn (2002) dispute the different-objectives hypothesis. They present evidence that the salaries and turnover of executives at non-profit hospitals reward financial performance but not altruistic tivities. Employing a unique data set of executive compensation at 2,700 nursing homes in 2001 and 2002, this paper improves on Brickley and Van Horn's analysis in three important ways. First, we provide an explanation for how non-profit firms and for-profit firms may both seek to reward financial performance but write different executive compensation contracts. This explanation relies upon tax penalties on the use of financial rewards for executives by non-profit firms. Second, we introduce direct comparisons of wages at non-profit and for-profit facilities as well as superior controls for quality of patient care and the risk profile of patients. Third, we consider the implications of observed patterns in executive compensation for alternative theories of non-profit behavior, such as quality/quantity maximization. We conclude that executive compensation at non-profit firms supports that the hypothesis that principals at non-profit firms either care about profits just like principals at for-profit firms (the strong version of the for-profit-in-disguise model) or behave as if they do (the weak version).
    Georgetown International Legal Theory Colloquium: Paul Stephan, University of Virginia School of Law, "The New Leviathan - Enforcing International Law in the Twenty-First Century"
    Oxford Moral Philosophy Seminar: Folke Tersman, Stockholm.
    Stanford The Center for Internet and Society and the Stanford Law and Technology Association: Elizabeth Townsend, CIS Non-residential Fellow, Assessing the Arrival of the Unpublished Public Domain in the Internet Age.
    Oxford Environmental Law Discussion Group: Dr Liz Fisher & Dr Lucia Zedner, Risk Assessment: Perspectives From Environmental Law and Criminology.
    University of Texas Law and Economics Workshop: Kate Litvak, UT, "Governance Through Exit: Default Penalties and Walkaway Options in Venture Capital Partnership Agreeements".
    Vanderbilt University School of Law: Richard Brooks, Yale.
    Washington & Lee University, School of Law: Michele Goodwin, DePaul University.


 
Three by Arneson Richard Arneson (UCSD Philosophy & USD Law) has posted three new papers:
    Justice after Rawls:
      In the mid-twentieth century John Rawls single-handedly revived Anglo-American political philosophy, which had not seen significant progress since the development and elaboration of utilitarianism in the nineteenth century. Rawls re-invented the discipline by revising the social contract tradition of Locke Rousseau, and Kant. A series of essays starting with “Justice as Fairness” culminated in a monumental treatise, A Theory of Justice (Rawls 1999a). That theory of justice was in turn qualified and set in a new framework by an account of legitimate political authority to which Rawls gave a definitive formulation in his second book, Political Liberalism (Rawls 1996). Rawls also produced an important monograph on justice in international relations, The Law of Peoples (Rawls 1999c) . Rawls’s achievements continue to set the contemporary terms of debate on theories of social justice. This essay comments on the present state of play in the political philosophy discussions that Rawls initiated and stimulated.
    Distributive Justice and Basic Capability Equality: 'Good Enough' Is Not Good Enough:
      “Sen’s proposal is that distributive justice entails equalizing midfare levels across persons,” writes John Roemer. “Other things being equal,” one has to add by way of correction to Roemer’s formulation. Sen holds that we should be concerned with the extent of people’s capability or freedom to attain midfare as well as the midfare level actually reached. Sen holds that distributive values including equality must be balanced against and should sometimes be sacrificed to aggregative values. We should care about how much of the good things of life people get as well as how evenly they are distributed. Also, what Roemer is calling “midfare” according to Sen is not one thing but itself a plurality: the many functionings (doings and beings) that people have reason to value so far as they are seeking their own well-being. Sen does not affirm that there is a single canonical measure of these functionings, so the ideal of equality of midfare is in an important sense indeterminate. Besides well-being as midfare functionings and freedom to get well-being the just society also properly promotes and distributes agency achievement, the attainment of goals one has reason to value, and freedom to attain agency goals.
    Sophisticated Rule Consequentialism: Some Simple Objections
      The popularity of rule-consequentialism among philosophers has waxed and waned. Waned, mostly; at least lately. The idea that the morality that ought to claim allegiance is the ideal code of rules whose acceptance by everybody would bring about best consequences became the object of careful analysis about half a century ago, in the writings of J. J. C. Smart, John Rawls, David Lyons, Richard Brandt, Richard Hare, and others.1 They considered utilitarian versions of rule consequentialism but discovered flaws in the view that attach to the wider consequentialist doctrine. In the eyes of many, the flaws were decisive. Brad Hooker has produced brilliant work that unsettles this complacent consensus. Over a period of several years he has produced a sustained and powerful defense of a version of rule consequentialism that does not obviously succumb to the criticisms that have been thought to render this doctrine a nonstarter. He acknowledges intellectual debts to Richard Brandt. But Hooker avoid certain excrescences in Brandt’s efforts to conceive of morality as an ideal code of rules. Most notably, Hooker eschews Brandt’s misguided attempt to derive some version of rule utilitarianism from an underlying commitment to some form of contractualism. Moreover, Hooker has worked to articulate a version of rule consequentialism in sufficient detail that one can see how the different parts of the doctrine hang together and how the best version of the doctrine must confront many discrete choices of formulation and make the best choice at each of these many decision nodes.
Arneson is one of the best. All three are highly recommended!


 
Garvey on the Heat of Passion Stephen P. Garvey (Cornell Law School) has posted Passion's Puzzle (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
    The puzzle of the provocation defense, otherwise known as the "heat of passion" defense, is to figure out how, if at all, each of the basic elements of the doctrine can be explained in a coherent and normatively attractive fashion. None of the prevailing theories of provocation succeeds in solving this puzzle. These theories either fail to explain one or more of the basic elements of the doctrine, or else end up committing the state to a decidedly illiberal course of action: punishing citizens not only for what they do (for their actions), but for who they are (for their characters). I offer an alternative theory, called provocation as akrasia, which I suggest can solve the puzzle. According to this theory, the basic elements of the defense work in concert to achieve the normatively attractive goal of sorting actors who kill in defiance of the law (and who should therefore be convicted of murder) from those who kill in a moment of culpable ignorance of law or weakness of will (and who should therefore be convicted of the lesser crime of manslaughter). Insofar as this theory justifies and so defends the basic contours of existing provocation doctrine, it challenges those who view the doctrine, in some or all of its formulations, as a pernicious presence in the criminal law.


Sunday, February 20, 2005
 
Legal Theory Calendar
    Monday, February 21
      Columbia Law & Economics: Anup Malani, University of Virginia, School of Law and Albert Choi, University of Virginia, "Are Non-Profit Firms Simply For-Profits in Disguise? Evidence from Executive Compensation in the Nursing Home Industry". Here is the abstract:
        It is well-established that non-profit hospitals employperformance bonuses with much lower frequency than for-profit hospitals. Weisbrod (1999, 2003a, 2003b) suggest that this implies that principals of non-profit and for-profit firms have different objectives or purposes. Brickley and Van Horn (2002) dispute the different-objectives hypothesis. They present evidence that the salaries and turnover of executives at non-profit hospitals reward financial performance but not altruistic tivities. Employing a unique data set of executive compensation at 2,700 nursing homes in 2001 and 2002, this paper improves on Brickley and Van Horn's analysis in three important ways. First, we provide an explanation for how non-profit firms and for-profit firms may both seek to reward financial performance but write different executive compensation contracts. This explanation relies upon tax penalties on the use of financial rewards for executives by non-profit firms. Second, we introduce direct comparisons of wages at non-profit and for-profit facilities as well as superior controls for quality of patient care and the risk profile of patients. Third, we consider the implications of observed patterns in executive compensation for alternative theories of non-profit behavior, such as quality/quantity maximization. We conclude that executive compensation at non-profit firms supports that the hypothesis that principals at non-profit firms either care about profits just like principals at for-profit firms (the strong version of the for-profit-in-disguise model) or behave as if they do (the weak version).
      Georgetown International Legal Theory Colloquium: Paul Stephan, University of Virginia School of Law, "The New Leviathan - Enforcing International Law in the Twenty-First Century"
      Oxford Moral Philosophy Seminar: Folke Tersman, Stockholm.
      Stanford The Center for Internet and Society and the Stanford Law and Technology Association: Elizabeth Townsend, CIS Non-residential Fellow, Assessing the Arrival of the Unpublished Public Domain in the Internet Age.
      Oxford Environmental Law Discussion Group: Dr Liz Fisher & Dr Lucia Zedner, Risk Assessment: Perspectives From Environmental Law and Criminology.
      University of Texas Law and Economics Workshop: Kate Litvak, UT, "Governance Through Exit: Default Penalties and Walkaway Options in Venture Capital Partnership Agreeements".
      Vanderbilt University School of Law: Richard Brooks, Yale.
      Washington & Lee University, School of Law: Michele Goodwin, DePaul University.
    Tuesday, February 22
      Oxford Jurisprudence Discussion Group: Veronica Rodriguez-Blanco, A Detached Viewpoint in Legal Theory. Here is a taste:
        I have attempted to show that it is plausible to describe or explain normative concepts from a ‘detached’ viewpoint. Contra Dworkin, I have argued the theorist need not to be ‘morally engaged’ to explain the moral or practical viewpoint of our evaluative practices. The use of Nagel’s inside-outside approach has been enriched with Raz’s notion of ‘relative independence of interlinked concepts’ and has enabled us to show that any inquiry into normative concepts might begin from an inside perspective that aims at an expansion towards an objective or ‘detached’ viewpoint . There are different degrees of objectivity and an important overlapping of detached or objective reasons.
      University of Chicago, Law & Economics: Thomas Hubbard, University of Chicago Graduate School of Business, Hierarchies, Specialization, and the Utilization of Knowledge: Theory and Evidence from the Legal Services Industry.
      Georgetown Law: Gowri Ramachandran, "Intersectionals and Assimilation: Blurring the Line Between 'Reasonable' Identity Performance Demands and Irrational Discrimination".
      Lewis & Clark Law: Lydia Loren The Fallacy of the Extra Element.
      Oxford Taxation Law: Ian Menzies-Conacher, Group Taxation Director, Barclays plc and James Bullock, tax litigation partner, McGrigors, Implications of the judgments of the House of Lords in the Barclays Mercantile and Scottish Provident cases.
      Oxford Intellectual Property Research Centre: Rainer Moufang, Intellectual Property in the New Millennium: Recent Developments in the Case Law of the European Patent Office Boards of Appeal.
      Oxford Centre for Socio-Legal Studies: Roger Cotterrell, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Should "Culture" Become a Legal Concept?
      University of Texas School of Law: John Dzienkowski, Personal Conflicts of Interest.
      Widener Law School (Delaware campus): Seth Barrett Tillman, Original Understanding of the Orders, Resolutions and Votes Clause -- What James Madison Failed to Learn from the Westminster Parliamentary Tradition--based on A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned & The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson.
    Wednesday, February 23
      Saint Louis University, School of Law: Lawrence Solum, University of San Diego School of Law Virture Jurisprudence: An Aretaic Theory of Law. Here is a taste:
        Contemporary legal theory in the United States has been dominated by the realist paradigm. The extreme version of realism is captured by the slogan of the critical legal studies movement: “Law is politics!” Other heirs to the realist tradition (including normative law and economics, the legal process school, legal pragmatism, and so forth) coalesce around what we might call the instrumentalist thesis—the point of legal institutions (especially courts) is to use the law as an instrument to achieve the goals of some normative theory (such as welfarism or deontology ) or a political ideology (of the left, right, or center). There are, of course, opposing tendencies in contemporary legal theory. Some neoformalists emphasize the duty of adjudicators to follow the law and give the parties what they are due; in a rough and ready sort of way, these neoformalists adopt a deontological perspective on legal theory that competes with the consequentialism of contemporary neorealists. In this paper, I sketch an alternative direction for contemporary legal theory, an approach that I call “virtue jurisprudence.” My core idea is quite simple. In moral theory, virtue ethics offers a third way—an alternative to the deontological and consequentialist approaches that dominated modern moral philosophy until very recently. What would happen if we transplanted virtue ethics into normative legal theory? This paper offers the sketch of an answer to that question.
      University College, London-Colloquium in Legal and Social Philosophy: Professor Simon Blackburn (Cambridge), 'Hume, Justice and Sentiment'. Here is a taste:
        The popularity of rationalism, and the general feeling that there ‘must be something to’ the kinds of argument I have been discussing, are very deep-rooted. Partly, they represent a noble dream. They answer a wish that the knaves of the world can be not only confined and confounded, but refuted – refuted as well by standards that they have to acknowledge. Ideally, the will be shown to be in a state akin to self contradiction. Kerstein acknowledges that Kant and neo-Kantians have not achieved anything like this result. But it is still, tantalizingly there as a goal or ideal, the Holy Grail of moral philosophy, and many suppose that all right-thinking people must join the pilgrimage to find it. We sentimentalists do not like our good behaviour to be hostage to such a search. We don’t altogether approve of Holy Grails. We do not see the need for them. We are not quite on all fours with those who do. And we do not quite see why, even if by some secret alchemy a philosopher managed to glimpse one, it should ameliorate his behaviour, let alone that of other people. We think instead that human beings are ruled by passions, and the best we can do it to educate people so that the best passions are also the most forceful. We say of rationalistic moral philosophy what Hume says of abstract reasonings in general, that when we leave our closet, and engage in the common affairs of life, its conclusions seem to vanish, like the phantoms of the night on the appearance of the morning.
      Hofstra University School of Law: Monroe Freedman, Hofstra Law School, “The Public Defender and Triage—Gideon’s Trumpet Becomes Gideon’s Strumpet”.
      NYU Legal History: Deborah Malamud, An-Bryce Professor of Law, NYU School of Law.
      Nuffield College, Oxford: Antanas Mockus, Culture and Law Enforcement.
      UCLA Legal History: Ariela Dubler, Columbia, Immoral Purposes: The Genus of Illicit Sex and the Marriage Cure.
    Thursday, February 24
      Florida State University School of Law: Lawrence Solum, University of San Diego School of Law Virture Jurisprudence: An Aretaic Theory of Law. (See Wednesday for an excerpt.).
      UCLA Legal Theory Seminar: Jules Coleman, Legal Positivism Since H.L.A. Hart. Here is a taste:
        Dworkin is inclined to trivialize what it is about law that is of interest to positivists. He often associates positivism with a social science project that we are ill suited for. The only philosophical projects he allows that we might be interested are not interesting: either an account of the meaning of ‘law,’ or the individuation of norms. Now frankly I am interested in the first of these projects, but not for the reasons Dworkin thinks, and every positivist is interested in the latter project but not as a vapid or empty exercise. Rather, it is an interesting feature of our social lives that we participate at any one time in a wide range of normative social practices. They are similar to one another in certain ways, and different from one another in other ways. Our participation is different, our reasons for doing so differ; the claims these practices make on us our different. We want to explore the distinguishing features of the practices because we want to know how they differ from one another and how they are similar to one another, and we want to know how and why the claims they make on us differ. In other words we want to understand important aspects of ourselves in the social world. At the end of the day, jurisprudence is important to the human project of self-understanding. I don’t think that is any less worthy or suspect that understanding the law from the point of view of central concerns in political philosophy. I doubt that one has to be a positivist either to appreciate the importance of jurisprudence to understanding ourselves from the first person perspective in the social world.
      Yale Legal Theory Workshop: Michele Landis-Dauber, Stanford (Law), "The Sympathetic State" & Book Proposal. Here is the abstract from "The Sympathetic State":
        Despite nearly universal scholarly agreement on the absence of federal redistribution during the late nineteenth and early twentieth centuries (except for Civil War pensions), the frequency and generosity of federal disaster relief appropriations actually escalated during this period. These appropriations, which included such measures as the Freedmen’s Bureau and other Southern war relief, and relief of floods, fires, and earthquakes, were seen as constitutionally unproblematic and indeed mandated by precedent. Not surprisingly, members of Congress and other advocates for the poor pointed to disaster appropriations, albeit unsuccessfully, as a precedent for spending policy innovations. For example, Congressional Populists argued during the Depression of 1893 that unemployment relief was analogous to disaster relief. Proponents of Henry Blair’s bill for federal aid to common schools in the 1880s made a similar case, also fruitlessly. Similarly, disaster relief precedents figured prominently in Supreme Court litigation, including the Sugar Bounty cases in the 1890s. The efforts by claimants in all of these instances to expand the definition of what could legitimately count as a “disaster” that could be relieved with federal funds foreshadowed the similar, though more successful, efforts by New Dealers during the 1930s on behalf of the unemployed, tenant farmers, and the elderly.
      UC Berkeley, Workshop in Law, Philosophy, & Political Theory: Samuel Freeman, Steven F. Goldstone Term Professor of Philosophy and Law, University of Pennsylvania, Distributive Justice and the Law of Peoples. Here's a taste from the conclusion:
        I have argued that the main reasons for Rawls’s social grounding of distributive justice are political and institutional–they concern the social conditions of the possibility of the creation, distribution, and enjoyment of income and wealth, particularly in a democratic society. That is to say, distributive justice is not a simple question of allocating a fix sum of wealth according to some division principle and without regard to how it is created. Nor is it a problem of alleviating poverty, handicaps, or brute bad luck. These are surely problems of justice, and must be addressed by any society, democratic or otherwise, and in some cases addressed internationally by the Society of Peoples. But they are not problems of distributive justice, as Rawls conceives it.
      Lior Strahilevitz, Chicago, A Social Networks Theory of Privacy.
      Northwestern Tax Series: Karen Burke, Warren Distinguished Professor of Law, University of San Diego, "Black & Decker's Contingent Liability Shelter: 'A Thing of Grace and Beauty'?".
      Oxford Public International Law Discussion Group: Robert McCorquodale, The international community and international law-making: towards an inclusive international legal system.
      Georgetown, Transnational Legal Issues: Bill Bratton, Comparative Corporate Governance.
      Boston University School of Law: Geoff Miller, NYU, TBA.
      George Mason University School of Law: Charles Keckler, GMU School of Law Visiting Assistant Professor, Life v. Death: Why Capital Punishment Should Marginally Deter.
    Friday, February 25
      University of San Diego School of Law: Orin Kerr, George Washington University.
      UCLA School of Law: Mark Lemley, Stanford University School of Law, "Property, Intellectual Property, and Free Riding".
      University of Texas, School of Law: Ronald J. Mann, UT Law, & Seth Belzley, UT Law student, The Promise of Internet Intermediary Liability.
      University of Texas, School of Law: Thomas Kohler, Visiting Professor at UT from Boston College, "The Notion of Solidarity and the Secret History of American Labor Law".
      Oxford Centre for Competition Law & Policy: Sir John Vickers (Chairman, OFT), The abuse of market power.
      Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law, Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term: Mr. Kent Nnadozie (Nigeria), An International Regime on Access to Biodiversity and Sharing of its Benefits.
    Saturday, February 26


 
Legal Theory Lexicon: Public and Private Goods
    Introduction One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public goods (e.g. national security) should be provided by government whereas private goods (automobiles) ought to be provided by markets. For legal theorists, the line between public and private goods tracks one of the important fault lines in the law--between the private law fields of property, contract, tort, and so forth and public law fields such as environmental law, administrative law, and constitutional law. This post provides a basic introduction to the economic distinction between public and private goods for law students (especially first year law students) with an interest in legal theory.
    It may be helpful to quickly preview the basic idea. So here goes:
    • Public goods have two characteristics--nonrivalrousness and nonexcludability. For example, consumption of national defense is nonrivalrous (my being protected by the U.S. armed forces doesn't diminish your protection). National defense is a nonexcludable good: the Army cannot say to Mexico, "Solum hasn't paid his national defense bill, "Go ahead and attack him."
    • Private goods are rivalrous and excludable. If I own a laptop computer, my use of it diminished your ability to use it; therefore, my consumption of the laptop rivals yours. Moreover, I can exclude you from the use of my laptop (by locking it up when I am not using it).
    We use markets to provide goods like laptops (that excludable and rivalrous), but government provides goods like national defense (that are nonexcludable and nonrivalrous).
    A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following:
    • The phrase "public good" or "public goods" shall be used to refer to the economists’ idea of good that meets the criteria of nonrivalrousness and nonexcludability.
    • The phrases "public interest" or "common good" shall be used to refer to the idea of goods that benefit the public at large as distinguished from goods or interests that benefit a faction (or "special interest group").
    • The phrase "public resource" shall be used to refer to private goods that are owned by the government or held in trust for the public. National parks are indisputably public resources, but it may not be the case that they are public goods in the economic sense.
    We could use the phrase "public good" to refer to the public interest or to public resources, but for the purposes of this post, let's stipulate that "public good" shall be reserved for the economic sense of the phrase.
    The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.)
    "Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time.
    "Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law.
    Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle.
    But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should.
    As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed.
    The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two:
      1. Public goods are nonrivalrous and nonexcludable.
      2. Private goods are rivalrous and excludable.
      3. Toll goods are nonrivalrous and excludable.
      4. Common pool goods are rivalrous and nonexcludable.
    Table One shows the four categories as a two-by-two matrix:
    Table One: Public, Private, Common Pool, Toll, and Club Goods.
    __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________

    We've covered the first two categories, but we need to consider categories three and four. So let's do that now.
    Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods."
    One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property.
    Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.)
    Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course.
    Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good.
    Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward.


Saturday, February 19, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Contract Theory by by Patrick Bolton & Mathias Dewatripont. Here is a description:
    Despite the vast research literature on topics relating to contract theory, only a few of the field's core ideas are covered in microeconomics textbooks. This long-awaited book fills the need for a comprehensive textbook on contract theory suitable for use at the graduate and advanced undergraduate levels. It covers the areas of agency theory, information economics, and organization theory, highlighting common themes and methodologies and presenting the main ideas in an accessible way. It also presents many applications in all areas of economics, especially labor economics, industrial organization, and corporate finance. The book emphasizes applications rather than general theorems while providing self-contained, intuitive treatment of the simple models analyzed. In this way, it can also serve as a reference for researchers interested in building contract-theoretic models in applied contexts. The book covers all the major topics in contract theory taught in most graduate courses. It begins by discussing such basic ideas in incentive and information theory as screening, signaling, and moral hazard. Subsequent sections treat multilateral contracting with private information or hidden actions, covering auction theory, bilateral trade under private information, and the theory of the internal organization of firms; long-term contracts with private information or hidden actions; and incomplete contracts, the theory of ownership and control, and contracting with externalities. Each chapter ends with a guide to the relevant literature. Exercises appear in a separate chapter at the end of the book.


 
Download of the Week The Download of the Week is The Class Defense by Assaf Hamdani & Alon Klement. Here's the abstract:
    Lawmakers, courts, and legal scholars have long recognized that consolidating the claims of dispersed plaintiffs with similar grievances may promote justice and efficiency. In this Article, we argue that justice and efficiency also mandate that similarly positioned defendants be provided with an adequate procedure for consolidating their claims. We explore the circumstances under which litigation costs and collective action problems will prevent dispersed defendants with plausibly valid defense claims from confronting plaintiffs in court, and we analyze the troubling implications of this failure to litigate. We then demonstrate that consolidating defense claims would rectify the imbalance between the common plaintiff and defendants. To achieve defendant consolidation, we propose the creation of a new procedural device: the class defense. We outline the qualities that would make the class defense both effective and fair—that is, they would provide class attorneys with proper incentives, adequately protect the due process rights of absentee defendants, and minimize the risk of collusion. Finally, we show that the class defense procedure would afford defendants greater protection than its alternatives. Specifically, we argue that the class defense is a superior framework for resolving many disputes that currently take the form of class actions.
Highly recommended! The natural question concerns representation: who will pay the attorneys fees of the defendants in defendant class actions? Here is the suggested solution:
    With respect to incentives, the conventional premise is that providing class attorneys with considerable fees is necessary for an effective regime of representative litigation.18 In class actions, attorneys typically receive a share from the amount that the defendant pays the plaintiff class.19 In the class defense setting, however, this method is practically unworkable because when the class wins—i.e., when the court determines that the defendants owe nothing to the plaintiff—no money changes hands. We thus propose to adopt a universal, one-sided fee-shifting rule to provide class attorneys with adequate incentives. Under this rule, the plaintiff would have to pay the fees for the defendant class attorney when the class wins. A class loss at trial, however, would not entitle the plaintiff to recover its fees from the defendant class.
And how will we set the fee? Not based on the market value of the legal services provided, because in any case in which there was a risk that no benefit would be conferred, no one would undertake representation. Could we base fees on the value conferred?
    Class attorney fees are based on the benefit the attorney produces for the class. Measuring that benefit would be difficult in class defense cases. Courts would be forced to determine the extent to which the attorney relieved class members of their potential liability. This would require rough estimates of actual liability and the hypothetical liability that would have been found had the attorney not represented the class (or had the class not been certified). While this would undoubtedly be a complicated task, it is not conceptually different from the valuation issues that arise in non-pecuniary class actions. In such cases, the losing defendant provides class members with some benefit other than a cash payment. The benefit may take the form of a discount on future purchases, periodic medical examinations, or a distribution of stocks and options. Valuing that benefit is “inevitably problematic.” Still, courts manage to do it, just as they decide whether a settlement is “fair, reasonable, and adequate” and whether or not to award attorneys fees. There is no reason why courts could not undertake the same task in class defense cases.
There's much more in this very interesting article!


Friday, February 18, 2005
 
Schauer on an Institutional First Amendment Frederick Schauer (Harvard University - John F. Kennedy School of Government) has posted Towards an Institutional First Amendment (Minnesota Law Review, Vol. 89, 2005) on SSRN. Here is the abstract:
    First Amendment doctrine has traditionally been carved along conceptual rather than institutional lines. Legal categories like "public forum," "content-neutral," and "defamation" have dominated the doctrine, with the general understanding being that it was the nature of the speech or the nature of the restriction that determined protection, as opposed to the nature of some institution in which communication or its restriction took place. First Amendment doctrine has been reluctant to take much notice of pre-legal institutional categories, such as "press," "universities," and "libraries," but allowing the increased use of such institutional realities in the design of First Amendment doctrine may well produce a First Amendment doctrine with far fewer anomalies and much greater utility.
And two more first amendment papers by Schauer:


 
Claeys on Public Use Eric Claeys (Saint Louis University - School of Law) has posted Public-Use Limitations and Natural Property Rights (Michigan State Law Review, Vol. 2004, No. 4, December 2004) on SSRN. Here is the abstract:
    This Article is part of a November 2004 symposium at Michigan State University Law School on the future of public-use law after Wayne County v. Hathcock. It shows how contemporary public use law would look if recast to conform to principles of American natural-rights theory influential between the Founding and the early twentieth century. Natural-rights theory splits what public-use law now generally treats as one unified class of doctrinal issues into two separate questions. The first is a regulatory-takings question. Laws may condemn property without triggering eminent-domain or public-use requirements if they count as bona fide natural-law regulations of property rights. To pass muster as regulations, however, such condemnations must satisfy a form of intermediate scrutiny closely resembling the scheme set forth in Dolan v. City of Tigard, and they must condemn property either to control documented public harms or to secure affected owners an average reciprocity of advantage. If a condemnation fails this regulatory-takings question, it is in substance an act of eminent domain and must face a second question - whether the public actually uses the property taken. If the public uses the property, the condemnation is constitutional and compensation must be paid; if not, the condemnation is unconstitutional and no award of just compensation can save it. This understanding of takings and public-use law is relevant for several reasons. First, it clarifies the substantive commitments of contemporary public-use law. Berman v. Parker and other leading public-use cases rest in large part on a theoretical break with the natural-rights approach to public use; if one appreciates the break, one better understands the goals that Berman advances. Second, the sources that inform the natural-rights approach provide important, if not dispositive, evidence about the original meanings of the federal and many state takings and public-use clauses. Third, the natural-rights approach demonstrates how public-use law might follow from a personhood understanding of property. Finally, the natural-rights approach provides a theoretical alternative to and critique of recent law-and-economics justifications of public-use law by Thomas Merrill and other scholars.


 
Coleman at Loyola (Los Angeles) Jules Coleman of Yale is currently a visiting Scholar-in-Residence at Loyola Law School, Los Angeles. Yesterday, Feb. 17, he presented a paper entitled "Legal Positivism Since H.L.A. Hart." On Tuesday, Feb. 22, he will present a paper on the relationship between law and economics reasoning and moral theory entitled "The Grounds of Welfare".


 
Friday Calendar


Thursday, February 17, 2005
 
New Issue of Theoretical Inquiries in Law
    THEORETICAL INQUIRIES IN LAW is pleased to announce the release of its new issue, Volume 6(1), "The Role and Limits of Legal Regulation of Conflicts of Interest (Part 1)". You may not be aware that your institution subscribes to this journal, providing you with direct access to these and all past articles. Papers in this issue include (click on links to view full text, and see below for full citations and abstracts): Eyal Benvenisti and Ariel Porat "Implementing the Law by Impartial Agents: An Exercise in Tort Law and International Law". http://www.bepress.com/til/default/vol6/iss1/art1 Hanoch Dagan and Michael Heller "Conflicts in Property". http://www.bepress.com/til/default/vol6/iss1/art2 Roy Kreitner "Frameworks of Cooperation: Competing, Conflicting, and Joined Interests in Contract and Its Surroundings". http://www.bepress.com/til/default/vol6/iss1/art3 Roderick M. Hills, Jr. "Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-Federal Democracy?". http://www.bepress.com/til/default/vol6/iss1/art4 Yishai Blank "The Resilience of Participation: A Comment on Professor Hills". http://www.bepress.com/til/default/vol6/iss1/art5 Daphne Barak-Erez "The Administrative Process as a Domain of Conflicting Interests". http://www.bepress.com/til/default/vol6/iss1/art6 Jide Nzelibe "The Credibility Imperative: The Political Dynamics of Retaliation in the World Trade Organization's Dispute Resolution Mechanism". http://www.bepress.com/til/default/vol6/iss1/art7 Stephen D. Sugarman "Conflicts of Interest in the Roles of the University Professor". http://www.bepress.com/til/default/vol6/iss1/art8 THEORETICAL INQUIRIES IN LAW is an English-language biannual law journal published by the Cegla Center for Interdisciplinary Research of the Law of the Tel Aviv University Faculty of Law ( www.tau.ac.il/law/cegla ). The Journal specializes in the application to legal problems of insights developed in other disciplines, such as moral and political theory, epistemology, social sciences, economics and game theory, probability theory, and cognitive psychology.


 
Thursday Calendar
    Georgetown Faculty Workshop on Transnational Legal Issues:Peter Edelman, Intermediate scrutiny and economic status (Mike Seidman commentary).
    Princeton Public Law Colloquium: Roundtable, Civil Liberties and the State in Twentieth Century America: A Discussion of Ken I. Kersch's Constructing Civil Liberties: Discontinuties in the Development of American Constitutional Law (Cambridge University Press, 2004). Panel includes William J. Novak, Visiting Professor of Law at New York University Law School and Associate Professor of History at the University of Chicago and Theodore J. Lowi, the John L. Senior Professor of American Institutions at Cornell University, and Kenneth Kersch, with Keith Whittington, moderating.
    Boston University School of Law: Mark Tushnet (Georgetown, visiting at Harvard), "Strong Rights, Weak Courts: Judicial Review and Social Welfare Rights in Comparative Constitutional Law".
    Florida State University College of Law: Honorable Bruce Selya, U.S. Court of Appeals for the First Circuit (Jurist-in-Residence during week of Feb. 14) “Quo Vadis? Federal Criminal Sentencing after Booker and Fanfan”.
    George Mason University: Todd Zywicki, GMU School of Law visiting Georgetown Law, Obesity and Advertising Policy (with Debra Holt and Maureen K. Ohlhausen).
    George Washington, Intellectual Property Series: Glynn Lunney, Tulane University Law School, "Patents and Growth: Empirical Evidence from the States".
    Stanford Law & Economics: Keith Hylton (School of Law, Boston University), "Church and State: An Economic Analysis".
    University of Michigan Law & Economics: Assaf Hamdani, Bar-Iian University, The Class Defense.


Wednesday, February 16, 2005
 
Angner on Hayek Erik Angner has posted An Attempt to Understand the Nature and Origin of Hayek's Transformation. Here is a taste:
    Although the work of F. A. Hayek (1899-1992) has attracted a good deal of attention in recent years, many important questions about the nature and origin of his thought remain unanswered. This is particularly true regarding his so-called “transformation,” during which he all but abandoned technical economics and instead decided to pursue broader questions in political and social philosophy. In this dissertation I examine the system of beliefs that guided his thought, and argue that a number of important questions can be usefully addressed by seeing Hayek in the light of the Natural Law tradition. I argue that there are important reasons to consider Hayek part of this tradition. Many of the central ideas of Natural Law doctrine (especially as they appear in the classical liberal philosophers of the 18th century) are clearly present in Hayek’s work, and he was, as a matter of fact, under the governing influence of the Natural Law tradition for most of his life. The Natural Law connection helps account for a number of otherwise mysterious features of Hayek’s work, for instance, why he adopted a theory of natural selection at the level of the group as the centerpiece of his mature theory. Moreover, the link with Natural Law doctrine goes a long way toward accounting for the immense rhetorical power of his theory. Meanwhile, I claim, Hayek’s reliance on central tenets of Natural Law doctrine had important unintended, unanticipated and unwelcome consequences.


 
Book Announcement: The Ethics of Identity
    The Ethics of Identity by Kwame Anthony Appiah To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/7806.html Race, ethnicity, nationality, religion, gender, sexuality: in the past couple of decades, a great deal of attention has been paid to such collective identities. They clamor for recognition and respect, sometimes at the expense of other things we value. But to what extent do "identities" constrain our freedom, our ability to make an individual life, and to what extent do they enable our individuality? In this beautifully written work, renowned philosopher and African Studies scholar Kwame Anthony Appiah draws on thinkers through the ages and across the globe to explore such questions. ISBN: 0-691-12036-6


 
Wednesday Calendar
    Vanderbilt Law School: Burch Lecture, Professor Erik Jayme, Institute for Foreign, International, Private & Economic Law, Heidelberg, "Globalization in Art Law: Clash of Interests and International Tendencies"


Tuesday, February 15, 2005
 
ACS Project The ACS emailed the following:
    ACS Launches Constitution in the 21st Century Project The American Constitution Society ("ACS") is embarking on a multi-year initiative to promote positive, much-needed change in our legal and policy landscape. The Constitution in the 21st Century will advance our nation's commitment to a constitutional democracy that safeguards individual rights and liberties, genuine equality and access to justice. With an Advisory Board co-chaired by Walter Dellinger, Alan Jenkins and Dawn Johnsen,* the project will bring together, in various venues and combinations, constitutional scholars, hands-on practitioners, public interest advocates, public officials and law students. We will encourage the kind of deep, careful thinking necessary to formulate and advance a progressive constitutional vision that is intellectually sound, practically relevant, and faithful to our constitutional values and heritage. Over the past two decades, our nation's legal landscape has been significantly reshaped by conservative legal ideology hostile to fundamental liberties and equality, congressional authority and responsibility, and access to the courts for the vindication of rights. Through a concerted campaign by conservative politicians, academics and activists, that ideology has permeated popular discourse and translated into real legal and political change. The time is right to reclaim our Constitution and ACS is launching The Constitution in the 21st Century initiative expressly for that purpose. Through the project, ACS members will:
      develop and disseminate progressive interpretations on a wide range of issues; debunk constitutional rationales that use misleading or disingenuous interpretations to mask conservative policy objectives; devise and implement strategies for shaping constitutional debate and constitutional law along progressive lines; and mobilize diverse constituencies on behalf of this vision: academics, practicing lawyers, public interest advocates, judges, government policymakers and law students, as well as citizens whose constitutional understandings help determine the constitutional democracy in which we live.
    The project's intellectual content will include both foundational intellectual work and persuasive distillations of existing work made readily accessible to practitioners, policymakers and the public. Components of the project will include: Issue Groups: The project's working core will consist of nationwide ACS Issue Groups of lawyers and academics working in particular subject areas. The Issue Groups will focus on topical concerns of the day as well as more enduring matters, and will both challenge flawed premises at work in the law and demonstrate the legitimacy and power of progressive approaches. Initial topics are likely to include separation of powers and federalism, equality and liberty, the criminal justice system, access to justice, constitutional interpretation and change, and democracy and voting. Conferences and Other Events: The project will include a variety of conferences and other events through which individuals will develop and share constitutional theories and arguments. Already scheduled are a Yale-ACS Conference on The Constitution in 2020 in April 2005 and the annual ACS National Convention in July 2005, which will be devoted to The Constitution in the 21st Century. Issue Groups will host additional public symposia as well as working meetings. Publications: The project will publish original articles, essays and position papers by a variety of authors on legal and policy issues suitable for audiences ranging from legal scholars to practitioners to interested citizens. The project will also compile, summarize and synthesize key academic and specialized articles and other existing materials to make them more accessible and useful to lawyers, litigators and advocates. We also will encourage students to engage in progressive scholarship, including through an annual writing competition. Project Website: A special section of the ACS website will be devoted to the project as a central tool for encouraging on-going dialogue, inspiring new ideas and continuously refining our constitutional vision for the 21st Century. The website will disseminate the work of the project, including all its publications, information regarding upcoming project activities, links to relevant material and activities of other organizations, a clearinghouse of progressive materials and a project blog. Project Clearinghouse: To fill a void often voiced by the progressive legal community, the project will establish and maintain a clearinghouse that will bring together a wide variety of key relevant materials, including law review articles, court rulings, project publications, congressional testimony and book reviews. In addition to including the full text of these materials, the clearinghouse will analyze, summarize and organize the materials to maximize their accessibility and usefulness to practitioners, judges, advocates, academics and students. Blog: The project will include a blog that engages progressives in conversation about theories of constitutional interpretation, topical issues and strategies for furthering progressive constitutionalism. Through The Constitution in the 21st Century, ACS seeks ultimately to revitalize our great nation's commitment to liberty, equality and justice and our standing as a beacon of freedom and justice across the world. *Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke Law School, a Partner with O'Melveny & Myers and former Acting Solicitor General and Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. Alan Jenkins is Executive Director of The Opportunity Agenda, former Director of the Human Rights Unit at the Ford Foundation, former Assistant to the Solicitor General in U.S. Department of Justice and former Assistant Counsel at the NAACP Legal Defense and Educational Fund. Dawn Johnsen is a Professor of Law at Indiana University School of Law- Bloomington, former Acting Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice and former Legal Director for NARAL Pro-Choice America.


 
New from Law & Politics Book Review
    EVOLVING STANDARDS OF DECENCY: POPULAR CULTURE AND CAPITAL PUNISHMENT, by Mary Welek Atwell. New York: Peter Lang, 2004. 178pp. Paper. €25.00 / £17.50 / $29.95. ISBN: 0-8204-6711-1. Reviewed by Austin Sarat.
    SOCIAL CITIZENSHIP AND WORKFARE IN THE UNITED STATES AND WESTERN EUROPE: THE PARADOX OF INCLUSION, by Joel F. Handler. Cambridge: Cambridge University Press, 2004. 330pp. Hardback. £55.00 / $85.00 ISBN: 0521833701. Paper. £19.99 / $31.99. ISBN: 0521541530. Reviewed by Gretchen Ritter.
    THE SUPREME COURT OF NOVA SCOTIA, 1754-2004: FROM IMPERIAL BASTION TO PROVINCIAL ORACLE., by Philip Gerard, Jim Phillips, and Barry Cahill (eds). University of Toronto Press for the Osgoode Society for Canadian Legal History, 2004. 550pp. Hardcover. CDN$75.00 / US$75.00 / £48.00. ISBN: 0802080219. Reviewed by Thomas M.J. Bateman.
    THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE, by Daniel J. Solove. New York: New York University Press, 2004. 288pp. Cloth $29.95. ISBN: 0-8147-9846-2. Reviewed by Philip A. Dynia.


 
Tuesday Calendar
    Cambridge Forum for Legal and Political Philosophy: MICHAEL OTSUKA, University College London), "CONTRACTUALISM AND THE CLAIMS OF INDIVIDUALS".
    Georgetown Law: Lama Abu Odeh, "The Politics of (Mis)recognition: Teaching Islamic Law in the U.S."
    Oxford Jurisprudence Discussion Group: Oonagh Reitman, Rethinking Multiculturalism and Feminism.
    Loyola Marymount Univesity, Loyola Law School: Jules Coleman,* Wesley Newcomb Hohfeld Professor of Jurisprudence and Philosophy at Yale Law School, "Legal Positivism Since H.L.A. Hart".
    Northwestern University, Empirical Legal Studies Colloquium: Laura Beth Nielsen, Research Fellow, American Bar Foundation, "Rights and Realities: A Sociological Model of Employment Discrimination Claiming".


Monday, February 14, 2005
 
Frankfurt on Bullshit The New York Times has a nice piece, A Princeton Philosopher's Unprintable Essay Title, by Peter Edidin. Here's a taste:
    Harry G. Frankfurt, 76, is a moral philosopher of international reputation and a professor emeritus at Princeton. He is also the author of a book recently published by the Princeton University Press that is the first in the publishing house's distinguished history to carry a title most newspapers, including this one, would find unfit to print. The work is called "On Bull - - - - ." The opening paragraph of the 67-page essay is a model of reason and composition, repeatedly disrupted by that single obscenity.
And here is the Amazon.com link for On Bullshit. Here is a brief 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.
Highly recommended!


 
Monday Calendar


 
Legal Theory Calendar
    Monday, February 14 Tuesday, February 15
      Cambridge Forum for Legal and Political Philosophy: MICHAEL OTSUKA, University College London), "CONTRACTUALISM AND THE CLAIMS OF INDIVIDUALS".
      Georgetown Law: Lama Abu Odeh, "The Politics of (Mis)recognition: Teaching Islamic Law in the U.S."
      Oxford Jurisprudence Discussion Group: Oonagh Reitman, Rethinking Multiculturalism and Feminism.
      Loyola Marymount Univesity, Loyola Law School: Jules Coleman,* Wesley Newcomb Hohfeld Professor of Jurisprudence and Philosophy at Yale Law School, "Legal Positivism Since H.L.A. Hart".
      Northwestern University, Empirical Legal Studies Colloquium: Laura Beth Nielsen, Research Fellow, American Bar Foundation, "Rights and Realities: A Sociological Model of Employment Discrimination Claiming".
    Wednesday, February 16
      Vanderbilt Law School: Burch Lecture, Professor Erik Jayme, Institute for Foreign, International, Private & Economic Law, Heidelberg, "Globalization in Art Law: Clash of Interests and International Tendencies"
    Thursday, February 17
      Georgetown Faculty Workshop on Transnational Legal Issues:Peter Edelman, Intermediate scrutiny and economic status (Mike Seidman commentary).
      Princeton Public Law Colloquium: Roundtable, Civil Liberties and the State in Twentieth Century America: A Discussion of Ken I. Kersch's Constructing Civil Liberties: Discontinuties in the Development of American Constitutional Law (Cambridge University Press, 2004). Panel includes William J. Novak, Visiting Professor of Law at New York University Law School and Associate Professor of History at the University of Chicago and Theodore J. Lowi, the John L. Senior Professor of American Institutions at Cornell University, and Kenneth Kersch, with Keith Whittington, moderating.
      Boston University School of Law: Mark Tushnet (Georgetown, visiting at Harvard), "Strong Rights, Weak Courts: Judicial Review and Social Welfare Rights in Comparative Constitutional Law".
      Florida State University College of Law: Honorable Bruce Selya, U.S. Court of Appeals for the First Circuit (Jurist-in-Residence during week of Feb. 14) “Quo Vadis? Federal Criminal Sentencing after Booker and Fanfan”.
      George Mason University: Todd Zywicki, GMU School of Law visiting Georgetown Law, Obesity and Advertising Policy (with Debra Holt and Maureen K. Ohlhausen).
      George Washington, Intellectual Property Series: Glynn Lunney, Tulane University Law School, "Patents and Growth: Empirical Evidence from the States".
      Stanford Law & Economics: Keith Hylton (School of Law, Boston University), "Church and State: An Economic Analysis".
      University of Michigan Law & Economics: Assaf Hamdani, Bar-Iian University, The Class Defense.
    Friday, February 18


Sunday, February 13, 2005
 
Legal Theory Lexicon: Concepts and Conceptions
    Introduction Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.
    This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.
    Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept.
    Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application.
    Two Uses of the Concept/Conception Distinction
      Rawls on the Concept and Conceptions of Justice Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.
      Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.
    Conclusion The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.
    References
    • Ronald Dworkin, Law's Empire (Harvard University Press 1988).
    • W. B. Gallie, " Essentially Contested Concepts," 56 Proceedings of the Aristotelian Society 167 (1956).
    • John Rawls, A Theory of Justice ((Revised edition, Cambridge, Massachusetts: Belknap Press, 1999).


Saturday, February 12, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Lawlessness and Economics : Alternative Modes of Governance (The Gorman Lectures) by Avinash K. Dixit. Here is a description:
    How can property rights be protected and contracts be enforced in countries where the rule of law is ineffective or absent? How can firms from advanced market economies do business in such circumstances? In Lawlessness and Economics, Avinash Dixit examines the theory of private institutions that transcend or supplement weak economic governance from the state. In much of the world and through much of history, private mechanisms--such as long-term relationships, arbitration, social networks to disseminate information and norms to impose sanctions, and for-profit enforcement services--have grown up in place of formal, state-governed institutions. Even in countries with strong legal systems, many of these mechanisms continue under the shadow of the law. Numerous case studies and empirical investigations have demonstrated the variety, importance, and merits and drawbacks of such institutions. This book builds on these studies and constructs a toolkit of theoretical models to analyze them. The models shed new conceptual light on the different modes of governance, and deepen our understanding of the interaction of the alternative institutions with each other and with the government's law. For example, one model explains the limit on the size of social networks and illuminates problems in the transition to more formal legal systems as economies grow beyond this limit. Other models explain why for-profit enforcement is inefficient. The models also help us understand why state law dovetails with some non-state institutions and collides with others. This can help less-developed countries and transition economies devise better processes for the introduction or reform of their formal legal systems.


 
Download of the Week The Download of the Week is "The Expressive Power of Adjudication" by Richard McAdams. Here is the abstract:
    This article provides a causal explanation of adjudicative compliance that is distinct from the court's threat of sanctions and its institutional legitimacy. The new mechanism for compliance is the power of adjudicative expression. The theory of “expressive adjudication” arises from a previously neglected synergy among three expressive concepts in game theory – a “correlated equilibrium,” a “focal point,” and a signal. The article identifies the circumstances in which adjudicative expression can, by itself, influence the behavior of existing disputants and of future potential disputants. In each case, ambiguity in the relevant facts or the concepts underlying intentional and spontaneous order can cause a conflict that clarifying expression resolves. This expressive power explains otherwise puzzling instances of compliance with tribunals that lack the power of sanctions and unifies theories of third-party norm enforcement with a theory of legal sanctions. Finally, the article examines certain normative implications of the expressive theory, including a novel function of adjudicative impartiality, a new justification for the system of public adjudication (a judiciary), and a trade-off between dispute resolution and dispute avoidance.


Friday, February 11, 2005
 
Call for Papers: Respect
    Res Publica: A Journal of Legal and Social Philosophy invites submissions for a special issue (Volume 12/1): Respect. 'Respect' is a ubiquitous, multi-faceted and frequently under-theorised concept in ethical, social, political and legal philosophy. While it is generally regarded as a ‘good thing’, exactly what kind of thing it is remains in many ways contested or opaque. What does it mean to respect another person? How does this relate to ‘toleration’, or ‘recognition’, or to dignity, merit or social status? Can, or should, respect for individuals translate into respect for groups, or ways of life? Where, or with whom, does the call to respect another become inappropriate? Is respect of any relevance in addressing social inequalities, or as a component part of social justice? How does it relate to questions of power? Does pursuing it risk the aggressive imposition of partial norms across diverse social contexts? How does respect for others relate to disrespect? Or to self-respect? Does the term merit its typically central place in professional codes of ethics? Can we respect the dead, or those yet to be born? Can the term coherently be applied to non-human entities (animals, the natural environment, property)? For this special issue, to appear in early 2006, we aim to attract a range of treatments of these, and related, questions. We especially encourage the submission of papers relating issues of ‘respect’ to:
      - Human rights - Equality - Anti-discrimination - Status recognition - Social justice - Professional ethics
    ... but we welcome submissions addressing any of the questions raised above, whether individually or in combination. All articles will be submitted to our standard process of double-blind review. Deadline for submissions: 31 July, 2005 Maximum paper-length: 8000 words For further information, please contact the co-editors of this issue: Dr David Middleton, Open University: D.J.Middleton@open.ac.uk or Dr Gideon Calder, University of Wales, Newport: gideon.calder@newport.ac.uk About Res Publica Res Publica: a Journal of Social and Legal Philosophy is an interdisciplinary publication concerned with the philosophical analysis of moral, political, social and legal issues. It provides a forum for discussion of theoretical issues; a public arena for voicing matters of practical concern; and a vehicle for addressing questions of morality, politics, law and society, the interconnections between them and, more generally, the relation of theory to practice. The journal seeks to publish articles and review essays which are both philosophically rigorous and accessible to a wide range of academics and professionals. Replies to articles are welcome. It is the policy of Res Publica to encourage publication by researchers at the beginning of their careers as well as by established scholars; and by those in non-Western countries. Editor-in-Chief: Gideon Calder University of Wales, Newport, UK; gideon.calder@newport.ac.uk Deputy Editor and Reviews Editor: Jonathan Seglow Royal Holloway, University of London, UK; j.seglow@rhul.ac.uk ISSN: 1356-4765 (print version) ISSN: 1572-8692 (electronic version) Springer Netherlands Further details: http://www.springeronline.com/sgw/cda/frontpage/0,11855,3-40385-70-35539738-0,00.html?changeHeader=true


 
Friday Calendar


 
Ackerman on the Next Supreme Court Vacancy Bruce Ackerman has a piece entitled The Art of Stealth on the London Review of Books. Here is a taste:
    The coming struggle over the Supreme Court has been gathering momentum for almost twenty years: the nomination battles over Robert Bork in 1987 and Clarence Thomas in 1991 were harbingers. But times have changed since these bitter contests. Bork was a cutting-edge neo-conservative of the 1980s, but his successors may well go far beyond him, striking down laws protecting workers and the environment, supporting the destruction of basic civil liberties in the war on terrorism, and engaging in a wholesale attack on the premises of 20th-century constitutionalism. Or then again, Bush may hesitate. Despite his professed admiration for neo-con jurists such as Antonin Scalia and Clarence Thomas, he may offer up genuine conservatives, such as Sandra Day O’Connor, who reject radical change as a matter of principle.
And from later in the piece:
    Bush’s favourite stealth candidate may well be an administration lawyer who has, in one way or another, helped construct the president’s extreme arguments for expanded powers as commander in chief. Consider the successful nomination of Jay Bybee to the Court of Appeals for the Ninth Circuit. Bybee was the assistant attorney general responsible for the preparation of the notorious torture memos which denied, for example, that Congress could constitutionally forbid the president from ordering the torture of enemy combatants. When they were leaked, the furor forced the administration to repudiate some of its most extreme positions. But the news came too late: Bybee had already been confirmed by the Senate. At the crucial moment, when questioned, he stonewalled: ‘As a member of the administration, it is my responsibility to support the president’s decision. To the extent that I might have a different personal view on this matter (or any other matter of administration policy), it would be inappropriate for me to express publicly a personal view at variance with the president’s position.’


 
Ethics Online The most recent issue of Ethics, (Volume 115, Number 2, January 2005) is now available at http://www.journals.uchicago.edu/cgi-bin/contents?ET+v115n2 (password required to download articles).


 
Event Announcement: William D. Hamilton Memorial Lecture
    New England Institute for Cognitive Science and Evolutionary Psychology 4th Annual William D. Hamilton Memorial Lecture Religion as a Natural Phenomenon Daniel C. Dennett April 29, 2005 at 7:00 PM CHP Room, Parker Pavilion Westbrook College Campus University of New England, 716 Stevens Avenue, Portland, Maine. What kind of explanation can the natural sciences provide for the variety of religious practices and beliefs? One possibility, of course, is that it is simply the truth, and that all human groups discover this in the same way that they discover that food and water are necessary for survival, but there are other possible explanations that may shed light on the powerful influence of religion in all contemporary societies. Daniel C. Dennett is the author of Freedom Evolves (Viking Penguin, 2003) and Darwin's Dangerous Idea (Simon &Schuster, 1995), is University Professor and Austin B. Fletcher Professor of Philosophy and Director of the Center for Cognitive Studies at Tufts University. His first book, Content and Consciousness, appeared in 1969, followed by Brainstorms (1978), Elbow Room (1984), The Intentional Stance (1987), Consciousness Explained (1991), Darwin's Dangerous Idea (1995), Kinds of Minds (1996), and Brainchildren: A Collection of Essays 1984-1996 (MIT Press and Penguin, 1998). He co-edited The Mind's I with Douglas Hofstadter in 1981. He is the author of over two hundred scholarly articles on various aspects on the mind, published in journals ranging from Artificial Intelligence and Behavioral and Brain Sciences to Poetics Today and the Journal of Aesthetics and Art Criticism. He gave the John Locke Lectures at Oxford in 1983, the Gavin David Young Lectures at Adelaide, Austral! ia, in 1985, the Tanner Lecture at Michigan in 1986, and the Jean Nicod lectures at Paris in 2001among many others. He has received two Guggenheim Fellowships, a Fulbright Fellowship, and a Fellowship at the Center for Advanced Studies in Behavioral Science. He was elected to the American Academy of Arts and Sciences in 1987. He was the Co-founder (in 1985) and Co-director of the Curricular Software Studio at Tufts, and has helped to design museum exhibits on computers for the Smithsonian Institution, the Museum of Science in Boston, and the Computer Museum in Boston.


Thursday, February 10, 2005
 
Thursday Calendar


 
Lipshaw on the Theory of Contract & Promise Jeffrey Lipshaw (Indiana University School of Law - Indianapolis) has posted Duty and Consequence: A Non-Conflating Theory of Contract and Promise on SSRN. Here is the abstract:
    This is a short introductory essay laying out a thesis for a more involved project. The thesis is that the general debate between deontologists and consequentialists of law, played out in the microcosm of promise and contract, is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our relationships ought to be ordered). There is irony in the overwhelming interest of the consequentialist legal academy in trying to find a scientific answer to our most fundamental questions of duty and deontologists to defend morality consequentially. I argue that there are limits to each and that we operate consequentially and deontologically in the ordering of our private affairs, often simultaneously. The mistakes (typical of reason's drive to a single maximand) are assuming, on one hand, that contractual consequentialism defines our commercial relationships, or, on the other, that contracts are capable of containing our moral obligations. Put another way, there is nothing sanctified about the contract (versus the underlying promise), and the conflation of the two is the source of the confusion over the limits of the law of contract. The transcendental aspect of the contract is the underlying promise - its soul, so to speak - but the law can only doctor its body, what shows in the contract.


Wednesday, February 09, 2005
 
Conference Announcement: McDowell between Wittgenstein and Hegel
    McDowell between Wittgenstein and Hegel University of Warwick 13-15 May 2005 This conference is hosted by the Department of Philosophy, University of Warwick. The keynote speaker is John McDowell. The aim of the conference is to present the opportunity for a sustained discussion of McDowell's work as it is related to Wittgenstein, Sellars, Kant, and Hegel, as well as the contemporary analytic tradition. Papers will address issues within the following four areas: 1. Wittgenstein and Sellars 2. Philosophy of Mind and Language 3. Ethics 4. Kant and Hegel Confirmed speakers: John McDowell (Pittsburgh) Bill Brewer (Warwick) Willem DeVries (New Hampshire) Naomi Eilan (Warwick) Jennifer Hornsby (Birkbeck, London) Stephen Houlgate (Warwick) Susan Hurley (Warwick) Barry Smith (Birkbeck, London) Charles Travis (Northwestern, Chicago) Kenneth Westphal (East Anglia) Michael Williams (Johns Hopkins, Baltimore) News and information about registration is available on the conference web site at: http://www.warwick.ac.uk/go/mcdowellconference Enquiries: McDowellConference@warwick.ac.uk


 
Adler on Conservation Cartels Jonathan H. Adler (Case Western Reserve University School of Law) has posted Conservation Cartels on SSRN. Here is the abstract:
    The alleged purpose of antitrust law is to improve consumer welfare by proscribing actions and arrangements that reduce output and increase prices. Conservation seeks to improve human welfare by maximizing the long-term productive use of natural resources, a goal that often requires limiting consumption to sustainable levels. While conservation measures might increase prices in the short run, they enhance consumer welfare by increasing long-term production and ensuring the availability of valued resources over time. That is true whether the restrictions are imposed by a private conservation cartel or a government agency. Insofar as antitrust law fails to take this into account, it bars the creation and evolution of ecologically valuable and socially beneficial arrangements among resource users.


 
Wednesday Calendar


 
Segev on Mistake Re'em Segev has posted Justification, Rationality and Mistake: Mistake of Law is no Excuse? It Might be a Justification (Law and Philosophy, 2005) on SSRN. Here is the abstract:
    According to a famous maxim, ignorance or mistake of law is no excuse. This maxim is supposed to represent both the standard and the proper rule of law. In fact, this maxim should be qualified in both respects: ignorance and mistake of law sometimes are, and (perhaps even more often) should be, excused. But this dual qualification only reinforces the fundamental and ubiquitous assumption which underlies the discussions of the subject, namely, that the only ground of exculpation relevant to ignorance or mistake of law is excuse due to lack of (sufficient) culpability. The article challenges this consensus. I argue that, according to the best conception of justification, ignorance and mistake, including ignorance and mistake of law, could be justified. Generally, ignorance and mistake are justified when based on a rational analysis of the information the agent has and should have. The conceptual possibility of justified ignorance or mistake is demonstrated mainly with respect to ignorance or mistake of law due to reliance on the guidance of public officials or private lawyers.


 
Safrin on Hyperownership Sabrina Safrin (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life (American Journal of International Law, Vol. 98, No. 641, October 2004) on SSRN. Here is the abstract:
    This article addresses the corrosive interplay between the patent-based and the sovereign-based systems of ownership of genetic material. In patent-based systems, genetic material is increasingly owned by corporations or research institutions which obtain patents over such material. In sovereign-based systems, the national government owns or extensively controls such material. As more patents issue for synthesized genes in developed countries through the patent system, more raw genetic material is legally enclosed by the governments of developing nations, which house most of the world's wild or raw genetic material. This interactive spiral of increased enclosure results in the sub-optimal utilization, conservation and improvement of vital genetic material. This article adds to the scholarship that critiques the patenting of genetic material in the United States by focusing on the international collateral damage occasioned by overbroad patenting in this area. In addition, it takes the first comprehensive critical look at the sovereign-based system. It argues that sovereign ownership or extensive control over genetic material (i) risks creating an anticommons in raw genetic material (ii) threatens the liberty and autonomy of individuals and indigenous communities whose property contains such material and (iii) is premised on a flawed approach in international law that has led to broad and unenforceable regimes that will increase tensions between nations. Moreover, the interaction between the patent-based and the sovereign-based systems risks setting off a major trade dispute. To repair this situation, I propose a framework for a more open system for genetic material. I recommend that the United States take into account the adverse reaction of other countries when determining as a utilitarian matter whether and, if so, to what extent to allow patents for genetic material. Expansive patent rights over genetic material can cause innovation in the biotechnology field to fall to suboptimal levels because they cause sovereigns in the world’s most genetically diverse nations to curtail access to the raw material that contributes to such innovation. For their part, genetically-rich developing countries should, inter alia, adopt more selective and value-added approaches to enclosure.


Tuesday, February 08, 2005
 
New Models for Training Legal Academics? Over at the Volokh Conspiracy, Randy Barnett writes:
    While I do not think we need PhD's or even M.A.'s to teach law--and I doubt that peer reviewed journals would make that much difference--it is too bad that a year of reading in the field in which you want to teach is not required before becoming a professor. Perhaps one day a law school will decide it can better compete with Harvard, Yale and Stanford (who together produce nearly half of all law professors) in placing their graduates in teaching jobs by creating such a program for its most promising students.
For some data on the dominance of Harvard, Yale, and Stanford, take a look at:It is quite revealing about the academic culture of the legal academy that other law schools put up only token resistance to the hegemony of such a small number of schools in the production (and reproduction) of the legal professoriate. Can it possibly be healthy for such a small percentage of the best legal academics to participate in the training of the majority of their colleagues?


 
Hasen on the Kevin Shelley Mess Election-law superblogger Rick Hasen has a very thoughtful editorial at the Los Angeles Times. Here is a taste:
    California's Constitution should be revised so that the chief elections officer (who may or may not be the secretary of state) is appointed to the position for a fixed term of, say, 10 years. He or she should be nominated by the governor and approved by a 75% majority of the Legislature. Such a supermajority requirement would ensure that only a consensus candidate who could achieve broad support from both parties would be chosen for the office. The Constitution should also guarantee some independence for the budget of the office and provide that the chief elections officer can be removed only through a difficult impeachment procedure.


 
Sandefur on Public Use Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project) has posted Public Use: Returning to the Sources on SSRN. Here is the abstract:
    Once considered dead letter, the public use clause of the Fifth Amendment has once again become the subject of serious legal contention. With the Supreme Court's consideration of Kelo v. New London, the public has learned that there is a serious crisis in eminent domain law: governments are regularly seizing private property for the benefit of private groups for their own private profit. Part I of this paper explains that, although the public use limitation was intended to prohibit such redistribution, courts have drifted from that original understanding since the Populist Era. Part II addresses the most important problem the legal community faces in returning to a proper understanding of the limits of eminent domain - namely, the attempt to avoid the difficult question of legitimate state interests. Part III proposes an important opportunity to limit eminent domain through state constitutions.


 
Ammori on the Sinclair Blogstorm Marvin Ammori (Yale Law School) has posted Shadow Government: Private Regulation, Free Speech, and Lessons from the Sinclair Blogstorm on SSRN. Here is the abstract:
    This paper analyzes the apparently emerging phenomenon of private regulation through ad hoc online coalitions. It evaluates the online cost structures that permit and shape the collective action underlying this form of regulation. It also evaluates the motivations and capacity necessary in particular circumstances to inspire such regulation. The paper concludes that a necessary motivation is the perception of both a market and a government failure. The paper's primary evidence comes from an internet-enabled campaign to change the behavior of a broadcast company weeks before the 2004 election. As this private regulation targeted speech, many of the paper's conclusions are particularly relevant for future instances of private speech regulation. The paper also addresses some normative implications of these campaigns, especially when aimed at private speech. It concludes that internet-enabled private speech regulation can often undermine FirstAmendment values. Private speech regulation, however, is pervasive and often necessary. It always undermines some First Amendment values at the expense of other values. The question for policy-makers and judges is therefore which forms of private speech regulation are more or less desirable, or have more or less constitutional protection. The paper's primary case study centers on the online coalition that coalesced and dissolved around the acts of Sinclair Broadcasting Group less than a month before the 2004 presidential election. The campaign attempted to punish a private party; other campaigns in the following weeks attempted to aid private parties. All such campaigns will become more common. This paper attempts an analysis of their mechanisms and possible effects.


 
Tuesday Calendar
    Oxford Jurisprudence Discussin Group: Mark Walters, Unwritten Constitutionalism.


 
Page Limits for Law Review Articles The ACS Blog reports that the flagship law reviews of Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Stanford, Texas, U. Penn., Virginia, and Yale have joined the following statement regarding the growing length of legal scholarship:
    In mid-December, the Harvard Law Review conducted a nationwide survey of law faculty regarding the state of legal scholarship. Nearly 800 professors completed the survey and submitted their feedback. Complete tabulations of the survey will soon be available on the web. Importantly, the survey documented one particularly unambiguous view shared by faculty and law review editors alike: the length of articles has become excessive. In fact, nearly 90% of faculty agreed that articles are too long. In addition, dozens of respondents submitted specific comments, identifying the dangers of this trend and calling for action. Survey respondents suggested that shorter articles would enhance the quality of legal scholarship, shorten and improve the editing process, and render articles more effective and easier to read. The law reviews listed above are very grateful for the constructive feedback and wish to acknowledge a role in contributing to this unfortunate trend in legal scholarship. To the extent that the article selection or editing process encourages the submission and publication of lengthier articles, each of the law reviews listed above is committed to rethinking and modifying its policies as necessary. Indeed, some have already done so. The vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages, and any impression that law reviews only publish or strongly prefer lengthier articles should be dispelled. Ultimately, individual law reviews will have to decide for themselves how best to resolve these concerns. Please know, however, that editors across the country are cognizant of the troubling trend toward longer articles and are actively exploring how to address it.
Of course, it isn't length per se that is the problem. 70 pages is way too long for some articles and too short for others. There is, however, a length associated problem with legal scholarship: student law review editors tend to favor pieces that rehearse context in detail before making the new point or points that are of interest to experts in the field. I suspect that this bias will be very difficult to eliminate. Students editors--who frequently do an amazing job--can't possibly be experts in every (or almost any) field in which they publish articles. Work that jumps right to heart of an ongoing debate will be quite difficult for newcomers to assess. Of course, in theory there is a remedy for this. Student editors could read the relevant literature before they evaluate submissions--but this would increase the already overwhelming burden of assessment that is associated with the current system of multiple simultaneous submissions. Moreoever, the belief in favor of longer pieces is not confined to student editors--the notion that excellence in legal scholarship requires "substantial" pieces is common among the professoriate as well, and this bias surely is an independent cause of the tendency to publish very long articles. Very interesting!


Monday, February 07, 2005
 
Final Call for Papers: Joint Session
    CALL FOR PAPERS 2005 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF MANCHESTER, 8-11 JULY OPEN SESSIONS A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate as many papers as time and space in the programme will allow. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to Dr. Anthony Hatzimoysis (Anthony.Hatzimoysis@man.ac.uk) by 1st March 2005. Decisions on whether papers have been accepted will be made by the end of April 2005. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid. POSTGRADUATE SESSIONS Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 95 or higher, otherwise in two hard copies, by 1st March 2005 to: Mr. A. W. Price, Department of Philosophy, Birkbeck College, Malet Street, London, WC1E 7HX. Email: a.price@bbk.ac.uk The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected by the Joint Committee for presentation at the Joint Session. The programme will be settled in May 2005. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. Nobody should submit a paper for both the Postgraduate and the Open Sessions, and only one paper may be submitted per individual. However, graduate students whose submission for the Postgraduate Sessions is unsuccessful may subsequently be advised that their paper has been accepted for the Open Sessions. Conference costs, however, will not be paid by the organisers. INVITED SPEAKERS Inaugural Address - Simon Blackburn Symposia: Alan Richardson and Thomas Uebel Derek Matravers and Jerrold Levinson Samuel Scheffler and Véronique Munoz-Dardé Stewart Shapiro and Patrick Greenough Jennifer Hornsby and Jason Stanley Marilyn Adams and Richard Cross


Sunday, February 06, 2005
 
Legal Theory Calendar


 
Legal Theory Lexicon: Personhood
    Introduction Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory.
    Persons and Humans The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":
      a bipedal primate mammal (Homo sapiens)
    And person is sometimes defined as a "human" or "individual". But "person" has another meaning, one that distinguishes the concept of person from the concept of human. Suppose, for example, an intelligent alien species were to arrive on Earth (or humans were to encounter them elsewhere). If the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.
    Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.
    Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans.
    The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons."
    Legal, Moral, and Natural Persons So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons.
    Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons. A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts.
    Legal Personhood The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued.
    Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone recently recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities.
    Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will."
    Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists.
    Moral Personhood "Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities:
    • Intelligence--One possibility is that the possession of "intelligence" (at some threshold level) is the criterion for moral personhood. Of course, "intelligence" itself is hardly a transparent concept.
    • Autonomy--Another idea is that persons must be capable of autonomy. But what is autonomy? One notion is that autonomous beings must be capable of second-order beliefs and motivations. That is, autonomy requires that one be able to have beliefs about one's beliefs and desires about one's desires.
    • Communication--Yet another possibility is that personhood requires the ability to communicate with others or to use language. On this criterion, it is possible that some higher primates might qualify for personhood--although the empirical evidence on primate use of human language is disputed.
    • Self-Awareness--Finally, some have argued that the criterion for moral personhood should be self-awareness or reflexive consciousness. To be a person, I must be aware of the my own consciousness.
    This is not an exhaustive list of the criteria for moral personhood. Moreover, these criteria might be combined in various ways. For example, it might be argued that only an intelligent, autonomous, language-using, self-conscious being would be a full moral person.
    Conclusion "Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography.
    Bibliography
    • John Chipman Gray, The Nature and Sources of the Law (Roland Gray ed., MacMillan 1921)
    • Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 North Carolina Law Review 1233 (1992).
    • Christopher Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972)
    • Richard Tur, The 'Person' in Law in Persons and Personality: A Contemporary Inquiry (Arthur Peacocke & Grant Gillett eds., 1987)
For a complete collection of Legal Theory Lexicon posts, surf here.


Saturday, February 05, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Limits of International Law by Jack L. Goldsmith, Eric A. Posner. Here is a brief description:
    International law is much debated and discussed, but poorly understood. Does international law matter, or do states regularly violate it with impunity? If international law is of no importance, then why do states devote so much energy to negotiating treaties and providing legal defenses for their actions? In turn, if international law does matter, why does it reflect the interests of powerful states, why does it change so often, and why are violations of international law usually not punished? In this book, Jack Goldsmith and Eric Posner argue that international law matters but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. It follows that many global problems are simply unsolvable. The book has important implications for debates about the role of international law in the foreign policy of the United States and other nations. The authors see international law as an instrument for advancing national policy, but one that is precarious and delicate, constantly changing in unpredictable ways based on non-legal changes in international politics. They believe that efforts to replace international politics with international law rest on unjustified about optimism international law's past accomplishments and present capacities.
And here are some excerpts from the reviews:
    "How much effect does international law actually have on how nations behave? Goldsmith and Posner ask trenchant questions and offer thought-provoking answers in a pioneering effort to address that question through the prism of rational choice theory. There will be a long and vigorous debate about the utility of their approach. Agree with them or not, their boldness and innovation provide a welcome effort at injecting greater analytic rigor into international law scholarship."--Michael J. Glennon, Fletcher School of Law & Diplomacy, Tufts University "At a time of rising interest in the intersection of international law and international relations scholarship, Goldsmith and Posner throw down a gauntlet likely to infuriate many traditional international lawyers. Their insistence that international legal obligations are equal part coincidence and rational state self-interest, nothing more, demands and will certainly get an answer. Equally important is their claim to be the heirs of Kennan and Morgenthau in cautioning against the perils of what they perceive to be a new round of legalism-moralism. They have thus raised the political as much as the methodological stakes in what is likely to be a heated and timely debate."--Anne-Marie Slaughter, Dean, Woodrow Wilson School of Public and International Affairs, Princeton University "Jack Goldsmith and Eric Posner have written a compelling study which provides an elegant analytic framework for understanding when international law matters and when it does not. Goldsmith and Posner show that some kinds of international law are very consequential while others are not. After this study it will be difficult for any serious observer to treat customary international law as if it were a constraint on rather than an manifestation of changing state power and preferences."--Stephen D. Krasner, Department of Political Science, Stanford University


 
Download of the Week The Download of the Week is The Trademark Function of Authorship by Greg Lastowka. Here is the abstract:
    The use of authorial marks in relation to the sale of creative works, like the use of business trademarks in relation to the sale of goods and services, creates social benefits that deserve legal protection. Authorial attribution acts as an incentive to authorial production, provides valuable information to consumers, and provides additional social benefits that go beyond issues of market efficiency. However, the use of authorial marks, like the use of trademarks, can create social harms. Just as counterfeiters place illegitimate trademarks on goods, exploiters of entertainment markets may be tempted to misattribute authorship. In the United States, such deceptive practices were traditionally subject to the remedial mechanisms of trademark and unfair competition laws. However, in a recent decision, Dastar Corp. v. Twentieth Century Fox Film Corp. (2003), the United States Supreme Court held that federal trademark law does not address the misattribution of authorship. The Dastar decision stated that trademark protections were designed to protect the creators of tangible products sold in the marketplace. The Court stated that trademark law was not designed to protect the interests of those who originate creative ideas or communications. This article explores society's interests in ascertaining the authorship of creative works and explains how those interests both resemble and diverge from standard trademark interests. It concludes that authorship marks are sufficiently analogous to trademarks that the Dastar approach is misguided. Consumers can and should be protected from misattributions of authorship where such misattributions can easily be remedied by law and where the failure to provide such remedies is likely to lead to significant consumer harms.


Friday, February 04, 2005
 
Allan Farnsworth NorthJersey.com reports:
    E. Allan Farnsworth, an internationally recognized legal scholar whose textbook on contracts is the standard reference book for lawyers, died at his Englewood home Monday. He was 77.
I'm not a contracts scholar, but I did read his one magnificient one-volume hornbook, which in my opinion set a new standard for clarity and intellectual depth in the doctrinal survey.


 
Friday Calendar
    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".


 
Kolm on Charity & Pareto Serge-Christophe has posted International justice and the basic needs principle. Here is the abstract:
    The US and Europe rely in opposite ways on private and public aid for the relief of need and poverty. It turns out that Pareto efficiency precludes private giving and demands relying on public transfers only. This also holds when people care about their own contributions, or about the specific gifts or other people. Only if they care about their gifts in itself, or about the specific contributions (tax plus gift) of others, can giving and efficiency be compatible. Yet, the motives are not altruism and are largely immoral and irrational. The dilemma can be avoided by other ethical principles, such as universalization and putative reciprocity.


 
Copp on International Justice David Copp has posted International justice and the basic needs principle. Here is a taste:
    There are striking and disturbing differences in the life prospects of people living in different countries. Most alarming is the fact that many people in many countries are unable to meet their basic needs.1 In some cases basic physical needs are going unfilled. People lack a source of clean water, adequate medical care, a healthy diet, and so on. In other cases, the needs going unfulfilled are psycho-social needs. Many people do not receive a basic education. There is a moral gravity to situations in which people are unable to meet their basic needs. It is widely agreed that the better off have a duty of charity to assist those living in poverty. I believe, however, that there are duties that go beyond charity. Some differences in life prospects between people in different countries are to be expected, even in a fully just international order. But I believe, with qualifications, that there is injustice in the fact that some countries do not have the resources to enable their people to meet their basic needs while other countries have resources that are surplus to their people’s needs.


 
Brams on Fair Division S. J. Brams has posted Fair division. Here is a taste:
    The literature on fair division has burgeoned in recent years, with five academic books (Young, 1994; Brams and Taylor, 1996; Robertson and Webb, 1998; Moulin, 2003; Barbanel, 2004) and one popular book (Brams and Taylor, 1999b) providing overviews. In this review, I will give a brief survey of three different literatures: (i) division of a single heterogeneous good (e.g., a cake with different flavors or toppings);(ii) division, in whole or part, of several divisible goods; and (iii) allocation of several indivisible goods. In each case, I assume the different people, called players, may have different preferences for the items being divided. For (i) and (ii), I will describe and illustrate procedures for dividing divisible goods fairly, based on different criteria of fairness. For (iii), I will discuss problems that arise in allocating indivisible goods, illustrating trade-offs that must be made when not all criteria of fairness can be satisfied simultaneously.


 
Barbanel & Brams on Slicing the Pie J. B. Barbanel and S.J. Brams have posted Cutting a pie is not a piece of cake. Here is the abstract:
    Gale (1993) posed the question of whether there is necessarily an undominated, envy-free allocation of a pie when it is cut into wedge-shaped pieces or sectors. For two players, we give constructive procedures for obtaining such an allocation, whether the pie is cut into equal-size sectors by a single diameter cut or into two sectors of unequal size. Such an allocation, however, may not be equitable—that is, give the two players\ exactly the same value from their pieces. For three players, we give a procedure for obtaining an envy-free allocation, but it may be dominated either by another envy-free allocation or an envy-causing allocation. A counterexample shows that there is not always an undominated envy-free allocation for four or more players if the players’ preferences are not absolutely continuous with respect to each other. If we do make this assumption, then the existence question remains open for four or more players. For three players, the question of whether there exists an undominated envy-free allocation is open whether or not the players’ preferences are absolutely continuous with respect to each other.


 
Smith on the Possible Absurdity of Life Michael Smith (RSSS, ANU) has posted Is That All There Is?. Here is a taste:
    With some trepidation, I want to say a little about the idea that life is absurd, about the nature of self-fulfilment, and about the relationship between the absurdity of life on the one hand and self-fulfilment on the other. I say 'with some trepidation' because the first time I found myself wondering about these issues I was still an adolescent. Though I have thought about them on and off ever since I have been reluctant to commit to paper in case I reveal the sad fact that my views are still basically those of an adolescent. The opportunity to respond to Joel Feinberg's splendid essay 'Absurd Self-Fulfilment' is, however, too good to refuse. I am therefore throwing caution to the wind.


Thursday, February 03, 2005
 
Thursday Calendar


 
Hathaway on a Theory of International Law Oona A. Hathaway (Yale University - Law School) has posted Between Power and Principle: An Integrated Theory of International Law (University of Chicago Law Review, Vol. 71, May 2005) on SSRN. Here is the abstract:
    Today, over 50,000 international treaties are in force, covering nearly every aspect of international affairs and nearly every facet of state authority. And yet many observers continue to argue that international law -- with its general absence of central enforcement and its typically voluntary character -- is ineffective, if not meaningless. This Article assesses and responds to this challenge, focusing on the largest area of public international law -- treaties. Combining insights from both political science and legal scholarship, it offers a theory of state decisions regarding treaty laws that accounts for the key ways in which such laws shape state behavior. This integrated theory of international law seeks to explain why countries would commit to treaties that potentially constrain their behavior and how the treaty, once accepted, influences or fails to influence state behavior. I argue that commitment and compliance are reciprocal influences on each other. If compliance is very costly or carries few benefits, for instance, countries will be unlikely to join a treaty in the first place. As a result, states behave in ways that standard theories miss - failing to join treaties, for example, that they could easily comply with, or joining treaties that they have little inclination to obey. The theory emphasizes two central means by which treaties shape what countries do. The first is the enforcement of international treaties by transnational actors and by rule of law institutions within nations that join the treaty. In particular, domestic enforcement mechanisms are a crucial force pushing countries to comply with international treaties -- and because they are, they are also a key influence upon countries' willingness to join such treaties in the first place. The second is the collateral consequences of treaty membership -- that is, the anticipated consequences for, among other things, foreign aid and investment, trade, and domestic political support. Collateral consequences arise when domestic and transnational actors premise their actions toward a state on the state's decision to accept or not accept international legal rules. As I demonstrate using both new empirical evidence and reanalysis of earlier studies, the relationship between treaties and state behavior hinges significantly on these two factors. The Article thus offers a vision of the potential and the limits of international law that integrates and moves beyond existing accounts.


 
Tillman on Lawson on the Orders, Resolutions and Votes Clause Seth Barrett Tillman (United States Court of Appeals, Third Circuit) has posted The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson on SSRN. Here is the abstract:
    Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Madison, in his Notes on the Debates in the Federal Convention (Aug. 15 & 16, 1787), said it meant the following: Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of [other] Bill[s] [properly stylized when enacted per Art. I, S. 7, cl. 2]. Thus, this clause is usually called the residual presentment clause -- or, the second presentment clause: it ensures presentment in spite of feared Madisonian legislative legerdemain attempting to manipulatively bypass the president's veto. Here is the alternative view put forward by a Commonwealth parliamentarian with whom I corresponded on this question. He is very well informed with regard to 18th century British and colonial parliamentary and administrative (treasury) practices. Indeed, my research relied extensively on contacts with foreign parliamentary officers and counsel, legislative clerks & secretaries. Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [which is a different case]. Reexamination of colonial and early state records leads me to conclude that the new view better captures the original understanding of the ORV Clause -- Madison's report notwithstanding. This new meaning stands our separation of powers jurisprudence on its head. It means the Supreme Court's holding in INS v. Chadha -- broadly speaking -- was fundamentally misconceived. Presentment is necessary, but not bicameralism, where single house orders are first authorized by a prior statute. At a deeper level it means that our interpretive community -- judges, legal academics, academics in related fields (government, political science, and history), and lawyers generally -- have forgotten what a clause of the Constitution meant, and that recovery of lost meaning required going to a foreigner! Professor Gary S. Lawson has taken the position that although the new view captures the original meaning of the clause, coordinate constitutional provisions, particularly the vesting clauses of Artices I, II and III, restrict the domain of the clause to congressional subpoenas and contempts. In this reply, I take the position that Congress's lawmaking powers under the ORV Clause are nearly coextensive with Congress's statutory lawmaking powers. Congress's powers under the ORV Clause extend far beyond congressional subpoenas and contempts.


 
Krishna & Morgan on Contracting for Information Vijay Krishna and John Morgan (Pennsylvania State University, University Park - Department of Economics and University of California, Berkeley - Economic Analysis & Policy Group) have posted Contracting for Information under Imperfect Commitment on SSRN. Here is the abstract:
    Organizational theory suggests that authority should lie in the hands of those with information, yet the power to transfer authority is rarely absolute in practice. We investigate the validity and application of this advice in a model of optimal contracting between an uninformed principal and informed agent where the principal’s commitment power is imperfect. We show that while full alignment of interests combined with delegation of authority is feasible, it is never optimal. The optimal contract is "bang-bang" - in one region of the state space, full alignment takes place, in the other, no alignment takes place. We then compare these contracts to those in which the principal has full commitment power as well as to several "informal" institutional arrangements.


 
Backer on Judicial Interpretation of Fundamental Rights Larry Cata Backer (Pennsylvania State University - The Dickinson School of Law) has posted Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America, and European Alternatives (Tulsa Law Journal, Vol. 36, No. 1, p. 117, Fall 2000) on SSRN. Here is the abstract:
    American constitutional jurisprudence has entered a period of decadence. The characteristics of this decadence is much in evidence in the constitutional jurisprudence of the American Supreme Court: judicial arbitrariness, the use of interpretive doctrine as an end rather than a means, disregard of existing interpretive doctrine and hyper-distinctions of fact, doctrine as a smokescreen for personal preference, and an inclination to permit the juridification of everyday life. Indeed, these characteristics of decadence are made worse by a bloated and ill-defined catalogue of interpretive doctrines that veils all distortion of constitutional principle in the service of personal politics. Here is a jurisprudence in decline, increasingly noted more for arbitrariness than principle. In this context, it is worth inquiring whether there might be a suggestion for improvement in the juristic traditions of European or supra-national constitutional systems. This article examines the latest example of the modern phenomenon of jurisprudential decline through an analysis of two First Amendment cases decided during the American Supreme Court's 1999-2000 Term. It then looks to the French and German systems of constitutional review, and the jurisprudence of the European Court of Human Rights, to determine whether other systems provide translatable lessons for a more effective and democratically based supervision of the interpretive function of the American Supreme Court. It suggests that European traditions of hierarchies of fundamental constitutional values provide at least a basis for the policing of judicial interpretation. In the absence of regularization and restraint, the American system of constitutional jurisprudence (like any other system relying on judicial interpretation) will collapse of its own weight. Equally likely is the possibility that such a system will be abandoned because, having become so engorged in detail, point and counterpoint, thrust and counter-thrust, rule and exception, it will prove useless to all but the theoretician and the pedant.


 
Gathii on the International Law of Governmental Legitimacy James Thuo Gathii (Albany Law School) has posted NeoLiberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy (Michigan Law Review, Vol. 98, p. 1996, 2000) on SSRN. Here is the abstract:
    In this article, I argue that liberal internationalism and neo-conservative realism are not the only alternatives to understanding and producing knowledge about legitimacy in international law. I offer a third world approach which I argue is intended as a counterweight to the overwhelming dominance of American and European academia in producing knowledge about international law. This third world approach represents a variety of shifting positions within the anti-hegemonic critique of Euro-American approaches represented by liberal internationalism and neo-conservative realism. In so doing, the aim of the paper is to open up the meaning of legitimacy to go beyond examining state legitimacy into examining legitimacy in a wider context that includes race, culture, class and sex. However, this project is not simply aimed at providing a countervailing or even an authentic notion of legitimacy or of the third world, but to overcome the given grounds of opposition between liberal internationalism and neo-conservative realism by opening up a space for a scholarly and political project that is open to change and innovation in addressing the pressing problems raised by concerns relating to legitimacy in international and national governance. Thus, I contend that if debates about legitimacy were decentered from their statism and Eurocentricity, and contextualized in the rich and complex interactions of neo-liberal economic reformism, the legacy of north–south relations and non-European ways of thinking about legitimacy, a richer discourse on legitimacy would be possible. For example, what does the discourse on legitimacy have to say about the globalization thesis that the pain of economic restructuring is the cost that a society must be willing to pay in order to produce a higher rate of growth, productivity, profit and investment? I argue that the distributional consequences of such a commitment to globalization should feature in discourses on legitimacy. I do so by inquiring how framing arguments in favor of economic reformism this way automatically de-legitimizes governmental initiatives to redress social division and hierarchy as invariably inefficient, wasteful and profit constraining. Ultimately, I argue in favor of spreading the discourse on legitimacy to the private sphere so that how such economic reforms favor capital against labor or vice versa are as central to legitimacy as are reforms in the political sphere of elections and liberal democracy.


Wednesday, February 02, 2005
 
Lastowka on Trademark & Authorship F. Gregory Lastowka (Rutgers, The State University of New Jersey - School of Law-Camden) has posted The Trademark Function of Authorship on SSRN. Here is the abstract:
    The use of authorial marks in relation to the sale of creative works, like the use of business trademarks in relation to the sale of goods and services, creates social benefits that deserve legal protection. Authorial attribution acts as an incentive to authorial production, provides valuable information to consumers, and provides additional social benefits that go beyond issues of market efficiency. However, the use of authorial marks, like the use of trademarks, can create social harms. Just as counterfeiters place illegitimate trademarks on goods, exploiters of entertainment markets may be tempted to misattribute authorship. In the United States, such deceptive practices were traditionally subject to the remedial mechanisms of trademark and unfair competition laws. However, in a recent decision, Dastar Corp. v. Twentieth Century Fox Film Corp. (2003), the United States Supreme Court held that federal trademark law does not address the misattribution of authorship. The Dastar decision stated that trademark protections were designed to protect the creators of tangible products sold in the marketplace. The Court stated that trademark law was not designed to protect the interests of those who originate creative ideas or communications. This article explores society's interests in ascertaining the authorship of creative works and explains how those interests both resemble and diverge from standard trademark interests. It concludes that authorship marks are sufficiently analogous to trademarks that the Dastar approach is misguided. Consumers can and should be protected from misattributions of authorship where such misattributions can easily be remedied by law and where the failure to provide such remedies is likely to lead to significant consumer harms.


 
The Legal Theory Canon Over at the Volokh Conspiracy, Randy Barnett & Todd Zywicki both have posts prompted by some thoughts offered by Larry Ribstein. Here's an excerpt from Todd's post:
    But Larry's observation triggers a second thought that I have long held--that incoming law professors would do well to dedicating themselves to mining the "classics" for ideas, especially if it is someone who is doing interdisciplinary work, but is not formally trained in an interdisciplinary field. I know economics best, and so for example, I constantly turn to Buchanan & Tullock, Alchian, Coase, Hayek, and others to stimulate and organize my thoughts. Another colleague of mine spent some fruitful time working with Frank Knight's Risk, Uncertainty, and Profit. Larry suggests revisiting Henry Manne, a point with which I agree. I am constantly coming across old chestnuts of articles that could be fruitfully mined for insights, especially those that predate modern law & economics, but which could easily be mined for law & economics. Instead, many young legal thinkers just glom onto odds and ends of contemporary works, looking especially for gimmicky products that can generate the "new ideas" Larry describes. I suspect that there is a similar canon in political science, philosophy, or history, that would be equally fruitful. I have often thought that revisiting the classics might provide a sounder foundation for new ideas than some of the more trendy stuff with a short shelf life. In addition, many of the classic works in law & economics are better written, more intuitive, and less formal than current professional scholarship, and thus will often be more accessible and useful to those lacking formal training.
What should be included in the "Legal Theory" canon, definied broadly to include philosophy of law and other fundamental work in normative legal theory? Key works by Hart, Dworkin, and Raz might start the list. Email your suggestions to lsolum@sandiego.edu!


 
The Constitution in Exile Check out The Return of Constitution in Exile? by Jeffrey Jamison over at ACS Blog. Here is a taste:
    An impending vacancy on the court is all the more relevant in light of George Washington Law School Professor and New Republic Legal Affairs Editor Jeffrey Rosen's pre-election warning that, “instead of revisiting Roe v. Wade, a second Bush administration is more likely to focus on judges who will restore the Constitution in Exile.” The Constitution in Exile is not an amendment to or article of the Constitution locked away or banished to a tropical island waiting for Nicholas Cage to discover it using clues from the Federalist Papers, but a term first coined in 1995 by Federal Appeals Court Judge and failed Reagan Supreme Court nominee Douglas Ginsburg to describe a conservative reading of the Constitution.
The phrase "a conservative reading" doesn't seem quite accurate. Some conservative readings of the constitution would depart quite radically from the original understanding of the text--others might be closer to it. The idea of a constitution is exile, as I understand it, is premised on the notion that New Deal jurisprudence resulted in the nullification of some portions of the constitution. Jamison's post is opinionated but well worth a read.


 
Wednesday Calendar
    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.


 
Rossi on the Deference Trap Jim Rossi (Florida State University - College of Law) has posted Moving Public Law Out of the Deference Trap in Regulated Industries on SSRN. Here is the abstract:
    This Article argues that public law has fallen into what I call a "deference trap" in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial reluctance to intervene in disputes involving political institutions, such as regulatory agencies and states. By reassessing the deference trap across the legal doctrines that are effecting emerging telecommunications and electric power markets, public law can deliver much more for deregulated markets. The deference trap poses a particular cost as markets are deregulated, one that may not have been present during previous regulatory eras in which public and private interests in regulatory bargaining were more likely to converge. In expanding the range and degree of potential divergence between public and private interests, deregulation challenges policy makers and courts to reevaluate many of the traditional public law doctrines that frame the process for defining and implementing the rules in competitive markets. This Article sets out to advance this project in the context of three vignettes. In doing so, I draw on a bargaining account of regulation, supplemented with a comparative institutional analysis. The approach evaluates the institutional setting for governance of deregulated markets; it does not limit its analysis to the decisions of a single regulator but pays attention to alternative (and often competiting) institutions, including courts, Congress and state legislatures, and state versus federal regulation. Part I illustrates that public law has fallen into a deference trap in the context of the filed tariff doctrine and suggests that, by focusing on bargaining conditions in tariffing, courts could minimize strategic forum shopping in regulatory enforcement. Part II warns against public law falling into a deference trap in the context of judicial review of state regulation under the dormant commerce clause and state action immunity to antitrust enforcement, suggesting that courts correct for this by taking into account private firm incentives in the state lawmaking process. Part III suggests that federal preemption, as currently construed, also invites a deference trap which can create regulatory commons problems and recommends that courts reformulate preemption principles to realign incentive to facilitate regulatory coordination between the federal government and states. By isolating ex ante and ex post incentives and stressing the institutional context for institutional bargaining in the regulatory process, together these examples reveal weaknesses in traditional doctrines of regulatory law in deregulated markets and suggest ways courts might correct for them.


 
New on the Stanford Encyclopedia of Philosophy Thomas Hurka's entry on Moore's Moral Philosophy is now available. Here is a taste:
    G.E. Moore's Principia Ethica of 1903 is often considered a revolutionary work that set a new agenda for 20th-century ethics. This historical view is hard to sustain, however. In metaethics Moore's non-naturalist position was close to that defended by Henry Sidgwick and other late 19th-century philosophers such as Hastings Rashdall, Franz Brentano, and J.M.E. McTaggart; in normative ethics his ideal consequentialism likewise echoed views of Rashdall, Brentano, and McTaggart. But Principia Ethica presented its views with unusual vigor and force. In particular, it made much more of the alleged errors of metaethical naturalism than Sidgwick or Rashdall had, saying they vitiated most previous moral philosophy. For this reason, Moore's work had a disproportionate influence on 20th-century moral philosophy and remains the best-known expression of a general approach to ethics also shared with later writers such as H.A. Prichard, W.D. Ross, and C.D. Broad.


 
Khanna on an Economic Analysis of Criminal Procedure for Corporate Defendants Vikramaditya S. Khanna (University of Michigan at Ann Arbor - Law School) has posted Corporate Defendants and the Protections of Criminal Procedure: An Economic Analysis on SSRN. Here is the abstract:
    Corporations are frequently treated as "persons" under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill that gap. My analysis concludes that the concerns animating most procedural protections in the corporate context (i.e., reducing the costs of adjudicative errors and abusive prosecutorial behavior) would require procedural protections that differ for corporate defendants depending on the identity of the moving party (e.g., government or private litigant), and the type of sanction the corporation is facing, but not on the type of proceedings (criminal or civil) against the corporation. The analysis thus calls for a reorientation of procedural protections for corporate defendants along these lines rather than on the current criminal - civil dichotomy. The implications of such a reorientation are sketched in this paper and may, at times, suggest having stronger protections for corporations in civil proceedings than in criminal proceedings.


 
Onwuachi-Willig on Thomas & Affirmative Action Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted Using the Master's 'Tool' to Dismantle His House: Why Justice Clarence Thomas Makes the Case for Affirmative Action (Arizona Law Review, Vol. 47, 2005) on SSRN. Here is the abstract:
    Justice Clarence Thomas, the second black man to sit on the Supreme Court, is famous, or rather infamous, for his opposition to affirmative action. His strongest critics condemn him for attacking the very preferences that helped him reach the Supreme Court. None, however, have considered how Thomas's life itself may be used as a justification for affirmative action. In what ways can the master's "tool" be used to dismantle his house? This Article analyzes Justice Thomas's appointment to the Supreme Court and contends that his nomination to and performance on the Court ironically make the case for forward-looking affirmative action. Specifically, this Article examines various pro-affirmative action arguments, such as the benefit of cross-racial understanding through interracial diversity, the destruction of stereotypes through an exposure to intraracial diversity of viewpoints, and the redefining of traditional standards of merit, and then utilizes such reasoning to explain how Justice Thomas himself actually lends support to a continuation of forward-looking affirmative action.


 
Carbone on Backward Looking Jurisprudence & Dissolution June Carbone (Santa Clara School of Law) has posted Back to the Future: The Perils and Promise of a Backward Looking Jurisprudence on SSRN. Here is the abstract:
    The ALI Principles of Family Dissolution delight in the existential uncertainty of arrangements whose legal consequences cannot be fixed until the point at which a relationship dissolves. They strive to suspend judgment, moral and practical, long enough to create a private space for the creation of relationships free from the historical weight of family regulation. When families break down, however, the Principles do not hesitate to intervene, to secure protection of the vulnerable and to provide a foundation for family members to continue on the basis of what has come before. This paper critiques the ALI's "backward looking" jurisprudence, arguing that it is backward looking in three respects: 1) it literally looks backward toward the parties' circumstances over the course of their relationship to determine the consequences of dissolution; 2) it adopts an explicitly ex post rather than an ex ante perspective, focusing on the "costs of dissolution" rather than the terms of engagement; and 3) it is more determined to reject historical approaches to family governance than to articulate a new regime. The paper concludes that while the ALI approach may succeed as part of a family law of transition, to succeed more permanently in forging a new basis for family obligation will require making the terms of commitment clear at the beginning, and not just the end, of relationships.


Tuesday, February 01, 2005

 
Thompson on Psychiatric Neuroimaging in the Interrogation of Foreign Detainees Sean Kevin Thompson (Cornell University - School of Law) has posted A Place Where There is No Darkness?: Psychiatric Neuroimaging in the Interrogation of Foreign Detainees under U.S. and International Law (Cornell Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
    This Note seeks to analyze the legality of the use of fMRI during the interrogation of foreign detainees in U.S. custody. The Note first determines what law is applicable to three classes of foreign detainees: POWs and civilians entitled to protection under the Geneva Conventions, detainees not entitled to Geneva protections who are being held within U.S. territory, and detainees not entitled to Geneva protections who are being held outside U.S. territory. The difference in a detainee's physical location of non-Geneva detainees is important. Under current U.S. policy, detainees on U.S. territory are entitled to protection under the U.S. Constitution and various international human rights treaties against custodial conduct that "shocks the conscience." Detainees being held outside U.S. territory, however, are only protected by the Federal Torture Statute and, therefore, only protected against torture. The Note argues that the use of fMRI technology in interrogation would likely violate Geneva's anti-coercion provisions, as well as bans on medical and scientific experimentation. The question is much closer for individuals not entitled to protection under Geneva. In most cases, it would probably be unlawful to subject foreign detainees on U.S. territory to fMRI scanning, as the scanning may constitute "conscious shocking" custodial conduct prohibited by the U.S. Constitution and various international human rights treaties. However, the use of fMRI would almost certainly not constitute torture. Consequently, it would probably be legal to subject detainees not being held on U.S. territory to fMRI scanning during interrogation.


 
New on the Stanford Encyclopedia of Philosophy Elizabeth Anderson's Dewey's Moral Philosophy is now available. Here is a taste:
    John Dewey (1859-1952) lived from the Civil War to the Cold War, a period of extraordinary social, economic, demographic, political and technological change. During his lifetime the United States changed from a rural to an urban society, from an agricultural to an industrial economy, from a regional to a world power. It emancipated its slaves, but subjected them to white supremacy. It absorbed millions of immigrants from Europe and Asia, but faced wrenching conflicts between capital and labor as they were integrated into the urban industrial economy. It granted women the vote, but resisted their full integration into educational and economic institutions. As the face-to-face communal life of small villages and towns waned, it confronted the need to create new forms of community life capable of sustaining democracy on urban and national scales. Dewey believed that neither traditional moral norms nor traditional philosophical ethics were up to the task of coping with the problems raised by these dramatic transformations. Traditional morality was adapted to conditions that no longer existed. Hidebound and unreflective, it was incapable of changing so as to effectively address the problems raised by new circumstances. Traditional philosophical ethics sought to discover and justify fixed moral goals and principles by dogmatic methods. Its preoccupation with reducing the diverse sources of moral insight to a single fixed principle subordinated practical service to ordinary people to the futile search for certainty, stability, and simplicity. In practice, both traditional morality and philosophical ethics served the interests of elites at the expense of most people. To address the problems raised by social change, moral practice needed to be thoroughly reconstructed, so that it contained within itself the disposition to respond intelligently to new circumstances. Dewey saw his reconstruction of philosophical ethics as a means to effect this practical reconstruction. Dewey's ethics replaces the goal of identifying an ultimate end or supreme principle that can serve as a criterion of ethical evaluation with the goal of identifying a method for improving our value judgments. Dewey argued that ethical inquiry is of a piece with empirical inquiry more generally. It is the use of reflective intelligence to revise one's judgments in light of the consequences of acting on them. Value judgments are tools for enabling the satisfactory redirection of conduct when habit no longer suffices to direct it. As tools, they can be evaluated instrumentally, in terms of their success in guiding conduct. We test our value judgments by putting them into practice and seeing whether the results are satisfactory — whether they solve the problems they were designed to solve, whether we find their consequences acceptable, whether they enable successful responses to novel problems, whether living in accordance with alternative value judgments yields more satisfactory results. We achieve moral progress and maturity to the extent that we adopt habits of reflectively revising our value judgments in response to the widest consequences for everyone of living them out. This pragmatic approach requires that we locate the conditions of warrant for our value judgments in human conduct itself, not in any a priori fixed reference point outside of conduct, such as in God's commands, Platonic Forms, pure reason, or “nature,” considered as giving humans a fixed telos. To do so requires that we understand different types of value judgments in functional terms, as forms of conduct that play distinctive roles in the life of reflective, social beings. Dewey thereby offers a naturalistic metaethic of value judgments, grounded in developmental and social psychology.


 
Tuesday Calendar


 
Symposium Announcement: Eminent Domain, Urban Renewal and the Constitution - Legal & Policy Perspectives
    Eminent Domain, Urban Renewal and the Constitution - Legal & Policy Perspectives REGISTRATION and RECEPTION 8:30 - 9:00 a.m. WELCOME AND INTRODUCTION 9:00 - 9:15 a.m. PANEL I - Public Use: Fifth Amendment Limits on the Use of Eminent Domain 9:15 - 10:45 a.m. This panel considers the extent to which the Fifth Amendment, which provides that "…nor shall private property be taken for public use without just compensation," limits the purposes for which the government's eminent domain power can be used. Specifically, the panel will examine the extent to which the Fifth Amendment should be read to limit or preclude the use of eminent domain for blight remediation, economic development, or other economic purposes, or whether "public use" constitutes any and all uses deemed by the legislature or other political bodies to be in the public interest. While through much of the 20th century courts gave state and local governments' rather wide discretion in determining what constitutes a "public use," in recent years some courts have begun to read "public use" more narrowly. Professor Eric R. Claeys, Saint Louis University School of Law Professor Thomas W. Merrill, Columbia University School of Law Professor John Edward Mogk, Wayne State University Law School Timothy Sandefur, Esq., Staff Attorney, Pacific Legal Foundation Professor Steven J. Eagle, George Mason University School of Law, Moderator PANEL II- The Value of Eminent Domain: An Effective Economic Development Strategy? 11:00 a.m. - 12:30 p.m. This panel addresses the policy questions raised by eminent domain, specifically the extent to which the eminent domain power is necessary, or even useful, for urban economic development. While there is little dispute that eminent domain is an important governmental tool for traditional public purposes, such as road construction and the like, there is much dispute over whether use of eminent domain to spur economic development is, in practice, an effective economic development strategy. Speakers will address the pros and cons of using eminent domain as a policy tool and potential alternatives to eminent domain. Sam Staley, Director, Urban Futures Program, The Reason Foundation Professor Thomas E. Bier, Director, Center for Housing Research & Policy, Cleveland State University Jeffrey Finkle, President and CEO, International Economic Development Council LUNCH BREAK Complimentary box lunch provided 12:30 - 1:00 p.m. DEBATE 1:00 - 2:30 p.m. The Supreme Court has granted certiorari in the case of Kelo et al. v. City of New London to consider whether the Fifth Amendment authorizes the exercise of eminent domain to promote economic development, in this case to help a government increase its tax revenue and to create jobs. The debate features representatives of the two sides (or sympathetic amici) to give a sense of the arguments that will be heard by the Court. Bert Gall, Staff Attorney, Institute for Justice Professor Jonathan H. Adler, Case Western Reserve University School of Law Friday, February 4, 2005 Case Western Reserve University School of Law Moot Courtroom (A59) 11075 East Boulevard Cleveland, Ohio


 
Symposium Available Online Electronic versions of the submissions to the Journal of Legislation symposium (Volume 31, 2004) on election-law superblogger Rick Hasen's book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore, are now available. Papers are by Guy Charles, Luis Fuentes-Rohwer, John Nagle, and Rick Hasen.