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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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Tuesday, May 31, 2005
 
Book Announcement: Rossi on Regulatory Bargaining and Public Law
    Jim Rossi, Regulatory Bargaining and Public Law (Cambridge University Press, 2005), ISBN 0521838924 – available June 1, 2005. In this book, Professor Rossi explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries, such as electric power and telecommunications. Leading media accounts blame deregulated markets for failures in competitive restructuring policies, as with the California electricity deregulation fiasco. However, Professor Rossi argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets. Among the issues address in this book are consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. Professor Rossi’s book warns against a ‘deference trap’ leading courts to passive roles in conflicts involving political institutions, such as regulatory agencies and states. To address such concerns, Professor Rossi’s book suggests a unified set of default rules to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment. The first part of the book explores the minimal role that judicial intervention played for much of the twentieth century in public utility industries and how deregulation presents new opportunities and challenges for public law. The second part of the book explores the role of public law in a deregulatory environment, focusing on the positive and negative influences it creates for the behavior of private stakeholders and public institutions in a bargaining-focused political process. Jim Rossi is Harry M. Walborsky Professor of Law and Associate Dean for Research at Florida State University College of Law. Advanced Praise:
      Regulatory Bargaining and Public Law is a must-read for anyone with a serious interest in the modern law of regulation. Rossi analyzes the new forms of regulation – misnamed “deregulation” in the popular press and in much academic work – using techniques originally developed for analyzing contracts. Rossi’s approach yields fresh, new insights. - Matthew Spitzer, University of Southern California School of Law Jim Rossi has thought long and creatively about the role of courts in our evolving deregulated economy. He warns against a “deference trap” leading courts to passive roles in conflicts involving political institutions like regulatory agencies and states. When doctrines like the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust, and federal preemption traditionally signal “hands off” to the courts, a new sensitivity to incentives and the context of institutional bargaining are sorely needed. -Judge Richard D. Cudahy, U.S. Court of Appeals for the 7th Circuit As Professor Rossi shows, the term "deregulation" may be the greatest misnomer in the legal lexicon, for rather than eliminating regulation it replaces one regulatory scheme with a new and even more complex one. Regulatory Bargaining and Public Law analyzes the resulting interactions between regulators, industry, and other groups, demonstrating that these interactions can either further or frustrate the goal of consumer welfare. Public policy analysts, legal scholars, and students of political economy will all find the book an invaluable resource. -Daniel Farber, University of California, Berkeley Jim Rossi's Regulatory Bargaining and Public Law should be on the bookshelf of everyone interested in the regulatory process, antitrust, and public law. Beginning with a historical perspective that stretches back to the 1830s and the Charles River Bridge case, Rossi carries our conception of regulated industry away from traditional neoclassical notions of natural monopoly and rate-of-return regulation to more Coasian ideas that each instance of regulation is a special kind of bargain with the sovereign. That is, rather than taking areas of enterprise out of the market, so to speak, regulation is simply a special case of market bargaining. In the process Rossi explores the consequences of deregulation and other alternatives to traditional cost-of-service rate making. Of particular concern is the divergence of public and private interests that can occur when firms and the interests groups aligned with them try to obtain the best deal that they can through the regulatory bargaining process. This model helps Professor Rossi develop a cogent set of explanations for what went wrong in certain cases of deregulatory failure, such as the California electric power crisis. -Herbert Hovenkamp, University of Iowa


 
Smith on Disowning Our Past Steven Douglas Smith (University of San Diego School of Law) has posted Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past? on SSRN. Here is the abstract:
    Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that [w]e are a religious people whose institutions presuppose a Supreme Being. What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's Supreme Being assertion be reconciled with the no endorsement prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions.
Everything I read by Smith impresses and enlightens me!


 
Kamisar on Dickerson Yale Kamisar (University of San Diego - School of Law) has posted Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters on SSRN. Here is the abstract:
    It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this paper I want to focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely in violation of Miranda's "prophylactic rules." This terminology has plagued the Miranda doctrine and puzzled and provoked many commentators since then - Justice Rehnquist utilized this label to describe and to diminish Miranda - and he was the first Justice ever to do so - thirty-one years ago.


 
Galle on Independent Executive Authority to Interpret the Constitution Brian Galle has posted The Justice of Administration: Judicial Responses to Executive Claims of Independent Authority to Interpret the Constitution on SSRN. Here is the abstract:
    There is a growing trend in federal agencies towards explicit consideration of the Constitution, and the principles of justice that it suggests. In controversies ranging from the Justice Department's challenge to the Oregon Death With Dignity Act to IRS regulation of the political activities of non-profits, agencies have come more and more to rely on their own view of what the Constitution requires or implies. Academic commentary almost universally lauds this move toward interpretive autonomy, if not the specific interpretations that the current administration has offered. Advocates of republicanism and cooperative regulation welcome the opportunities for wider public deliberation on constitutional issues that agency interpretation offers. And critics of this Supreme Court on both left and right are eager to find any other authority willing to countenance a different substantive view of rights, whether that be a right to be free of discrimination or a right to life. At the same time, the Court increasingly has suggested that the legitimacy of such interpretations may be in doubt. In City of Boerne v. Flores and similar cases it rejects, almost disdainfully, the notion that Congress might be a worthy interpretive partner in elaborating constitutional norms. And its opinion in a case holding that agency regulations prohibiting disparate impact discrimination are not privately enforceable might be read to imply that there is a serious constitutional doubt whether an agency can exercise the sort of independent constitutional interpretive authority Boerne seems to condemn. Tax practitioners may recall similar doubts about the Service's authority dating back to the controversy over Bob Jones University. This Article strives to explain the sharp divergence between critical consensus and judicial reality, with the aim of finding a way to justify cooperation and republican deliberation to a doubting Court. I argue that existing accounts fail to explain judicial attitudes because they do not consider the unique institutional needs of federal judges. Most significantly, judicial claims to sole authority to interpret the Constitution may be part of the constitutive rhetoric of judging, through which the judiciary builds and entrenches a set of norms for its own behavior. These norms, when internalized by judges, help to distinguish judicial behavior from the ordinary politics that judicial review aspires to limit. I conclude, however, that judicial rhetoric, even in combination with other plausible arguments in favor of exclusivity, is persuasive in at most a small fraction of the constitutional cases that come before courts. I therefore propose a method, based on a survey and synthesis of those arguments, that a court can use in deciding for any given agency interpretation whether the agency's decision is a permissible, complementary elaboration or an impermissible intrusion. I then show how the method offers important insights into, for example, the disputes over disparate impact regulations and the IRS's oversight of non-profit entities.


 
Book Announcement: Economics for Lawyers
    Economics for Lawyers by Richard A. Ippolito To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/7990.html Whether dealing with contracts, tort actions, or government regulations, lawyers are more likely to be successful if they are conversant in economics. Economics for Lawyers provides the essential tools to understand the economic basis of law. Through rigorous analysis illustrated with simple graphs and a wide range of legal examples, Richard Ippolito focuses on a few key concepts and shows how they play out in numerous applications. Cloth | $65.00 / £41.95 | ISBN: 0-691-12177-X


 
Call for Papers: Ancient Philosophy in the Contemporary World
    CALL FOR PAPERS "The Value of Ancient Philosophy for the Contemporary World" A Special Issue of PHILOSOPHY IN THE CONTEMPORARY WORLD Special Issue Editor: Robert Metcalf, University of Colorado, Denver Journal Editor: Andrew Fiala, California State University, Fresno How may we retrieve the insights of Greek philosophy for the contemporary world? How have contemporary thinkers appropriated ancient philosophy, and what possibilities are left open for different appropriations? This special issue of the journal, Philosophy in the Contemporary World, will engage these sorts of questions, and will feature contributions from leading scholars in ancient philosophy. In accord with the aims of the journal, essays in response to this call for papers should be written for a wide audience of philosophers who are interested in the various ways that the history of philosophy can be brought to bear on contemporary issues. Essays on any figure/topic in ancient philosophy are welcome, so long as they are 3000-4000 words in length (not including endnotes). This special issue is scheduled for publication early in 2006. Submission Deadline: NOVEMBER 15, 2005 Prepare submission for blind review and attach it as a Word document to an email sent to robert.metcalf@cudenver.edu Include an abstract of 150 words or less.


Monday, May 30, 2005
 
Onwuachi-Willig on the "Marriage Cure" Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted The Return of the Ring (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
    In 1996, the United States Congress began its imposition of a marital solution to poverty when it enacted the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"). Nearly ten years later, Congress has strengthened its commitment to marriage as a cure for welfare dependency with proposals such as the Personal Responsibility, Work, and Family Promotion Act of 2005. If passed, this bill would provide 1.5 billion dollars for pro-marriage programs and require each state to explain how its welfare program will encourage marriage for single mothers who receive public aid. With these proposals, Congress has continued to construct poverty as a private rather than public problem. These programs, designed to move poor individuals into the husband-wife, normatively heterosexual dyad, are part of a long-term plan for privatizing economic responsibility for children in impoverished households. This Article situates recent welfare debates concerning the Temporary Assistance to Needy Families ("TANF") program, in particular those debates concerning the proposal of the "marriage cure," within a post-colonial context and examines, both historically and currently, how the law of marriage has been used in the United States as a tool for "civilizing" outsiders. Part I analyzes how marriage laws were used in the post-bellum period as a means of minimizing states' economic responsibility to provide for newly-emancipated Blacks, especially former slave children. Part II scrutinizes the racialization of welfare recipients in the United States in recent history and dissects current and proposed TANF marriage-promotion provisions to reveal how marriage and law are again being operated as tools for domesticating welfare queens. Finally, this Article concludes by exploring alternatives to this proposed marriage cure to poverty.


 
Matasar on the Fall of American Legal Education Richard Allan Matasar (New York Law School) has posted The Rise and Fall of American Legal Education (New York Law School Law Review, Vol. 49 No. 2, 2004-2005) on SSRN. Here is the abstract:
    American legal education has been enormously successful, fueled by high enrollment, high tuition, and a seemingly endless supply of new students. This article suggests that the model is not sustainable over the long run given the current model of education and financing. Other than the handful of highly prestigious or very low cost schools, most institutions face a precarious future. The issue is one of value; prospective students, faculty, and the public look to prestige in making decisions. This leads schools to engage in a race for higher rankings. In the short-run, schools can dress their outward appearance, but doing so fails to improve their actual quality. This failure ultimately places the school in jeopardy if costs continue to rise and job prospects do not keep pace with increased cost. The article concludes that most schools have neither the prestige nor low cost to survive without providing real value to their students. They will fail unless they radically change their business models and adopt new business techniques, including reducing the cycle time to adulthood, diversifying their customer bases, joining international consortia, partnerships, and distance learning projects, and considering mergers, acquisitions, and going out of business sales. The article proposes that schools establish real missions to build better professionals.


 
Lieberman on Bad Writing Jethro Lieberman (New York Law School - Law) has posted Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetroic (New York Law School Law Review, Vol. 49, pp. 649-664, 2004-2005) on SSRN. Here is the abstract:
    Like most kinds of writing, academic writing rarely shines, but far more often than ordinary writing scholarly prose is murky and impenetrable. This brief jeu d'esprit considers several forms of bad writing, rejecting the claim, increasingly made in academic quarters, that "difficult writing" is necessary to the scholarly enterprise. Bloated, foggy, and enigmatic prose masquerades as profundity that escapes conventional mental grooves. In fact it is useless, unethical, and taken far enough, evil.



 
Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
    Introduction The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” broader or narrower than jurisprudence? And why should we care about this terminology?
    As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory.
    Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.”
    Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory.
    So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that.
    Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view.
    What can we say about our three terms—jurisprudence, philosophy of law, and legal theory?
    Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root.
    Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.
    Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links).
    The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy.
    Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic.
    Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use.


Saturday, May 28, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends a pair of books, Transformation of American Law, 1780-1860 and The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy, both by Morton J. Horwitz. Here´s a blurb:
    Awarded the Bancroft Prize in American History in 1978, Morton J. Horwitz's The Transformation of American Law, 1780-1860 is considered one of the most significant works ever published in American legal history. Since its publication in 1977, it has become the standard source on early nineteenth century American law. In this monumental book, Morton J. Horwitz offers a sweeping overview of the emergence of our national (and modern) legal system from English and colonial antecedents. He begins with the common law, which emerged during the eighteenth century as the standard doctrine with which to solve disputes in an egalitarian manner. He shows that the turning point in the use of common law came after 1790, when the law was slowly transformed to favor economic growth and development and the courts began to spur economic competition instead of circumscribe it. This new instrumental law would flourish during the nineteenth century as the legal profession and the mercantile elite forged a mutually beneficial alliance to gain wealth and power. Horwitz also demonstrates how the emergence of contract law corresponded to the development of economic and legal institutions of exchange. And he discusses how the rise of the market economy influenced legal practices, how contracts became ways to negate preexisting common law duties, and how (to the benefit of entrepreneurs and commercial groups) the courts were able to overthrow earlier anticommercial legal rules. Previous historical studies have viewed law and policy as an accurate reflection of the needs of an undifferentiated society. In The Transformation of American Law, Horwitz successfully challenges this misconception and shows how in the eighty years after the American Revolution, a major change in law took place in which aspects of social struggle turned to legal channels for resolution. Looking into the distribution of wealth and power during this time, Horwitz finds indeed that the change in legal ideology enabled commercial groups to win a disproportionate amount of wealth and power in American society. An accessible account of the history of law, this is a powerful statement on the great role of the legal system in American economic development.


 
Download of the Week The Download of the Week is The Perils of Pervasive Legal Instrumentalism by Brian Z. Tamanaha. I love this paper! Here is the abstract:
    In contemporary U.S. legal culture, the law is widely seen as an instrument to serve ends. Many legal theories construe law in instrumental terms (law is an instrument to maximize wealth, law is an instrument of male patriarchy, etc.). Law professors indoctrinate students to reason instrumentally using legal rules and policy arguments. Practicing lawyers manipulate legal rules and processes instrumentally when serving clients. Cause lawyers use litigation as an instrument to bring about social change. Judges increasingly engage in instrumental analysis when deciding cases. Judicial appointments are viewed instrumentally by groups within society dedicated to seating like-minded judges who will render decisions consistent with their preferred ends. Legislation and administrative regulations are seen as empty vessels that can be filled in and applied to achieve whatever ends might be desired. A law that is seen in purely instrumental terms has no integrity onto itself. It is simply a tool - a powerful tool - to be used in pursuit of the tasks or goals at hand. So pervasive is an instrumental view of law today that we seldom recognize that it is relatively new - having become entrenched in the course of the late 19th and 20th Centuries - and we have forgotten how radically different it is from previous understandings of law. In a real sense, we have embarked upon a social experiment of the greatest magnitude, with no predecessors to offer guidance or to warn of pitfalls. There are now plentiful signs that this experiment may be ill-fated. The core thesis of this essay is this: if the law is viewed in instrumental terms in a context of sharp disagreement over the social good, what will follow is a Hobbsean war of all against all that takes place within the legal order over control of the legal apparatus. Opposing groups within society will attempt to seize or co-opt the law in every context possible, and in every way possible, to enlist or wield it on behalf of achieving the ends they desire. Even those groups that might prefer to abstain from seizing the law are forced nevertheless to engage in the contest, if only defensively to keep it out of the hands of their less restrained opponents. Spiraling conflicts will ensue with no evident halting point or termination (short of exhaustion of resources or total victory by one side). This essay, a written version of the inaugural Montesquieu Lecture delivered at the University of Tilburg, liberally mixes intellectual history and rational reconstruction to demonstrate this thesis. The first half of the essay is a historical exploration that begins with non-instrumental views of law and traces the emergence of instrumental views of law; the second half provides a brief survey of contemporary legal instrumentalism in several of the areas set forth above, offering examples and drawing out worrisome implications.
Download it while its hot!


 
Conference Announcement: The Unity of Reason at St. Andrews
    THE UNITY OF REASON CONFERENCE 18th – 20the June 2005 Department of Moral Philosophy, University of St. Andrews IMPORTANT NOTICE: We ask all people wishing to attend to let us know by June 3rd and, if possible, to send their cheques by then too. There may be a surcharge for later applications. Details of the conference, with conference packages and how to apply, can be found at: http://www.st-andrews.ac.uk/academic/philosophy/unity.html SPEAKERS: Michael Bratman (Stanford): ‘Intention, Belief, Practical, Theoretical’ John Broome (Oxford): ‘Rationality and reasoning’ Jonathan Dancy (Reading / UT Austin): ‘Reasons and Rationality’ Stephen Darwall (Michigan): ‘Second-Personal Reasons for Acting: A Fundamental Difference With Theoretical Reason’ Pascal Engel (Sorbonne, Paris): ‘Theoretical Reason First’ Alan Millar (Stirling): ‘How Reasons for Action differ from Reasons for Belief’ John Skorupski (St Andrews): ‘Reasons: Single Form, Plural Truths’ Jens Timmermann (St Andrews): ‘The Unity of Reason: Kantian Perspectives’ Theo von Willigenburg (Erasmus University, Rotterdam): ‘Reasons, Reasoning and Oughtness’ GRADUATE SPEAKERS: Jeppe Andersen (Reading): 'Swimming Upstream - Problems for Smith's Account of the Nature of Reasons' Tony Booth (Durham): 'How to Defend the Unity of Justification' Jamie Dow (St. Andrews): 'What makes a Good Judge? Emotions and the Weighing of Practical and Epistemic Reasons' Antti Kauppinen (Helsinki): 'Practical Reasoning and Self-Knowledge' Conor McHugh (Edinburgh): 'Having a Reason to Believe What You See' Bryony Pierce (Open U): 'Rationality and Ends-Awareness' Robert Pulvertaft (Copenhagen): 'Normative Reasons and Normative Principles' Ezra Macdonald (Bristol): 'Quasi-Realism and the Unity of Reason' If you have any questions about the conference or applications, don’t hesitate to contact us at: sjr5@st-andrews.ac.uk CONFERENCE THEME Reasons and rationality are philosophically fundamental concepts. Work done over the last few decades in a variety of areas of philosophy – including epistemology, philosophy of mind and action, rational choice theory and ethics – has made it timely to re-examine the philosophical questions that cluster around them and easier to do so in a rigorous and comprehensive way. The conference will revolve around the following questions: 1. Can a uniform account of reasons (or reasoning) in the (prima facie) three spheres of action, belief, and feeling/evaluation be given? Or are they in important ways diverse? 2. What role if any does 'reason' play (or: do reasons play) in the domain of feeling, as against action and belief? 3. Is one of the spheres dominant? For example: reasoning in all spheres is finally governed by practical reason, so that what there is reason to believe or feel is finally a practical question. Or: reasoning in all spheres is finally governed by theoretical reason, so that the result of reasoning is always a belief concerning fact or value, duty etc. 4. Is 'reason' in some sense one basic faculty, capacity, or competence, or is it a multiform, not very integrated set of competences?


 
Journal Announcement: New Issue of the Yale Law Journal
    Symposiums Globalization and Distrust Anupam Chander There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now, in the post-ontological era of international law, the critique has shifted. International law is denounced not for its weakness but for its vigor, specifically its transfer of authority from local to international bodies. Critics find a “democratic deficit” in almost all international institutions—from the World Trade Organization to the International Criminal Court to even the World Health Organization. [ MORE ] The Coherentism of Democracy and Distrust Michael C. Dorf John Hart Ely’s justly celebrated Democracy and Distrust aims to reconcile judicial review with the fundamentally democratic character of the American Constitution. Yet taken at face value, the book does not establish that the American Constitution is fundamentally democratic. While pointing to the large number of constitutional provisions that concern the mechanics of government, Ely offers no satisfactory account of why these provisions should be used to infer a master principle to guide interpretation of the document as a whole. [ MORE ] Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics William N. Eskridge Jr. John Hart Ely argued that judicial review is most appropriate when democratic politics has broken down. Professor Eskridge argues that judicial review is also appropriate to lower the stakes of pluralist politics. Stakes get high when the system becomes embroiled in bitter disputes that drive salient, productive groups away from political engagement. [ MORE ] John Hart Ely and the Problem of Gerrymandering: The Lion in Winter Pamela S. Karlan In Democracy and Distrust, John Hart Ely articulated a “participation-oriented, representation-reinforcing approach to judicial review” that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications of his work for a central issue of democratic governance: legislative apportionment. [ MORE ] Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy) Charles R. Lawrence III More than ever, urban school systems are segregated by race and class. While a chief cause of this segregation is the flight of white and upper-middle-class black families from predominantly black public schools, there is little discussion of white flight in contemporary education policy debates. Instead, our conversations frame the causes of and remedies for educational inequality in terms of racially neutral private choices. [ MORE ] Comment War and Uncertainty Lori Fisler Damrosch This comment builds on John Hart Ely’s concern in War and Responsibility with Congress’s duty to investigate the factual predicate for going to war in circumstances of uncertainty. Professor Damrosch argues that Congress should exercise its constitutional power to decide to authorize military conflict with the fullest feasible understanding of policy-relevant factual context, but that the contextual investigation Congress should undertake should not be confused with a kind of incident-specific fact-finding that Congress is ill suited to perform. [ MORE ] Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror Jonathan Simon In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved version of the War Powers Resolution, a solution entirely in keeping with his support for theories of legal process more generally. [ MORE ] Gideon in White/Gideon in Black: Race and Identity in Lawyering Anthony V. Alfieri Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely’s theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely’s work on judicial review, reflected in his early contribution to Gideon v. Wainwright and his service as a public defender, resonate deeply with the practice of lawyering for the poor and the disenfranchised. [ MORE ] The Duty To Defend Barbara Allen Babcock Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely’s contributions to criminal defense. [ MORE ]


Friday, May 27, 2005
 
Blogging from Granada, Part Three It’s Friday morning in Granada, and I’m sitting in a mostly empty (and huge) auditorium. William Twining, Professor Emeritus at University College, London, is this morning’s speaker, and his talk is entitled “General Jurisprudence and Globalization.” Twining has a distinctive voice among legal theorists; he does legal theory that is high level, abstract, and interesting, but from a distinctively “legal” perspective—bucking the trend towards interdisciplinarity that dominates the American legal academy. I find Twining’s work to be stimulating and refreshing, so I am looking forward to this talk.
Twining begins. His aim, he says, is to revive a “general jurisprudence” for a globalized society. Anglo-American jurisprudence, he suggests, has been “parochial.” But his perspective is itself parochial—reflecting his own immersion in the Angle-American tradition. Jurisprudence is theorizing about the law that is ideological in the nonpejorative sense—linking views about law to the rest of our views about the world. Jurisprudence has a crucial role in the development of law as a healthy discipline. The heritage of Anglo American jurisprudence is parochial in three ways: 1) it has been done within the western legal tradition, 2) it is focused almost exclusively on state law and ignores other forms of law, including religious and transnational systems of legal ordering, and 3) the agenda of Anglo-American jurisprudence is quite limited, ignoring many important issues. The central argument of the paper is that law is becoming more cosmopolitan and jurisprudence needs to face this.
Globalization challenges some of the basic assumptions of contemporary Anglo-American jurisprudence. Twining says he teaches a course on globalization, and in his course, he bans the “G-words,” references to global and globalization, unless the words are justified and defined clearly. He does this because there is a tendency to overuse the word globalization, and to ignore the difference between truly global phenomena and other transnational spheres. Much of transnational law is not global. The global perspective can actually encourage bad theorizing, that seeks to universal phenomena that are actually not universal. He suggests that although theories like Brian Tamanaha’s are valuable, there is a need for more data-driven.
General jurisprudence has a number of different meanings. Twining’s list includes, for example, general as “universal” and general as “abstract.” So if we talk about general jurisprudence, we need to be clear about what we mean. A central issue of a general jurisprudence should be: how useful is it to generalize across different legal cultures. Generality and particularity are relative. A general jurisprudence need not be a “universal” jurisprudence.
Jurisprudence, legal theory, and socio-legal studies have similar but not identical meanings. Some questions, e.g., theories of justice, belong to philosophy of law. Other questions, e.g. the difference between questions of law and fact, are not topics on which philosophers have any special expertise. Twining then discusses the tendency to assimilate jurisprudence and philosophy of law. Brian Leiter, for example, argued that no American legal theorist (Holmes, Pound, etc.) has made a significant contribution to philosophy. Twining maintains that not all of the issues that are important to legal theory are philosophically interesting. The revival of contact between analytic philosophy and jurisprudence inaugurated by H.L.A. Hart has had important beneficial effects. But there has been a growing sense of dissatisfaction with philosophy of law. Two common complaints: (1) legal philosophy has become too detached from legal practice, and (2) legal philosophy is too narrow.
Charges of narrowness can mean several different things. One point is that legal philosophy has been isolated from socio-legal studies and ignored the realist turn to looking at law in action. The method of conceptual analysis, nonetheless, can be useful to socio-legal studies.
Many have argued that legal doctrine needs to be understood in context. Socio-legal studies and analytic jurisprudence have been mutually antagonistic, but recently there are signs of reconciliation. Brian Tamanaha’s use of Hart has been especially important in this regard.
Recently, there have been arguments in favor of a broad conception of law that includes non-state law. This goes beyond the assumption that there are only two kinds of law: municipal and international. The picture of law that focuses only on these two kinds of law is too narrow—it omits religious law, like Islamic Law, for example. Yet these forms of law are important to understanding law in a global context.
Several serious thinkers, including Tamanaha and Glenn, have made the case for taking non-state law seriously. Twining’s paper discusses this in more detail, but he says he will omit those arguments from his oral presentation.
The central point of taking non-state law into account is that they are crucial for understanding legal phenomenon. He suggests that a “master plan” is not appropriate, but he does offer some examples of what a cosmopolitan theory might be like.
Dennis Patterson asks a question: If you believe that the business of philosophy is defining the necessary and sufficient conditions for the application of concepts, then philosophy is the master discipline and there is no room for sociology. But if you believe that metaphysics and conceptual analysis are dead (along the lines suggested by Brian Leiter), then there is no room for philosophy. Is there any middle ground? Twining expresses some skepticism about Leiter’s Quinean naturalism and suggests that Nicola’s Lacey’s work offers a better model. Lacey suggests that questions like judge’s conceptions of their role, modes of institutionalization, and so forth must be taken into account. Twining suggests that he is after a middle ground, but that he does not need a controversial philosophical theory to get it.
The questions continue, but I am not putting down my pen—or rather, powering down my laptop for now! It was a provocative session that I very much enjoyed.


Thursday, May 26, 2005
 
Formalism and Systems Theory Check out A Defense of Formalism from a Systems Theory Point of View over at Law and Society Weblog. Here´s a taste:
    Legal systems are self-referential and self-replicating systems of communication. (Some writers have referred to such systems as autopoietic, but that term carries too much unnecessary baggage for my taste.) In other words, the elements of a legal system produce the elements of a legal system that produce the elements of a legal system, ad infinitum. In this sense, legal systems are closed. They contain nothing and consist of nothing but legal communication. Everything else, including judges, lawyers, courthouses, jails, minds, brains, the world at large, is emphatically not part of the legal system. That is not to say that the legal system could exist without its environment, of course it couldn't. But the legal system and its environment do not merge. Explaining a legal decision as caused by its environment is similar to explaining thoughts (or other mental states) as caused by the brain. While the mind is structurally coupled to the brain, both operate independently and at no point do their operations merge.


 
New from Law & Politics Book Review
    ACCESS TO JUSTICE, by Deborah L. Rhode. New York: Oxford University Press, 2004. 265pp. Hardback. £18.50 / $29.95. ISBN: 0-19-514347-7. Reviewed by John Michael Eden and John Paul Ryan.
    CATASTROPHE: RISK AND RESPONSE, by Richard A. Posner. New York; Oxford University Press, 2004. 336pp. Hardback. £16.99/$28.00. ISBN: 0-19-517813-0. Reviewed by Stephen Meinhold.
    HOW LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS, by Jean Stefancic and Richard Delgado. Durham: Duke University Press, 2005. 152pp. Cloth. $69.95. ISBN: 0-8223-3454-2. Paper. $19.95. ISBN: 0-8223-3563-8. Reviewed by Patrick Schmidt.
    THE SUPREME COURT: A CONCISE HISTORY, by Robert W. Langran. New York: Peter Lang, 2004. 149pp. Cloth. €56.00 / £40.00 / $55.95. ISBN: 0-8204-7109-7. Paper. €23.00 / £17.00 / $22.95. ISBN: 0-8204-6162-8. Reviewed by Samuel B. Hoff.
    SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES, by Michael Comiskey. Lawrence: University Press of Kansas, 2004. 256pp. Cloth. $40.00. ISBN: 0-7006-1346-3. Paper. $17.95. ISBN: 0-7006-1347-1. Reviewed by Kevin J. McMahon.


 
Book Announcement: Straightforward by Ayres & Brown
    Straightforward: How to Mobilize Heterosexual Support for Gay Rights Ian Ayres and Jennifer Gerarda Brown To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/7928.html What can straight people do to support gay rights? How much work or sacrifice must allies take on to do their share? Ian Ayres and Jennifer Brown--law professors, activists, husband and wife--propose practical strategies for helping straight men and women advocate for and with the gay community. Cloth | $24.95 / £15.95 | ISBN: 0-691-12134-6


 
Journal Announcement: New Issue of Theoretical Inquiries in Law
    THEORETICAL INQUIRIES IN LAW is pleased to announce the release of its new issue, Volume 6(2), "Liberty, Equality, Security". You may not be aware that your institution subscribes to this journal, providing you with direct access to these and all past articles. To view papers in this issue, click on links below; full citations and abstracts follow. Visit http://www.bepress.com/crisis.html to learn about the Scholarly Communication Crisis and what The Berkeley Electronic Press is doing to help. Zohar Goshen "Conflicts of Interest in Publicly-Traded and Closely-Held Corporations: A Comparative and Economic Analysis". http://www.bepress.com/til/default/vol6/iss2/art1 Yoshiro Miwa and J. Mark Ramseyer "Conflicts of Interest in Japanese Insolvencies: The Problem of Bank Rescues". http://www.bepress.com/til/default/vol6/iss2/art2 David Gilo "The Problem of Bank Rescues: A Comment on Miwa and Ramseyer". http://www.bepress.com/til/default/vol6/iss2/art3 Edward L. Rubin "Images of Organizations and Consequences of Regulation". http://www.bepress.com/til/default/vol6/iss2/art4 Sharon Hannes "Images of Organizations and Interfirm Externalities: A Comment on Rubin". http://www.bepress.com/til/default/vol6/iss2/art5 Richard C. Nolan "The Legal Control of Directors' Conflicts of Interest in the United Kingdom: Non-Executive Directors Following the Higgs Report". http://www.bepress.com/til/default/vol6/iss2/art6 Fabrizio Cafaggi "Organizational Loyalties and Models of Firms: Governance Design and Standard of Duties". http://www.bepress.com/til/default/vol6/iss2/art7 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. THEORETICAL INQUIRIES IN LAW ranks in the top 5 for citations and impact in Jurisprudence and Legal Theory according to Washington & Lee Law School's Most Cited Legal Periodicals rankings.


 
Tom Bell on the US News Rankings Tom Bell has reverse engineered the U.S. News & World Report ranking system. Take a look at this post and this one.


Wednesday, May 25, 2005
 
More on Formalism and Instrumentalism Check out this post at Law and Society Blog. Here´s a taste:
    In my opinion, the debate between formalism and instrumentalism can fruitfully be recast as the distinction between first and second order observations. The first order observer must by definition assume the normative relevance of the law. From an internal point of view, questions of indeterminacy will appear as issues of construction or interpretation and will be dealt with the tools provided by and immanent to the law. The second order observer, in contrast, has no built-in normative commitment. He or she looks at the law as text, literature, economic phenomenon, sediment of a power struggle, social institution, etc. In most instances, observing the first order observer (and the fact of his or normative commitment) is also a significant part of second order observation. (Strictly speaking, a second order observation is defined as observing another observer. For example, a sociologist observing a judge. But second order observation, at least in my view, is not limited to only observing observers.)


 
Blogging from Granada, Part Two The second speaker is David Held, whose lecture is entitled, “Principles of Cosmopolitan Order.” He begins with the usual words of appreciation. He then says that he will defend radical democratic cosmopolitanism, Habermas in the middle, and skeptical Westphalianism. Held says that his recent work has focused on globalization, and he now will talk about the principles underlying cosmopolitanism. He says cosmopolitanism is concerned with the “ethical, cultural, and legal basis” of political order in a world in which nation states are still important, but not exclusively. The are not ontologically privileged. States can be judges by their success or failure. States have failed spectacularly.
Held then discusses the Stoic and Kantian roots of cosmopolitanism. The Stoics referred to themselves as “cosmopolitan.” Stoics sought to replace the polis with the cosmos. Humans live both in a local community and a wider community of ideals and aspirations. The second account of cosmopolitanism is found in the Kant’s writings. Kant believed that enlightenment required the free use of public reason and that a right of participation in a cosmopolitan order is required by the idea of unrestrained dialogue.
Held then outlines eight principles of cosmopolitanism:
    1. equal worth and dignity,
    2. active agency,
    3. personal responsibility and accountability,
    4. consent,
    5. collective decision-making about public matters through voting procedures,
    6. inclusiveness and subsidiarity,
    7. avoidance of serious harm,
    8. sustainability.
These principles are interrelated and form a cosmopolitan view. They fall into three clusters. The first cluster, principles one through three, deals with individuals as the subject of moral concern and are responsible for their actions. The second cluster—four to six—form the basis for translation into collective action. The third cluster—seven and eight—provide a basis for prioritization.
Can a bridge be built between individual will and the general will? Cosmopolitan political philosophy does not deny the significance of diversity or the impossibility of unanimity. Cosmopolitanism takes difference seriously & talks about how it can be accommodated.
Held then discusses thick and thin cosmopolitanism. The thick version requires equal concern for all. The thin version limits the scope of equal concern to certain issues. The meaning of the eight principles needs to be worked out. Held calls his perspective “layered.” This approach builds on principles that all might agree to. We start with ideas like equal respect, but specify their meaning through national and transnational public debate.
Where do the principles come from? How are they justified? They are not self-justified. We should distinguish the origins and their justification. The principles are dependent on two metaprinciples: (1) autonomy and (2) impartialist reasoning. Autonomy is at the core—a political, not metaphysical idea, in Rawls’s sense. It builds on the idea of the citizen as a free and equal person. Autonomy is the core of the idea of democratic citizenship and the basis for the idea of consent and self-determination. The meta principle of autonomy is the basis of the first seven principles. The language of autonomy generates a commitment to the idea that all persons should be equally free—with equal liberty to pursue interests without undue interference. There are certain languages the nurture equality dignity and others that seek to ignore it.
Testing the generalizability of claims and interests involves “reasoning from the point of view of others.” The impartiality thesis says that the court of appeal for judging moral standards is one of which no particular individual or group has special standards. A number of particular tests can be used. Are all points of view considered? Would the outcome be accepted irrespective of social position? This does not result in a simple deductive proof. Rather it is a heuristic for testing candidate principles of morality. The tests are concerned with “reasonable rejectability”—always testable in dialogue.
Impartialist reasoning is a basis for disclosing non-generalizable principles. Principles of deception or coercion cannot meet the test of impartiality.
Impartialist reasoning has a decisive critical role. Something more positive can be set out. It can be argued that individual collective social arrangements that generate serious harm—unmet needs—cannot be justified impartially.
Together autonomy and impartialist reasoning provide the grounds of cosmopolitan thought. The first gives us the individual as the subject of cosmopolitan concern. It provides us reasons to help establish agreement on reasonable terms. The second abstracts from power relationships to disclose the conditions of just cooperation.
Cosmopolitan law refers to a domain of law different in kind from the law of states. Kant interpreted it as the basis for articulating the equality of persons in a universal community. Kant’s right to be heard in dialogue is power. Held understands it more broadly. Cosmopolitan law entrenches the eight principles. If they were entrenched as the basis of cosmopolitan law, the conditions of the cosmopolitan regulation of public life could be set down.
We have taken some steps, e.g. the UN declaration, but this is currently weak. The post-45 world order is at stake again, in the rise of the hegemonic project. That project, says Held, is both illegitimate and a failure. Held argues that “realism” is the new fantasy. Realism does not take into account interdependence. Cosmopolitanism is the new realism—the practical way to address the new global problems.
Current practice suggests a model for global citizenship. Individuals can be citizens of local, national, and regional associations—e.g., citizen of Scotland, the UK, and the EU. This points towards the state “withering away.” In a world of overlapping communities of fate, individuals would be citizens of local communities and regional and global networks. This would embrace the diverse forms of power and authority that already transcend national borders. Cosmopolitanism is the basis in political philosophy for living in a global age.
Held was remarkably clear and lucid—an excellent talk.


 
Blogging from Granada, Part One It’s Monday morning in Granada, Spain. I’m sitting through the tradition opening ceremonies of the World Congress for the Philosophy of Law and Social Philosophy—the biannual meeting of IVR and, for better or worse, the only real worldwide forum for high legal theory and legal philosophy.
The first substantive speaker this morning will be Jürgen Habermas—the great German political philosopher and social theorist. I first encountered Habermas’s work as a student in the 70s: I remember devouring several of his early books—thirty years later I still can do a fair job or recapitulating the arguments of Legitimation Crisis & Knowledge and Human Interest—and when I was a law student I wrote a paper for Gunter Frankenberg that developed a theory of the freedom of expression from Habermas’s Theory of Communicative Action. In the 1990s, Habermas became intensely interested in legal theory—writing a largish volume on legal theory. Today, Habermas’s topic is “The Kantian Project of the Constitutionalization of International Law, Does it Still Have a Chance?”.
The speeches have come to an end—finally!
Jürgen Habermas takes the stage. I’ve seen Habermas speak only a few times, at Harvard University when he visited Rawls’s political philosophy seminar in the early 80s, at a world Congress in Bologna a few years ago, and most recently at the University of San Diego, where Habermas gave a lecture as part of the Kyoto Prize activities. Habermas is a notoriously difficult speaker to understand—he has a mild speech impediment and, although the substance of his English is superb, his delivery is not entirely fluent. Despite this, Habermas has a commanding presence—won through the force of intellect and ideas—and audiences are always transfixed even if they are also perplexed. As always, these are just my notes—which record my impressions and not the actual text of Habermas’s talk.
He begins by briefly reviewing the history of the United Nations and then mentions the recent efforts to reform the UN. Then Habermas turns to Kant and introduces Kant’s idea of a ‘cosmopolitan condition’ which Habermas identifies as a step beyond international law, which is concerned only with nation-states. Kant conceived of a choice between “world republic” or “commonwealth of nations.” That is, Kant thought there were only two alternatives for international order—nation states with minimal international law or world government. (Habermas is going to try to show that there is a third way—involving international order that is more substantial than that posited by Westphalian realism but short of world government.) Habermas turns to the modern ideas that allow us to see that Kant’s two choices are not the only ones. We can now see the assumptions that underlay his conception of the choice. First, we now have the idea of federalism or “divided sovereignty.” Second, whereas Kant thought of a constitute as creating a government, we now have an alternative idea—a constitution that is not solely the constitution of a state. A constitution that constrains an existing state, breaking the link between a state and democratic citizenship. Third, Kant may also have based the dualism of “world republic” and “league of nations” on the improbability of a constitutional revolution. We see constitutionalization as a long term process, in which constitutional regulation emerges gradually in stages or degrees.
Habermas summarizes the three ideas: (1) federalism, (2) the new idea of a regulatory constitution, and (3) the idea of gradual constitutionalization implemented by governments rather than a popular revolutions.
Habermas then turns to a discussion of the means by which a new international constitutional order might emerge, discussing among other topics, the idea of constitutional law made at a supernational level—the EU provides a model of how this can work. States can act as “members of international organizations” and not just as the free agents of the realist theory of international order. The nation-state system recognized only one kind of entity (the “nation state”) with two kinds of policy—foreign and domestic. There are now supernational entities, such as the UN, with power to act in well-defined fields, i.e. securing peace and protecting human rights. New mechanisms for the coordination of nation states and NGOs are also emerging to do with particular issues—trade, the environment, international finance, etc. These arrangements, however, do not provide a framework for “international will formation” or the mechanism for the enforcement of international norms. With the exception of the United States, there are no viable actors to enforce such norms.
Historically, Habermas argues that with the process of decolonization, an international community of nation states arose. National states are comparatively young (on a world wide basis), and they are currently the most powerful actors in the international sphere. Nation states form regional alliances and engage in international cooperation, but these are comparatively weak. The EU has achieved the status of “laying claim” of growing into the role of global actor. But the EU will only do this if it achieves political integration that will enable it to claim democratic legitimacy.
Habermas then turns to the idea of the legitimation deficit. As international actors do more, they outgrown their sources of democratic legitimacy. Even if the UN does reform itself, this will not create the kind of connection between the UN and the nation state that would confer legitimacy. Ever since the development of international law has followed the logic of human rights, the emergence of international legal order has been more legal than political. The protection of human rights through fair procedures can be legitimate.
The neoliberal response to these problems is to see democratic legitimacy as the wrong model. Rather, legitimacy is provided by the excellence of the decision making process. The legitimacy of the international system of markets and states is presumed. This neoliberal approach has not met with democratic consensus. The shift from political mechanisms to market mechanisms would rob future generations of the ability to change these decisions.
I’ve only captured a small fraction of Habermas’s lecture (which, as usual, was a bit difficult to follow. Hopefully, we will get a published version!


Tuesday, May 24, 2005
 
Lawson on the Deans Check out Gary Lawson´s guest post, Deans and Judicial Independence, on the Right Coast. Here´s a taste:
    On May 10, 2005, a gaggle of law deans sent a letter to Congress complaining about criticism of the judiciary. In particular, the deans were hot and bothered by intimations that judges might suffer consequences, and perhaps even impeachment proceedings, as a result of their decisions. The letter’s conclusion regarding the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” The letter’s argument in support of this conclusion about the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” No, wait -- that was the conclusion. No, wait -- that was the argument. No, wait -- that was the conclusion . . . .


 
Some Prelinary Thoughts on the ¨Nuclear Option¨ Compromise I´m blogging from an Internet Cafe in Granada, Spain, and just got the news about the Senate´s compromise on the Nuclear Option. I have a few preliminary thoughts. First, one effect of the compromise is to increase the power of a few moderate Republicans over the next Supreme Court nomination. Why is this true, given the fact that the number of votes required for confirmation, 51, is the same as the number of votes required to confirm, also 51? My guess is that the political costs of voting against the nuclear option are different from the costs of voting against a nominee. The former vote is fuzzier and plays better with the majority of voters; the latter vote is clear and is suicide with the Republican base. Second, the compromise reflects the discomfort of many Senators with changes in the norms of the Senate. I think two norms were in play. One norm disfavored ¨veto filibusters¨ of judicial nominees: a veto filibuster is a filibuster through the end of the term that kills a nomination. The second norm was that the rules themselves should only be changed in conformity with the rules. Although some versions of the nuclear option were rule compliant, the specific version being advocated would have involved a rule change that would have required the nuclear option in order to pass. That would have been unprecedented. That´s about all I´m capable of with severe jetlag and two classes of very fine spanish wine!


 
Conference Announcement: ECAP
    If you would like to attend ECAP 5 please register before the 1st of June. ECAP 5: Fifth European Congress for Analytic Philosophy 27-31 August 2005, Faculdade de Letras, Universidade de Lisboa http://www.centrofilosofia.org/ecap5 Please check the congress website for details about registration and accommodation. ECAP-congresses are organized every three years by the European Society for Analytic Philosophy, ESAP. The Society organizes these congresses to further contacts and collaboration amongst European analytic philosophers. João Branquinho Department of Philosophy Faculdade de Letras de Lisboa Alameda da Universidade 1600-214 Lisboa Portugal jbranquinho@netcabo.pt jbranquinho@fl.ul.pt URL http://pwp.netcabo.pt/QED


 
Conference Announcement: Political Studies in Belfarst
    Political Studies Association of Ireland (PSAI) Annual Conference 2005 21 to 23 October 2005 Belfast, United Kingdom We encourage papers on a wide range of topics, including but not limited to, the politics of the Republic of Ireland and Northern Ireland. Panels will include: Elections and voting in Northern Ireland Elections and voting in the Republic of Ireland Psychological models of political behaviour Right wing political parties The impact of the EU on Irish politics Ireland and the international world Developments in political theory Multiculturalism and minority rights Habermas, democracy and participation Public policy and politics Corruption and scandals in politics Ireland and the international world The influence of the media on political life Enquiries: j.garry@qub.ac.uk Web address: http://www.qub.ac.uk/pais/NewsEvents/SchoolEvents/


 
Conference Reminder: Society for Applied Philosophy at Oxford
    Registration is closing soon for the: Society for Applied Philosophy: International Congress 2005 Applied Philosophy 25 Years On: Problems and Prospects St Anne's College, Oxford 1 - 3 July Keynote Speakers: Allen Buchanan (Duke) Rethinking Ethics Hubert L. Dreyfus (Berkeley) The Current Relevance of Kierkegaard's Critique of the Public Sphere Frances Myrna Kamm (Harvard) Just War Jeff McMahan (Rutgers) Infanticide Alan Wertheimer (Vermont) Exploitation in Clinical Research Will Barrett (University of Melbourne) The Moral Basis of Public Policy on Gambling Presidential Address: Baroness Onora O'Neill M.A., Ph.D. (Harvard), C.B.E., F.B.A., FMedSci (Newnham College Cambridge) Informed Consent and Genetic Data Registration Deadline: Friday 3rd June 05 (limited availability) Conference Website: http://www.appliedphil.org/intcongress.shtml ___________________________ Jon Cameron Society for Applied Philosophy Department of Philosophy University of Aberdeen AB24 3UB Email: admin@appliedphil.org Web: http://www.appliedphil.org


Monday, May 23, 2005
 
Tamanaha on Legal Instrumentalism Brian Z. Tamanaha (St. John's University - School of Law) has posted The Perils of Pervasive Legal Instrumentalism (Montesquieu Lecture Series, Tilburg University, Vol. 1, 2005) on SSRN. Here is the abstract:
    In contemporary U.S. legal culture, the law is widely seen as an instrument to serve ends. Many legal theories construe law in instrumental terms (law is an instrument to maximize wealth, law is an instrument of male patriarchy, etc.). Law professors indoctrinate students to reason instrumentally using legal rules and policy arguments. Practicing lawyers manipulate legal rules and processes instrumentally when serving clients. Cause lawyers use litigation as an instrument to bring about social change. Judges increasingly engage in instrumental analysis when deciding cases. Judicial appointments are viewed instrumentally by groups within society dedicated to seating like-minded judges who will render decisions consistent with their preferred ends. Legislation and administrative regulations are seen as empty vessels that can be filled in and applied to achieve whatever ends might be desired. A law that is seen in purely instrumental terms has no integrity onto itself. It is simply a tool - a powerful tool - to be used in pursuit of the tasks or goals at hand. So pervasive is an instrumental view of law today that we seldom recognize that it is relatively new - having become entrenched in the course of the late 19th and 20th Centuries - and we have forgotten how radically different it is from previous understandings of law. In a real sense, we have embarked upon a social experiment of the greatest magnitude, with no predecessors to offer guidance or to warn of pitfalls. There are now plentiful signs that this experiment may be ill-fated. The core thesis of this essay is this: if the law is viewed in instrumental terms in a context of sharp disagreement over the social good, what will follow is a Hobbsean war of all against all that takes place within the legal order over control of the legal apparatus. Opposing groups within society will attempt to seize or co-opt the law in every context possible, and in every way possible, to enlist or wield it on behalf of achieving the ends they desire. Even those groups that might prefer to abstain from seizing the law are forced nevertheless to engage in the contest, if only defensively to keep it out of the hands of their less restrained opponents. Spiraling conflicts will ensue with no evident halting point or termination (short of exhaustion of resources or total victory by one side). This essay, a written version of the inaugural Montesquieu Lecture delivered at the University of Tilburg, liberally mixes intellectual history and rational reconstruction to demonstrate this thesis. The first half of the essay is a historical exploration that begins with non-instrumental views of law and traces the emergence of instrumental views of law; the second half provides a brief survey of contemporary legal instrumentalism in several of the areas set forth above, offering examples and drawing out worrisome implications.
Highly recommended!


 
Maroney on a Taxonomy of Law and Emotion Terry A. Maroney (NYU) has posted Law and Emotion: A Proposed Taxonomy of an Emerging Field (Law and Human Behavior, 2006) on SSRN. Here is the abstract:
    Many scholars - from fields as diverse as psychology, law, philosophy, and neuroscience - have begun to study the intersection of emotion and law. I describe that scholarship's development; propose that it is organized along six interrelated but theoretically distinct foci; and suggest directions for future research. The notion that reason and emotion are cleanly separable - and that law admits only of the former - is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal relevance is deserving of close scrutiny. It is organized around the following six approaches: Emotion-centered: Analyze how a particular emotion is, could be, or should be reflected in law. Emotional phenomenon: Describe a mechanism by which emotion is experienced, processed, or expressed, and analyze how that phenomenon is, could be, or should be reflected in law. Emotion theory: Adopt a particular theory (or theories) of the emotions and analyze how that theory is, could be, or should be reflected in law. Legal doctrine: Analyze how emotion is, could be, or should be reflected in a particular area of legal doctrine. Theory of law: Analyze the theories of emotion embedded or reflected within a theoretical approach to the law. Legal actor: Examine how a legal actor's performance of her function is, could be, or should be influenced by emotion. Any given study within the law-and-emotion rubric will have its primary grounding in at least one of these approaches, but should strive to attend to each. Thus, it should identify which emotion(s) it takes as its focus; distinguish between those emotions and implicated emotion-driven phenomena; explore relevant and competing theories of those emotions' origin, purpose, or functioning; limit itself to a particular type of legal doctrine or legal determination; expose any underlying theories of law; and make clear which legal actors are implicated. Directions for future research include greater attention to: non-criminal law; positive emotions; a wider variety of emotion theories and theories of law; and a broader range of legal actors. Cross-disciplinary collaboration will be particularly useful in this endeavor.


 
Balkin on Lochner Jack Balkin has posted Wrong the Day it Was Decided: Lochner and Constitutional Historicism (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
    Until quite recently Lochner v. New York and Plessy v. Ferguson were canonical examples of how courts should not decide constitutional questions -- both were generally considered not only wrong, but wrong the day they were decided. Although Plessy remains anti-canonical in this sense, for an increasing number of legal thinkers, Lochner no longer does. This essay, written for the 100th anniversary of Lochner v. New York, explains why Lochner's canonical status has altered, and how changing views of Lochner are connected to (or driven by) contemporary theories of legitimate constitutional change. It also explores the connections between contemporary attitudes about Lochner and constitutional ethos-the stories that Americans tell each other about who we are, where we have come from, and what we stand for. In analyzing these questions, the essay employs an approach called constitutional historicism, which holds that the conventions determining what is a good or bad legal argument about the Constitution, what is a plausible legal claim and what is off-the-wall, change over time in response to changing social, political, and historical conditions. The essay concludes by considering to what extent constitutional historicism might help constitutional theory.
Everything by Balkin is worth a read!


Sunday, May 22, 2005
 
The Calendar & Conference Blogging I'm on my way to the XXII World Congress of Philosophy of Law and Social Philosophy--link here. The calendar will be very spotty this week--the North American workshop season is mostly over. I will make sure to get up a post on the Oxford Jurisprudence Discussion Group and I will be blogging from the World Congress. There will be a fairly long delay between this post and the next one--sometime on Monday when I arrive in London.
If you are regular reader of the Legal Theory Lexicon, there will be a new series of entries--starting with today's entry on Formalism and Instrumentalism (see immediately below) and continuing throughout the Summer.
See you in Granda!


 
Legal Theory Lexicon: Formalism and Instrumentalism
    Introduction American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced. Many law students hunger for “black letter law,” for legal rules that can be applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.
    In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.
    But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.
    In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.
    Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following
      Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.
    In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.
    We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:
    • Judges should apply the law and not make it.

    • There are legal rules that constrain what legal actors may lawfully do.

    • There is a difference between following the law and doing what you think is best.

    • Judges should decide cases in accord with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents.
    This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:
      1. The law consists of rules.
      2. Legal rules can be meaningful.
      3. Legal rules can be applied to particular facts.
      4. Some actions accord with meaningful legal rules; other actions do not.
      5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.
    Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.
    Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.
    The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.
    The Modern Revival of Legal Formalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.
    Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.
    Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.
    Related Entries


Saturday, May 21, 2005
 
Lipshaw on Solum on Siegel Jeff Lipshaw has some interesting responses to my comments on The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel (which is the Download of the Week--see below). I've added them to the original post, either click here or scroll down to Thursday, May 19.


 
Paul Ricoeur The great French philosopher, Paul Ricoeur, has died at the age of 92. For a wonderful picture, visit this website. In the late 70s, I studied with Guy Wauthy, a former student of Ricoeur's and came to have an appreciation for this humane and interesting thinker. Here is a news report--I'm sure more will follow. Here's a brief excerpt:
    French philosopher Paul Ricoeur, a greatly influential thinker on both sides of the Atlantic, has died at the age of 92, his friend and fellow philosopher Olivier Abel said on Saturday. * * * In France, he held positions at the Sorbonne University in Paris and during the 1960s at the newly-founded University of Nanterre, where he was criticized as an ally of the government during the student protests of that decade. In 1967, he left France for the United States where he would teach at the University of Chicago for 15 years, as well as at Yale and Columbia. His cross-cultural career led to two of his most enduring works: "The Rule of Metaphor" and the three volume "Time and Narrative." Ricoeur is also known for his two volumes on the philosophy of the will entitled "Freedom and Nature: The Voluntary and the Involuntary."


 
Legal Theory Bookworm The Legal Theory Bookworm recommends Supreme Court Decision-Making: New Institutionalist Approaches edited by Cornell W. Clayton & Howard Gillman. Here is a blurb:
    What influences decisions of the U.S. Supreme Court? For decades social scientists focused on the ideology of individual justices. Supreme Court Decision Making moves beyond this focus by exploring how justices are influenced by the distinctive features of courts as institutions and their place in the political system. Drawing on interpretive-historical institutionalism as well as rational choice theory, a group of leading scholars consider such factors as the influence of jurisprudence, the unique characteristics of supreme courts, the dynamics of coalition building, and the effects of social movements. The volume's distinguished contributors and broad range make it essential reading for those interested either in the Supreme Court or the nature of institutional politics. Original essays contributed by Lawrence Baum, Paul Brace, Elizabeth Bussiere, Cornell Clayton, Sue Davis, Charles Epp, Lee Epstein, Howard Gillman, Melinda Gann Hall, Ronald Kahn, Jack Knight, Forrest Maltzman, David O'Brien, Jeffrey Segal, Charles Sheldon, James Spriggs II, and Paul Wahlbeck.
And you might also look at The Supreme Court in American Politics: New Institutionalist Interpretations, also edited by Clayton & Gillan.


 
Download of the Week The Download of the Week is The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel. Here is the abstract:
    The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on both counts. This Article first demonstrates that numerous cases have applied what the Article calls the polymorphic principle that a single phrase in a single statutory provision may have multiple meanings. The Article then uses this question as a window into larger issues of statutory construction and the proper judicial role in our system of government. The article suggests that Martinez cannot be understood independently of its author, Justice Scalia. The case represents a stage in his long-term campaign to limit judicial choice. The article attempts to show that a mechanical view of the judicial role is inappropriate. The Constitution permits the degree of judicial choice necessary to implement the polymorphic principle. Moreover, Justice Scalia's rule does not eliminate judicial choice but only gives the illusion of doing so. Indeed, it has the ironic effect of magnifying the judicial role in statutory interpretation. For these reasons, the Article advocates that courts continue to exercise their appropriate role of making judicious choices in statutory interpretation, a role that will involve continued use of the polymorphic principle in appropriate cases.
Download it while its hot!


Friday, May 20, 2005
 
Friday Calendar
    Oxford Globalisation & Sustainable Development Law Group, Sustainable Development Law Lectures: Prof. Myron Frankman (Canada): “In the Spirit of Keynes: A Unitary Approach to Sustainable Development”.


 
Lawrence on the Freedom of Autonomy Michael Anthony Lawrence (Michigan State University College of Law) has posted Reviving a Natural Right: The Freedom of Autonomy Amendment on SSRN. Here is the abstract:
    America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman's right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack. Whatever became of the ideal that represented the very foundation of the Founders' and Framers' political theory - "free[ing] the individual from the oppressive misuse of power, [and] from the tyranny of the state?" How can it be that Tocqueville's warning of a "wholly new species of oppression…, [where] the democratic government, acting in response to the will of the majority, … create[s] a society with a network of … [rules] that none can escape," has indeed come to pass in modern-day America? This essay explores the historical foundations of the individual right of equality and free choice on matters of natural private concern (collectively,"freedom of autonomy") in America, looks at several present-day applications, and concludes that nothing short of a constitutional amendment will suffice to revive this most basic right from an overbearing government. Now is the time for change in America.


 
Conkle on Indirect Funding & Establishment Daniel O. Conkle (Indiana University School of Law) has posted Indirect Funding and the Establishment Clause: Rehnquist's Triumphant Vision of Neutrality and Private Choice (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press) on SSRN. Here is the abstract:
    In a series of majority opinions over the course of his career on the Supreme Court, Chief Justice Rehnquist has successfully championed a relaxed approach to the Establishment Clause in the context of voucher programs and other types of "indirect" funding. Under this approach, "neutral" programs of "private choice" are virtually immune from constitutional challenge. This paper explains how Rehnquist has achieved this result even though a solid majority of the Court rejects his general approach to the Establishment Clause. Rehnquist's general approach to the Establishment Clause would give the states broad leeway to deal with religion as they see fit. That view has not prevailed. But Rehnquist has secured the support of a narrow majority for a relaxed and deferential approach in the context of indirect funding. He has done so by crafting opinions that bracket his distinctive general approach to the Establishment Clause and that work within the framework of prevailing Establishment Clause tests and values. Through his success in this context, Rehnquist has partially achieved his broader goal, a limited reading of the Establishment Clause. At the same time, he also has furthered his overarching constitutional vision: reading the Bill of Rights narrowly and thereby enhancing the power and discretion of the states. This paper will be published as a chapter in The Rehnquist Legacy, a book recounting and analyzing Rehnquist's jurisprudence in a variety of substantive areas.


 
Duff on Property & Tax in a Libertarian World David G. Duff (University of Toronto - Faculty of Law) has posted Private Property and Tax Policy in a Libertarian World: A Critical Review (Canadian Journal of Law and Jurisprudence, Vol. 18, pp. 23-45, 2005) on SSRN. Here is the abstract:
    The idea that taxes involve the confiscation of private property is widely held in popular thinking and scholarly writing. This article challenges the libertarian foundations of this assumption by critically examining libertarian theories of private property and their implications for tax policy. Part II summarizes the leading libertarian theories of private property, reviewing John Locke’s argument in the Second Treatise of Government and Robert Nozick’s account in Anarchy, State, and Utopia. Part III examines the implications of these libertarian theories for tax policy, considering libertarian prescriptions for substantive tax measures as well as institutional arrangements that affect tax policy outcomes. Part IV criticizes libertarian theories of private property, casting doubt on tax thinking that relies on these libertarian foundations. Part V considers the implications of this critique for tax policy and tax scholarship.


 
Journal Announcement: Special Issue of the Loyola University Chicago Law Journal on Justice


Thursday, May 19, 2005
 
Thursday Calendar
    Oxford Faculty of Law Said Business School, & Law and Finance Joint Seminars: Professor Reinier Kraakman, Asset Partitioning and the Law of Business Entities- The Historical Evolution
    Oxford Society for Law and Religion: Dr W. Pickering, Persecution and Genocide- Nature and Definitions.


 
Siegel on Statutory Interpretation, Updated Jonathan Siegel (George Washington) has posted The Polymorphic Principle and the Judicial Role in Statutory Interpretation on SSRN. Here is the abstract:
    The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on both counts. This Article first demonstrates that numerous cases have applied what the Article calls the polymorphic principle that a single phrase in a single statutory provision may have multiple meanings. The Article then uses this question as a window into larger issues of statutory construction and the proper judicial role in our system of government. The article suggests that Martinez cannot be understood independently of its author, Justice Scalia. The case represents a stage in his long-term campaign to limit judicial choice. The article attempts to show that a mechanical view of the judicial role is inappropriate. The Constitution permits the degree of judicial choice necessary to implement the polymorphic principle. Moreover, Justice Scalia's rule does not eliminate judicial choice but only gives the illusion of doing so. Indeed, it has the ironic effect of magnifying the judicial role in statutory interpretation. For these reasons, the Article advocates that courts continue to exercise their appropriate role of making judicious choices in statutory interpretation, a role that will involve continued use of the polymorphic principle in appropriate cases.
This is a very interesting article. I am particularly intrigued by Siegel's framing of the debate--equating formalism with mechanical jurisprudence that eschews the exercise the practical (or "intelligent" judgment). This assumption is, I think, fundamentally incorrect. Neoformalist approaches--including the plain meaning or textualist approach to statutory interpretation--are not (and could not be) mechanical. The application of any general and abstract legal rule to a particular fact situation requires judgment--an intelligent appreciation of the salient characteristics of both the facts tne law. No contemporary formalist who I know believes that judging is mechanical, much less that that judging can proceed without "intelligent judgment." So I am inclined to be sketpical of passages like the following from the conclusion of the article:
    It is an error to believe that the process of statutory interpretation can ever be mechanized or reduced to a set of determinate, nondiscretionary rules. Any attempt to do so is likely to provide only the illusion of objectivity while maintaining the necessity for judicial choice. We should not be ashamed of judicial choice. Appropriately limited judicial choice has been a feature of the judicial power since the beginning, and it plays a vital role in our system of government. Certainly our system allows, and indeed demands, the range of judicial choice necessary to implement the polymorphic principle.
What formalists do believe is that rule application does not require judges to engage their own private judgments about what the law should be. Inevitably, and especially in a pluralist culture like ours, there will be profound disagreements in such private judgments. The point of legal rules is to provide a public standard that can be the basis of intersubjective agreement.
This caveat aside, this is a marvelous piece, and I suggest that you
download it while its hot!
Update: Jeff Lipshaw offers the following comments:
    read with interest your comment on the "Polymorphic Principle" article. It seems to me your caveat is correct, but I would put it a little differently. The article confuses the logic and linguistics of rule application with the point of rule application. A statute's words state a rule; the question is how we apply the rule as interpreters or judges to the facts before us. There are a couple of nice sources on this. One is an article by Linda Meyer at Quinnipiac, Between Reason and Power: Experiencing Legal Truth, 67 U. Cin. L. Rev. 727 (1999). In assessing the process of judgment, she notes: "The key step, the perception of relevance, is not predetermined by the rule. That perception of relevance is driven by a deeper sense of “fit” or “sense of fairness” that is not reducible to rules and remains in the background, expressible only through metaphor or analogy, tangible only in connection with concrete examples. We point to fit or sense, but we cannot give a rule for it." The article's discussion of computer algorithm tries to get to this point, but really proves what Prof. Meyer is saying: the symbol has no inherent meaning. The difference between the computer and the human is the perception of relevance that determines fit to the rule. The other is Dennis Patterson's Law’s Pragmatism: Law as Practice & Narrative, 76 Va. L. Rev. 937 (1990). He argues there is no inconsistency between our inability to induce the application of a rule from the rule itself, and our understanding the point of the rule to be applied in the next case. The philosophy of language says there is nothing inherent in the rule that dictates its application to the next set of facts—we simply apply the rule, we do not interpret it. Nothing stops a judge from considering why she is applying the rule—what reasons for the rule would dictate a conclusion one way or another. Hence, there is a point to the law that can develop from case to case. So what the Court cannot be saying (whether it recognizes it or not) is that linguistically a word must always have the same meaning. What is it saying, I think, is that the point must be applied consist ently from case to case. Finally, it's interesting to note that the article touches on what Wittgenstein calls the family resemblances of words ("ran" the marathon vs. "ran" the company) without reference to either that analysis or it s implication - which is that words take on agreed meanings because we agree they do, not because the word inherently has a single meaning. (I deal with this in the context of contract interpretation in the Bewitchment article coming out in the Temple Law Review this spring.)


 
Leonard on International Human Rights & Sexual Minority Rights Arthur S. Leonard (New York Law School) has posted The Impact of International Human Rights Developments on Sexual Minority Rights (New York Law School Law Review, Vol. 49, No. 2, 2004-2005) on SSRN. Here is the abstract:
    The Supreme Court's decision in Lawrence v. Texas (2003) marked the first time that tribunal took notice of how foreign and international courts were dealing with the civil rights claims of lesbians and gay men as part of its discussion of American constitutional law. If this evinces a new openness by the Court to looking at such external sources in gay rights cases, what would it find on the major legal issues now facing the LGBT community in the United States? This article summarizes developments abroad on legal recognition of same-sex partners (including for purposes of immigration status) and military service that might prove influential in future U.S. Supreme Court consideration of these issues.


 
Ravitch on Religious Objects Frank S. Ravitch (Michigan State University College of Law) has posted Religious Objects as Legal Subjects (Wake Forest Law Review Vol. 40, 2005) on SSRN. Here is the abstract:
    Courts have repeatedly struggled with issues raised when the government displays religious objects and symbols or such objects are displayed by others on government property. Cases have involved objects such as Ten Commandments displays, cr ches (nativity scenes), Latin crosses, menorahs, and Christmas trees. The results in these cases, especially in cases decided by the United States Supreme Court, have been the subject of a great deal of criticism. The criticism has often focused on the desacrilization of religious objects or on the failure to evaluate the impact such objects have on religious outsiders. This article asserts that the courts and those criticizing them have generally overlooked or undervalued the significance of treating religious objects as legal subjects in the first place. Religious objects and religious symbolism generally do not lend themselves well to analysis under any of the legal tests developed by the Supreme Court, but of course, courts do not have the luxury of ignoring issues related to religious symbolism when such issues are appropriately raised by parties. Nor should they. Both the courts and their critics would face an easier and more fruitful task if they more carefully considered the objects addressed in religious symbolism cases. When a court evaluates a case involving religious objects it must subject those objects to the prevailing legal rules, norms, and analysis. It thus makes them legal subjects. This creates interpretive problems because of the potentially varied symbolic meaning of many religious objects and the various messages such objects can hold for various groups. It also raises questions regarding the nature of "religious objects" since many symbolism cases involve objects that courts suggest exude varying levels of religiosity depending on their context, and which some critics suggest may or may not be perceived as religious depending on the perceiver's interpretive presumptions. This article directly confronts these concerns and provides a workable framework for addressing the interpretive difficulties raised when courts must treat religious objects as legal subjects.


 
Cossman on Family Feuds Brenda Cossman (University of Toronto - Faculty of Law) has posted Contesting Conservatisms, Family Feuds and the Privatization of Dependency (American Journal of Gender, Social Policy and the Law, 2005) on SSRN. Here is the abstract:
    The article explores the conflicts between three contesting conservative approaches, namely, social conservatism, fiscal conservatism and libertarian conservatism, in American federal public policy debates over the legal regulation of the family. It begins with an exploration of the theoretical differences between these different visions of the family and the contradictory implications for the regulation of the family in general, and the privatization of dependency in particular. The article then turns to consider three issues in the federal legal regulation of the family as concrete instantiations of these contradictions: child support, welfare reform and same sex marriage. It traces the influence of fiscal conservatism in the 1970s and 1980s, the increasingly influence of social conservatism through the 1990s, and the relative lack of resonance of libertarian conservatism in each of these areas. It argues that greater attention to the conflicts and cleavages between these contesting conservatisms is required in order to more fully grasp the current constellation of federal laws and policies regulating the family.


 
Conference Announcement: Intellectual Property Colloquium
    CONFERENCE ANNOUNCEMENT AND INVITATION Works-in-Progress Intellectual Property Colloquium Washington University School of Law and Saint Louis University School of Law will co-host the 2005 Works-in-Progress Intellectual Property Colloquium on Friday and Saturday, October 7-8, 2005, at the Washington University School of Law. The Colloquium offers an opportunity for intellectual property scholars to present their works-in-progress and get early feedback from their colleagues. All participants are welcome to present, but presentation is not required. To view the program from last year’s colloquium go to: We are in the process of developing a site for this year’s conference and will send a follow-up email once it is available. To register for the Colloquium, please contact Professor Mark McKenna by July 1, 2005 either by e-mail mckennam@slu.edu or by telephone (314)977-3355. If you would like to present a paper at the conference, please include a title and an abstract of your paper with your registration. The Colloquium will be held on the afternoon of Friday, October 7, 2005, and all day on Saturday, October 8, 2005. The Colloquium is free of charge. Participants are responsible for their expenses.


Wednesday, May 18, 2005
 
Foley on the Filibuster and Democracy Check out Ned Foley's short piece, The Filibuster and Democracy, over at Election Law @ Moritz. Here's a taste:
    Thus, whatever the result of the filibuster debate (does the Senate go “nuclear,” or not?), and whomever ends up being confirmed to the Supreme Court as a result of the next few anticipated vacancies, we can expect continued – even increased – interest in assuring the procedural fairness of elections. As long as the content of the Constitution depends upon the identity of individuals who hold public office, then we will care intensely about the procedures for installing those individuals into office. (This point, as we have seen, applies as much to the President and the Senators, given their role in appointing judges, as it does to the judges who themselves interpret the Constitution.) Consequently, issues about voting procedures – registration rules, provisional ballots, recount standards, and the like – won't wither away. Instead, they will magnify in importance. The same point applies to issues of campaign finance, especially if immense personal wealth is increasingly perceived as a prerequisite for admission to the Senate.


 
Hasen on Election Law Reform Check out Rick Hasen's Roll Call piece, Election Reform Isn’t a High Priority Now, But It Should Be.


 
Symposium Announcement: Yale Law Journal Symposium on Executive Power
    The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power March 24-26, 2006 Energy in the executive is a leading character in the definition of good government. --Alexander Hamilton, Federalist No. 70 (1788) For information on submitting a proposal and the Call for Papers, please click here. (PDF file) Executive actions speak louder than words. With the ability to act quickly and to seize the mantle of political accountability, energetic executives have propelled the most significant American legal controversies of recent years. Same-sex marriage licenses, Elliot Spitzer's battles with Wall Street, and recent Justice department interpretations of international torture conventions have trained the public's sights on enterprising executive actors at every level of government. Mayors of small towns, governors asserting their independence from national party politics, and the President share the front page of newspapers because their actions test uncharted waters of legal authority. Contrary to the Framers' expectations, the public now sees the executive as the most accessible, politically accountable force in government at the local, state, and national levels. Media-savvy executives can act swiftly, effectively and symbolically in the name of the people. With legislatures pushed by special interests into partisan gridlock and the courts sensitive to charges of judicial activism, executives have emerged as the most politically responsive and creative forces in government. The iconoclastic governor, the outspoken mayor, the crusading attorney general, and an ambitious President sell their actions to their constituents on the strength of a democratic mandate superior to that of the coordinate branches of government. Moreover, they can do so without the bureaucratic shackles that constrain the other branches of government. Executive actions--as opposed to judicial opinions and legislation--increasingly define what the law is. It is with these developments in mind that The Yale Law Journal announces a Symposium in the spring of 2006 to generate discussion about executive power at all levels of government. What is the source of executive authority? What are its limits? What does Gavin Newsom have in common with George W. Bush? The inquiry transcends traditional political entrenchment. From our foreign wars to our culture wars, from the right, left and middle, executives have seized upon their power to lead the charge. The Journal will be issuing a formal call for papers. If you have suggestions for participants and/or paper proposals, please email Judy Coleman (judy.coleman@yale.edu). Check this website for updated information.


 
Tournament of Downloads SSRN has updated its controversial tournament of downloads. Here are the latest rankings of law schools, which I have reorded by total downloads (if you go to the SSRN page, you will see the default view of rankings by recent downloads):
    Rank--Name of Law School--Total Downloads
    1--University of Chicago - Law School--139210
    2--Harvard University - Harvard Law School--111683
    3--Stanford Law School--93107
    4--Columbia University - Columbia Law School--84872
    5--University of California, Los Angeles - School of Law--62956
    6--University of Texas at Austin - School of Law--60730
    7--University of Southern California - Law School--59035
    8--Georgetown University Law Center--57723
    9--University of California, Berkeley - School of Law (Boalt Hall)--41073
    10-Yale University - Law School--40328
    11-George Mason University - School of Law--40220
    12-University of Virginia - School of Law--38813
    13-George Washington University - Law School--37992
    14-New York University - School of Law--35620
    15-Vanderbilt University - School of Law--33536
    16-University of Pennsylvania - School of Law--32856
    17-Boston University - School of Law--27333
    18-University of Michigan at Ann Arbor - Law School--25570
    19-University of Minnesota - Twin Cities - School of Law--24551
    20-University of Illinois College of Law--24468
Let me add that these numbers, although interesting, need to be put in perspective. The ranks for law schools can be affected by one or two faculty members with a very large number of downloads. (For example, Bernard Black at Texas has 41301 downloads, two-thirds of the total for UT. Similarly, Lucian Bebchuk accounts for 38316 of Harvard's total 139210 downloads. Bebchuk & Black would be the fifth most downloaded law school.) Moreover, given the large participation of business schools in SSRN, authors whose work crosses over (private law, especially corporate finance) to the business academy are likely to be ranked more highly. Similarly, those with blogs (e.g. Stephen Bainbridge, Brian Leiter, and myself) get downloads from our readers. Despite these caveats, it is interesting that the SSRN Tournament of Downloads does a reasonable job of tracking Leiter's Educational Quality Rankings. You can access the updated SSRN author's tournament here.


 
Contest Announcement: Constitutional Democracy & the Nation-State
    University of Kentucky Third Annual Prize Essay Competition in European Philosophy from Kant to the Present TOPIC: Is Constitutional Democracy Indissociable from the Nation-state or Nation-state Formation? This question may be addressed historically, systematically, or through any combination of these two approaches. The winning essay will receive a prize of $1000 and, upon recommendation of the selection committee, be published in Inquiry. The author of the winning essay will also be brought to the University of Kentucky in the Fall of 2006 to present it. The winner of the first two annual Prize Essay Competitions were Dr. Sami Pihlström (University of Helsinki) and Dr. Robert Guay (Temple University) for their essays “Recent Reinterpretations of ‘The Transcendental’ Revisited” (Inquiry 47, No. 3 [June 2004]) and “The ‘I’s Have It: Nietzsche on Subjectivity” (forthcoming in Inquiry). Essays will be judged by a process of blind review. Submissions should be appropriately formatted for such a process, with the author's name and other identifying information appearing only on a separate cover sheet. Essays should be double spaced, in English, and no more than 8000 words in length. Past and present faculty and students at the University of Kentucky are ineligible to compete. Submissions should not have been previously published or submitted for publication. The deadline for submissions is March 1, 2006. Essays should be submitted in triplicate in typed (hard copy) form to Ms. Katie Barrett, Department of Philosophy, University of Kentucky, Lexington, KY 40506-0027 USA. No electronic submissions please.


 
Wednesday Calendar
    Florida State University, College of Law: Jonathan Klick, Diabetes Treatments and Moral Hazard.
    Oxford Faculty of Law Said Business School, & Law and Finance Joint Seminars: Professor Reinier Kraakman, An Overview of Asset Partitioning and the Law of Business Entities.
    Ontario Society for the Study of Argumentation: Conference on The uses of argument, with J. Anthony Blair University Professor of Philosophy, University of Windsor, Jeanne Fahnestock Professor of English, University of Maryland, College Park & Stephen E. Toulmin University Professor and Adjunct Professor of Anthropology, International Relations, and Religion, University of Southern California (continues through May 21).


 
Eisenberg et al on Juries, Judges, and Punitive Damages Theodore Eisenberg , Michael Heise , Martin T. Wells , Paula Hannaford-Agor , Neil LaFountain , G. Thomas Munsterman and Brian Ostrom (Cornell Law School , Cornell Law School , Cornell University , National Center for State Courts , National Center for State Courts - General , National Center for State Courts (NCSC) and National Center for State Courts) have posted Juries, Judges, and Punitive Damages: Empirical Analyses using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data on SSRN. Here is the abstract:
    We analyze thousands of trials from a substantial fraction of the nation's most populous counties. Evidence across ten years and three major datasets suggests that: (1) juries and judges award punitive damages in approximately the same ratio to compensatory damages, (2) the level of punitive damages awards has not increased, and (3) juries' and judges' tendencies to award punitive damages differ in bodily injury and no-bodily-injury cases. Jury trials are associated with a greater rate of punitive damages awards in financial injury cases. Judge trials are associated with a greater rate of punitive damages awards in bodily injury cases.


 
Katyanl on Privacy & Piracy Sonia Katyal (Fordham Law School) has posted Privacy vs. Piracy (Yale Journal of Law & Technology Vol. 7, p. 222, 2004) on SSRN. Here is the abstract:
    A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas - alongside an insurmountable array of capacities for panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously. This paradox, in turn, leads to the tension between privacy and intellectual property. Both areas of law face significant challenges because of technology's ever-increasing pace of development. Yet courts often exacerbate these challenges by sacrificing one area of law for the other, by eroding principles of informational privacy for the sake of unlimited control over intellectual property. Laws developed to address the problem of online piracy - in particular, the DMCA - have been unwittingly misplaced, inviting intellectual property owners to create private systems of copyright monitoring that I refer to as piracy surveillance. Piracy surveillance comprises extrajudicial methods of copyright enforcement that detect, deter, and control acts of consumer infringement. In the past, legislators and scholars have focused their attention on other, more visible methods of surveillance, namely those relating to employment, marketing, and national security. Piracy surveillance, however, represents an overlooked fourth area that is completely distinct from these other types, yet incompletely theorized, technologically unbounded, and, potentially, legally unrestrained. The goals of this Article are threefold: first, to trace the origins of piracy surveillance through recent jurisprudence involving copyright; second, to provide an analysis of the tradeoffs between public and private enforcement of copyright; and third, to suggest some ways in which the law can restore a balance between the protection of copyright and civil liberties in cyberspace. This paper was selected as the winning entry for the 2004 Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition, sponsored by the Yale Law School Information Society Project and the Yale Journal of Law and Technology. The file includes the updated version.


 
Schaumann on Copyright Class War Niels Schaumann (William Mitchell College of Law) has posted Copyright Class War (UCLA Entertainment Law Review, Vol. 11, pp.247-299, 2004) on SSRN. Here is the abstract:
    Developments in digital technology are dramatically reordering the content distribution business. The industry's traditional business model, based on controlling the channels of distribution for tangible copies, is threatened by digital distribution, with its low barriers to entry, low marginal costs and worldwide reach. An industry preoccupied with marketing, distributing and selling containers for content-books, CD's, DVD's, and so on - is discovering that the ability to control distribution channels for such containers is increasingly irrelevant in a world where the content formerly anchored to physical containers now flows freely through fiber-optic cable. The threat to the content industry has resulted in a kind of class war. The combatants' positions, and the changes in position that occur over time, can be understood in terms of a struggle between those that claim to possess a valuable resource and those that cannot, or cannot yet, make such a claim. Today, the Copyright Act, which was drafted by special-interest groups and is essentially incomprehensible to the uninitiated, is being used against the public. It has become critical for the public to engage with copyright law, and re-assert the primacy of the public interest. The author maintains that a nation gets the copyright law it deserves. A public that is passive in the face of expanding property rights in information will pay a heavy price in the form of homogenized culture and loss of intellectual liberty.


Tuesday, May 17, 2005
 
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Hans Oberdiek, TBA.
    Oxford Intellectual Property Research Centre,Intellectual Property in the New Millennium: Dr Birgitte Andersen & Dr Sue Konzelmann, “In Search of a Useful Theory of the Productive Potential of Intellectual Property Rights”.


 
Treanor on Judicial Review Before Marbury William Michael Treanor (Fordham University School of Law) has posted Judicial Review before Marbury (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
    While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it was for more common than previously recognized: there are more than five times as many cases from the Early Republic as the leading historical account found. The Article further shows that all of the cases in which statutes were invalidated fell into three categories: courts invalidated statutes that affected the powers of courts or juries, and they did so even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the federal constitution; federal courts invalidated state statutes, and, again, they did so even when the statutes could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. The Article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute and that courts aggressively protected their power, the power of juries, and the power of the national government.
Just finished browsing through this, which looks quite interesting!


 
Garnett on Pierce Richard W. Garnett (University of Notre Dame - Law School) has posted Taking Pierce Seriously: The Family, Religious Education, and Harm to Children (Notre Dame Law Review, Vol. 76, pp. 109-46, 2000) on SSRN. Here is the abstract:
    Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.
Very interesting! Garnett's paper goes to the heart of one of the deepest and thorniest problems for liberal political theory. I was intrigued by Garnett's treatment of the autonomy argument--which he conflates with the notion of "the best interests of the child." Of course, there is a sense in which this conflation is exactly right--the interest of persons in their own autonomy is their "best interest" in a sense, but the terminology is also misleading. Following Rawls we might say that the relevant interest is the interest of persons in developing the two moral powers: "a capacity for a sense of justice and for a conception of the good." (Political Liberalism, p. 19):
    A sense of justice is "the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of cooperation." This sense expresses "a willingness...to act in relation to others on terms that they also can publicly endorse" Id. A conception of the good includes "a conception of what is valuable in human life." Normally it consists "of a more or less determinate scheme of final ends, that is, ends [goals] that we want to realize for their own sake, as well as attachments to other persons and loyalties to various groups and associations." (PL 19) Rawls says that we also "connect such a conception with a view of our relation to the world...by reference to which the value and significance of our ends and attachments are understood" (Political Liberalism, pp. 19-20)
In particular, when we protect the interest of children in developing the first moral power, we aim to provide persons with the capacity to judge what is in their own best interests and not to impose some particular conception of what particular form of life or conception of the good would constitute those "best interests." Highly recommended!


 
Stewart on Global Adminstrative Law Richard B. Stewart (New York University School of Law) has posted U.S. Administrative Law: A Model for Global Administrative Law on SSRN. Here is the abstract:
    This Article examines the potential for drawing on U.S. administrative law in the development of a global administrative law to secure greater accountability for the growing exercise of regulatory authority by international or transnational governmental decision-makers in a wide variety of fields. It discusses how U.S. administrative law and practice might form one useful point of departure for developing both "top down" and "bottom up" approaches for understanding and further developing global administrative law. A global administrative law must, of course, draw on legal principles and practices from many domestic and regional legal systems and traditions, as well as sources in international law. Accordingly, the U.S.-based perspective offered in this Article is only one of many that must be considered.
Eons ago, I had adminitrative law from Stewart, who taught a marvelous course, very much in the Hart & Sax legal-process tradition that was then vying with Critical Legal Studies for intellectual dominance at Harvard. My, how times have changed!


Monday, May 16, 2005
 
Monday Calendar
    Oxford Moral Philosophy Seminar: Daniel Markovits (Yale), 'Contract and Collaboration.'


 
Netanel on Market Power in the Marketplace of Ideas Neil W. Netanel (University of California, Los Angeles - School of Law) has posted Copyright and 'Market Power' in the Marketplace of Ideas (ANTITRUST, PATENTS AND COPYRIGHT, Howard Shelanski, Francois Leveque, eds., Edward Elgar, 2005) on SSRN. Here is the abstract:
    Antitrust and intellectual property law increasing fall within the common rubric of innovation policy. Yet in fundamental respects, patent law fits more comfortably under that umbrella than copyright. A primary reason is that copyright does not merely spur innovation. It also regulates speech. In building upon that observation, this Chapter addresses a number of points at the intersection of antitrust, media concentration, copyright, and free speech. First, it surveys the conflict between copyright and free speech, as recognized in both United States and European jurisprudence. Second, it focuses on media industry incumbents' repeated use of copyright to bar entry to new speakers and speech distributors, and the very limited efficacy of current U.S. antitrust doctrine in constraining that practice. Third, it considers a number of ways in which the marketplace of ideas differs from markets for goods and services, including (1) the contrast between expressive diversity and media product differentiation, (2) the tendency of demand for expression to follow a winner-take-all power law curve, and (3) the context-dependent nature of "market power". Fourth, the Chapter asks whether copyright ever confers market power, relying on an average cost, "normal profits" metric rather than the commonly used marginal cost baseline. The Chapter concludes by demonstrating that what begins as economic analysis of copyright's optimal scope must, by its very terms, ultimately turn on broad social policies regarding the desired shape and contours of our "system of freedom of expression." Accordingly, to determine copyright's scope and limitations, we must look to free speech law and policy, not just the law and policy that underlie antitrust.


 
Geistfeld on Constitutional Tort Reform Mark Geistfeld (New York University Law School) has posted Constitutional Tort-Reform (Loyola of Los Angeles Law Review, Vol. 38, No.3) on SSRN. Here is the abstract:
    This article, written for the first annual Access to Justice symposium at Loyola Law School of Los Angeles, addresses the implications of due process for tort reform. In a line of relatively recent cases, the U.S. Supreme Court has held that a tort award of punitive damages must satisfy the procedural and substantive requirements of the Due Process Clause of the U.S. Constitution. So far, constitutional tort-reform has been limited to punitive damages, but such reform is not necessarily limited to this area of tort law. As the article argues, other important tort practices raise the same sort of due process concerns that the Court has relied upon to justify the constitutional tort-reform of punitive damages practice. The Court's punitive damages jurisprudence may thus provide the foundation for a new type of broad-based tort reform. Regardless of what one may think about the Court's foray into tort reform, constitutional tort-reform has desirable characteristics. Rather than addressing the substantive aims of tort liability, constitutional tort-reform is supposed to reduce or eliminate any unreasonable legal uncertainty generated by the tort practice in question. But as the article further argues, the neat distinction between substance and process cannot be attained in practice. Any reform designed to reduce legal uncertainty will depend upon a contestable conception of tort liability, a characteristic of constitutional tort-reform clearly present in the Court’s punitive damage jurisprudence. The Court, though, does not have to reach the correct substantive outcome in order to make constitutional tort-reform desirable. If the Court adopts a reform that depends upon the wrong substantive conception of tort law, the states retain the power to adopt a different substantive objective for the tort practice. Constitutional tort-reform therefore can serve the valuable role of forcing state courts and legislatures to identify more clearly the substantive objectives of tort law, an issue of critical importance that has not been adequately addressed by the reform movements of the last century.


 
Rose-Ackerman & Tobin on Bilateral Investment Treaties Susan Rose-Ackerman and Jennifer Tobin (Yale Law School and Yale University) have posted Foreign Direct Investment and the Business Environment in Developing Countries: The Impact of Bilateral Investment Treaties. Here is the abstract:
    The effects of Bilateral Investment Treaties on FDI and the domestic business environment remain unexplored despite the proliferation of treaties over the past several years. This paper explores the objectives and possible consequences of BITs. Specifically, it asks whether BITs stimulate FDI flows to host countries, and if this relationship is conditional on the level of political risk in a country. We find a very weak relationship between BITs and FDI. Further, we find that rather than encouraging greater FDI in riskier environments, BITs only have a positive effect on FDI flows in countries with an already stable business environment. Overall, BITs seem to have little positive effect either on foreign investment or on outside investors' perception of the investment environment in low- and middle-income countries.


 
Legal Theory Calendar
    Monday, May 16
      Oxford Moral Philosophy Seminar: Daniel Markovits (Yale). 'Contract and Collaboration.'
    Tuesday, May 17
      Oxford Jurisprudence Discussion Group: Hans Oberdiek, TBA.
      Oxford Intellectual Property Research Centre,Intellectual Property in the New Millennium: Dr Birgitte Andersen & Dr Sue Konzelmann, “In Search of a Useful Theory of the Productive Potential of Intellectual Property Rights”.
    Wednesday, May 18
      Florida State University, College of Law: Jonathan Klick, Diabetes Treatments and Moral Hazard.
      Oxford Faculty of Law Said Business School, & Law and Finance Joint Seminars: Professor Reinier Kraakman, An Overview of Asset Partitioning and the Law of Business Entities.
      Ontario Society for the Study of Argumentation: Conference on The uses of argument, with J. Anthony Blair University Professor of Philosophy, University of Windsor, Jeanne Fahnestock Professor of English, University of Maryland, College Park & Stephen E. Toulmin University Professor and Adjunct Professor of Anthropology, International Relations, and Religion, University of Southern California (continues through May 21).
    Thursday, May 19
      Oxford Faculty of Law Said Business School, & Law and Finance Joint Seminars: Professor Reinier Kraakman, Asset Partitioning and the Law of Business Entities- The Historical Evolution
      Oxford Society for Law and Religion: Dr W. Pickering, Persecution and Genocide- Nature and Definitions.
    Friday, May 20
      Oxford Globalisation & Sustainable Development Law Group, Sustainable Development Law Lectures: Prof. Myron Frankman (Canada): “In the Spirit of Keynes: A Unitary Approach to Sustainable Development”.


Sunday, May 15, 2005
 
Legal Theory Lexicon: Metaethics
    Introduction Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the conventional arguments of principle or policy for and against particular legal rules. These first order questions involve issues of political morality; that is, normative legal theory involves first-order questions of normative ethics. Sometimes, however, a different sort of issue arises. Second order questions might include the following: "What do statements about what the law should be mean?" or "Are the propositions of normative legal theory objective?" These second order questions of normative legal theory are a subclass of the more general class of second order questions of moral and ethical theory. This is the domain of metaethics.
    "Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions.
    Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
    Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics:
    • What is the meaning of moral language? Do statements about what the law ought to be state facts or do they do something else?
    • Are there moral facts or moral properties? More particularly, are there normative legal facts? If so, then can they be reduced to nonmoral properties or are they somehow different from nonmoral properties?
    • Can we have knowledge (justified true beliefs) about what the law ought to be? If we can, how is such knowledge possible?
    • What is the motivational role of moral propositions? Assuming there are moral facts, does the fact that X ought to be the law in any way provide a motive for making X the law?
    • Are statements about what the law should be objective? If not, are they relative to the norms of some social group? Or subjective? Or meaningless?
    Let's explore one or two of these concepts.
    Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false.
    I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism.
    Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural).
    A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism.
    It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important.
    Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent.
    For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations.
    But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force.
    Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain!
    Bibliography
    • Alexander Miller, An Introduction to Contemporary Metaethics (2003). This is a sophisticated introductory text that outlines classic and contemporary positions in metaethical debates.
    • A.J. Ayer, On the Analysis of Moral Judgments in Freedom and Morality and Other Essays (1984).
    • Simon Blackburn, Essays in Quasi-Realism (1993).
    • Allan Gibbard, Wise Choices, Apt Feelings (1990).
    • G.E. Moore, Principia Ethica (1903).


Saturday, May 14, 2005
 
Goals of Antitrust Over at Law & Society Weblog, check out The Goals of Antitrust and Economic Policy: Consumer Welfare? Efficiency? Perfect Competition?. Here's a taste:
    In every debate about the goals of antitrust policy, or, more broadly, economic and regulatory policy, proponents of diametrically opposed positions use the same words to (favorably) describe the ends of their policies. Consumer welfare, for example, is touted as a goal by both consumer advocates (who favor regulation) and economic conservatives (who abhor it). Efficiency is another positive, for which each camp claims to have the monopoly. And what about perfect competition and its assumption of many small firms? Populists use the model to defend an ideal of a decentralized economy, yet perfect competition is the bedrock of the neo-classical revolution and Chicago school economics, that led to near-monopoly mergers and did all but away with restraints on vertical mergers, checks on tying, and monopolization offenses such as predatory pricing. Without taking sides in the debate (for now, at least), let’s try to disentangle some of these concepts.


 
Legal Theory Bookworm The Legal Theory Bookworm recommends Crafting Law on the Supreme Court: The Collegial Game by by Forrest Maltzman, James F. Spriggs II, Paul J. Wahlbeck. Here is a blurb:
    In Crafting Law on the Supreme Court, Maltzman, Spriggs, and Wahlbeck use material gleaned from internal memos circulated among justices on the U.S. Supreme Court to systematically account for the building of majority opinions. The authors argue that at the heart of this process are justices whose decisions are constrained by the choices made by the other justices. The portrait of the Supreme Court that emerges stands in sharp contrast to the conventional portrait where justices act solely on the basis of the law or their personal policy preferences. This book provides a fascinating glimpse of how the Court crafts the law.
And here are some quotes:
    "Crafting Law on the Supreme Court is a first-rate examination of what happens in the crucial stages after the justices reach a decision on the merits. By putting hypotheses about strategic interdependence through the rigors of (appropriately) sophisticated econometric tests, we learn much that is new about bargaining and accommodation over the Court's opinion." Jeffrey Segal, State University of New York, Stony Brook "In this pathbreaking study, Maltzman, Spriggs, and Wahlbeck unravel the mysteries of strategic behavior inside the Supreme Court--how Justices engage in instrumental behavior to achieve case outcomes consistent with their doctrinal and policy perspectives. Their efforts to extend the analysis beyond mere case studies and to reach significant general conclusions should set the agenda for further research and be of interest to all students of the Supreme Court." Philip P. Frickey, University of Minnesota "Utilizing data drawn from the papers of several Supreme Court justices, Crafting Law on the Supreme Court is an outstanding addition to the rational choice and the courts literature and will surely be seen as a classic in the field. More traditional students of public law will also profit from the extensive reprinting and discussion of justices' memoranda and the fashioning of Supreme Court doctrine." Sheldon Goldman, University of Massachusetts at Amherst "Forrest Maltzman, James Spriggs, and Paul Wahlbeck argue that court opinions do in fact matter: in the "collegial setting" of the Supreme Court, the opinion-writing process features its own unique set of political dynamics, as justices try to secure opinions that lie as close as possible to their own policy preferences. The authors advance this important argument by drawing on justices' papers and other evidence of internal deliberations on the Burger Court. The final product of their efforts is quite persuasive, more than justifying the authors' strategic departure from recent trends in judicial research." Choice "Forrest Maltzman, James Spriggs, and Paul Wahlbeck argue that court opinions do in fact matter: in the "collegial setting" of the Supreme Court, the opinion-writing process features its own uniques set of political dynamics, as justices try to secure opinions that lie as close as possible to their own policy preferences. The authors advance this important argument by drawing on justices' papers and other evidence of internal deliberations on the Burger Court. The final product of their efforts is quite persuasive, more than justifying the authors' strategic departure from recent trends in judicial research." Choice "The product of their efforts is quite persuasive" Choice April 2001 "Crafting Law on the Supreme Court has something to say to, and should be read by, all students of the Court whether one is grounded more in scientific and empirical research on the Court or whether one's interests are more doctrinally oriented. The book's presentation is both rich in detail, mostly provided through the anecdotes the authors share with the reader, but more important, their analysis is systematic, thorough, and ultimately convincing." Journal of Politics


 
Download of the Week The Download of the Week is The New Textualists' New Text (Loyola of Los Angeles Law Review, 2005) by Lawrence M. Solan. Here is the abstract:
    The past two decades have seen a polarized debate in both the courts and legal academic literature between those who regard themselves as textualists on the one hand, and those who advocate for courts using a broader range of evidence on the other. Gone largely unnoticed in the battles between these camps during the past quarter century is the fact that both sides in the debate agree upon almost everything when it comes to statutory interpretation. Most of whom textualists call "intentionalists" are really not that at all. Rather, they take a pragmatic, eclectic approach to the interpretation of statutes. By the same token, textualists do not eschew all context in the interpretation of statutes, as a cartoon-like description of the approach may suggest. To the contrary, proponents of both approaches find no difficulty looking at the earlier interpretive decisions of courts, background assumptions shared by the relevant community, constitutional considerations, questions of coherence with related statutes, and a host of other considerations. Only some context disturbs textualists, i.e. legislative history adduced as evidence of legislative intent, which they regard as an illegitimate. Recent writings from textualists explain how textualism can lead to results in disputed cases that are sensitive to a statute’s purpose without resorting to extratextual materials that create both evidentiary and conceptual difficulties. By adopting an enriched approach to language as an initial matter, a view that considers context an important element of how we speak and understand language generally, textualist practice is able to internalize a great deal of contextual information while at the same time maintaining procedures less likely to lead courts into a decision-making process that conflicts with basic values such as separation of powers. The key intellectual decision is to focus on the ordinary meaning of statutory words, rather than on their plain meaning, as found in dictionary definitions. The shift from focusing on dictionaries to ordinary usage should be seen as an additional step toward reconciling textualist methodology with the goal of providing an interpretation that reflects a statute’s purpose. If so, it is worth asking how well it achieves this goal. This Article argues that in many circumstances it does so very well. Nonetheless, there are several recurring situations in which the textualist effort falls short, even on its own terms.
Download it while its hot!


Friday, May 13, 2005
 
Choi & Gulati on Which Judges Write Their Own Opinions Stephen J. Choi and G. Mitu Gulati (New York University - School of Law and Georgetown University Law Center & "Tournament of Judges" fame!) have posted Which Judges Write Their Opinions (And Should We Care)?. Here is the abstract:
    Common wisdom holds that many federal judges do not write their own opinions. While their degree of input into opinion writing varies, almost all rely to some extent on law clerks, typically recent law school graduates, to research and draft substantial sections of the opinion. Why should we care which judges write their opinions? We posit that determining the actual input of federal judges into the authorship of opinions provides useful information in a number of contexts, including judicial promotion decisions, the allocation of scarce judicial resources, and the judicial clerkship market for law students. We start with generic tests of authorship obtained from computational linguistics. To assess the effectiveness of these tests in the judicial context, we identify (based on an informal survey of several sitting federal judges), three judges reputed to write their own opinions. We then use a randomly selected set of opinions for active circuit judges from 1998 to 2000 to examine whether the generic tests succeed in ranking these three judges high in terms of authorship. The generic tests failed to distinguish authorship due in part to the subject matter specific nature of opinions. Whether an opinion is a criminal, administrative, commercial law opinion matters. Comparing two judges based on their criminal law opinions may provide different results than comparing the same judges based on the criminal law opinions of one judge against the administrative law opinions of the other judge. Our generic tests did not control for subject matter of opinions. We provide a number of more customized tests for the judicial context that attempt to control for subject matter. Using these customized tests, we are able to distinguish the three test judges based on authorship.


 
Burk on Privacy in the Global Dataspace Dan L. Burk (University of Minnesota Law School) has posted Privacy and Property in the Global Datasphere on SSRN. Here is the abstract:
    Adoption of information technologies is dependent upon the availability of information to be channeled via such technologies. Although many cultural approaches to information control have been identified, two increasingly ubiquitous regimes are battling for dominance in the international arena. These may be termed the utilitarian and the deontological approaches, and may be roughly identified with, respectively, the United States and the continental European tradition. Each approach has been aggressively promulgated by its respective proponent via international treaty regimes in the areas of privacy and intellectual property, to the virtual exclusion of other alternatives. Absent a drastic shift in international treaty dynamics, these dominant conceptions will likely curtail the development of alternate approaches that might otherwise emerge from local culture and tradition.


 
Katz on Marriage as Partnership Sanford N. Katz (Boston College - Law School) has posted Marriage as Partnership (Notre Dame Law Review, Vol. 73, pp. 1251-1274, 1998) on SSRN. Here is the abstract:
    In this essay honoring Professor Mary Ann Glendon, the author discusses the contract of partnerships concept of marriage as it applies to antenuptial agreements, cohabitation contracts, and property settlement agreements, the three contexts about which Professor Glendon has written in her books The New Family and the New Property (1981) and The Transformation of Family Law (1996).


 
Kohler on Labor Law & Legal Transformation Thomas C. Kohler (Boston College - Law School) has posted The Disintegration of Labor Law: Some Notes for a Comparative Study of Legal Transformation (Notre Dame Law Review, Vol. 73, pp. 1311-1332, 1998) on SSRN. Here is the abstract:
    While acknowledging the difficulties inherent in a comparative approach to labor and employment ordering issues, the author argues that our times and circumstances force us to consider such a perspective. This essay looks at the some of the background and characteristics of the labor law regimes of the United States and Germany to reflect on where we have been and where we might be going, and concludes that we stand at the edge of a new world, one that may well entail a new culture of work and new ways of being for all its inhabitants.


 
Herman on the Submajoritarian Fourth Amendment Susan M. Herman (Brooklyn Law School) has posted The USA Patriot Act and the Submajoritarian Fourth Amendment (Harvard Civil Rights-Civil Liberties Law Review, Forthcoming) on SSRN. Here is the abstract:
    Public opinion about the controversial surveillance provisions of the USA PATRIOT Act, some of which are scheduled to sunset, shows considerable concern about whether the Act goes too far in undermining constitutional values, including privacy, freedom of speech and association, and executive branch accountability. This article describes what we know about four of the most controversial provisions three years after their enactment, including attempts to litigate their constitutionality. The real problem with these provisions is that they reveal a divergence between constitutional values and constitutional law. The courts are unlikely to find much about the surveillance provisions violative of the Fourth Amendment, which the Supreme Court has interpreted in a manner that is distinctly submajoritarian. The role of the courts in this national debate has also been minimized because litigation of the constitutionality of these provisions has been delayed and distorted by the secrecy surrounding their implementation and executive branch control of the course of litigation. Some argue that we should not be troubled by this minimization of judicial role because Congress is better suited to deciding when searches and seizures are reasonable. This article contends that the Court should revise its Fourth Amendment doctrine to make Congress its partner instead of its rival in providing a check on executive discretion to search and seize. Because the Supreme Court is not likely to restore judicial role in this area any time soon, Congress should ask more searching questions about the Patriot Act than whether it is constitutional.


 
Dallas on Corporate Ethics in Health Care Lynne Dallas (University of San Diego School of Law) has posted Corporate Ehtics in the Health Care Marketplace (Seattle Journal for Social Justice, Vol. 3, No. 1) on SSRN. Here is the abstract:
    Consider three examples of problematic corporate decision making: first, in 2002, employees were less likely to have employer-provided insurance than thirty years ago and the price of health care for those who do receive it is ever increasing. Second, while many employees are without health insurance, the compensation for chief executive officers and other executive officers has increased dramatically. Third, consider the well-publicized examples of corporate decisions to engage in fraudulent and unethical business practices. These problems will not be solved by glib references to market ideology that claims markets alone adequately regulate corporate behavior. Nor will these problems be solved by assuming that a few bad apples were responsible. Indeed, only by examining the environmental context in which decision making occurs will corporate ethics in the health care marketplace be furthered. This article is a brief overview of the importance of an organization's structure, policies and practices in the establishment of an ethical climate. An organization's climate affects whether individual employees, as well as the leaders of the organization, make ethical or unethical decisions. Part II of this article begins by defining ethical climates and describes how they are ascertained. Part III discusses two contextual factors in more detail: workplace leadership and reward structures. Finally, this article concludes with some basic recommendations for motivating organizations to work toward creating ethical climates.


Thursday, May 12, 2005
 
Thursday Calendar
    University of Edinburgh, The Centre for Law and Society: Michel Seymour (Department of Philosophy, Université de Montréal), "Allen Buchanan and the remedial right of secession" Centre for Law and Society.


 
Richman on Violent Crime Federalism Daniel C. Richman (Fordham University School of Law) has posted The Future of Violent Crime Federalism on SSRN. Here is the abstract:
    The goal of this article is to show intergovernmental relations at a crossroads. For two decades, the net costs of the federal interaction with state and local governments in the criminal area were absorbed nationally, with the benefits felt locally. Now, the federal commitment to terrorism prevention, and the role federal authorities envision state and local agencies playing in this endeavor demand certain sacrifices and offer uncertain rewards. Precisely where we will go from here remains to be seen, but this, somewhat impressionistic essay is an attempt look back to where we have been and to chart the course we seem to be on.


 
Williams on Reparations Verna L. Williams (University of Cincinnati - College of Law) has posted Reading, Writing, and Reparations: Systemic Reform of Public Schools As a Matter of Justice on SSRN. Here is the abstract:
    This Article examines reparations as a means of supporting systemic reform of public education, focusing on a recent enactment of the Virginia General Assembly, the Brown v. Board of Education Scholarship Program and Fund (Brown Fund Act). This provision seeks to remedy the state's refusal to integrate schools after the Supreme Court's decision in Brown v. Board of Education by providing scholarships to persons denied an education between 1954 and 1964, a period known as massive resistance. Under this regime, the state's executive and legislative branches colluded to develop laws that defied Brown's mandate, including authorizing the governor to close public schools. One locality, Prince Edward County, went so far as to keep its schools closed for five years, but provided state-funded scholarships to enable white children to continue their learning. Black students, however, went without an education, or had to leave the area to get what state officials denied them. The paper examines the Brown Fund Act within several contexts to assess its efficacy as a remedy and as a form of reparations. Specifically, the paper examines key aspects of Virginia's history and finds that state imposed limits on educational opportunities were part of larger systemic subordination of African Americans. Thus, for example, laws proscribing literacy for slaves, limiting the franchise for Blacks, denying integration in schooling, and enabling Black taxpayer dollars to be diverted to white schools combined to maintain a caste system in which Blacks perpetually would occupy the lower rungs. Viewed in this light, the Brown Fund Act is only a partial remedy and not truly reparative. The paper thus concludes by building upon the work of Professor Eric Yamamoto, and others, who have posited that reparations should emphasize material change by, inter alia, repairing institutions that have been tainted by state-sanctioned, state-enforced subjugation. The institution in need of repair in this instance is public education. In this regard, the paper explores a variety of legislative measures the state should pursue to effectuate such change and provide justice that it so long denied its Black citizens.


 
Kanstroom on Hard Laws & Bad Cases Daniel Kanstroom (Boston College - Law School) has posted Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases (Harvard Law Review, Vol. 113, pp. 1890-1935, 2000) on SSRN. Here is the abstract:
    From the Author’s Introduction: We live in a time of unusual vigor, efficiency, and strictness in the deportation of long-term permanent resident aliens convicted of crimes. This situation is the result of some fifteen years of relatively sustained attention to this issue, which culminated in two exceptionally harsh laws: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In many cases, these laws have brought about a rather complete convergence between the criminal justice and deportation systems. Deportation is now often a virtually automatic consequence of criminal conviction. This convergence, and the harshness of these laws - their retroactivity, their use of mandatory detention, the automatic and often disproportionate nature of the deportation sanction, and the lack of statues of limitation - raise two related questions: First, why are we doing this? Second, what could be the consequences of this approach for the constitutional legitimacy of deportation proceedings?


 
Dau-Schmidt on the Future of Employment Law Kenneth Glenn Dau-Schmidt (Indiana University-Bloomington, School of Law) has posted Meeting the Demands of Workers into the Twenty-First Century: The Future of Labor and Employment Law (Indiana Law Journal, Vol. 68, No. 685, 1993) on SSRN. Here is the abstract:
    In this essay, Professor Dau-Schmidt undertakes a comparative institutional analysis of the four basic means of regulating the employment relationship: individual bargaining, collective bargaining, protective legislation and the common law. He briefly examines the history of America's reliance first on the common law and individual bargaining and later on collective bargaining and protective legislation to meet the demands of workers. Professor Dau-Schmidt also discusses the probable future implementation of these institutions in governing the employment relationship in the Twenty-First Century.


 
Duff on the Abolition of Wealth Transfer Taxes David G. Duff (University of Toronto - Faculty of Law) has posted The Abolition of Wealth Transfer Taxes on SSRN. Here is the abstract:
    When the United States acted to phase-out its estate tax by 2010, it joined a small but growing group of countries which have also repealed their wealth transfer taxes. In Canada, federal gift and estate taxes were repealed in 1972 and provincial wealth transfer taxes were abolished in the 1970s and 1980s. In Australia, State and Commonwealth wealth transfer taxes were repealed in the late 1970s and early 1980s. New Zealand followed suit in the 1990s, reducing estate tax rates to zero in 1992 and repealing the tax in 1999. This paper reviews the abolition of wealth transfer taxes in Canada, Australia and New Zealand, relying on public choice theories of politically efficient revenue structures to help explain the repeal of these taxes in each country. Part II outlines the essential elements of public choice theory and its implications for tax policy. Part III surveys the history of wealth transfer taxes in Canada, Australia and New Zealand, examining in detail the events leading up to the repeal of these taxes, and illustrating the relevance of public choice theory to their abolition in each country. Part IV offers brief conclusions on the significance of this experience for the future of wealth transfer taxation in these and other countries.


Wednesday, May 11, 2005
 
Helfer on IP Rights in Plant Varieties Laurence R. Helfer (Vanderbilt University - School of Law) has posted Intellectual Property Rights in Plant Varieties: International Legal Regimes and Policy Options for National Governments (Food and Agriculture Org. of the United Nations, FAO Legislative Study, No. 85, 2004) on SSRN. Here is the abstract:
    This monograph, commissioned by the UN Food and Agriculture Organization, provides an overview of the international legal regime regulating intellectual property rights in plant varieties. It identifies the essential features of this regime, including the policies supporting the grant of intellectual property rights and the societal objectives in tension with those rights, the institutions that have shaped the international intellectual property system, and the provisions contained in the relevant international treaties. The study identifies different sets of policy options for national governments based upon the specific constellation of treaty commitments they have undertaken. It then sets forth regulatory options for those governments to protect plant varieties while achieving other public policy objectives relating to plant genetic resources.


 
Wednesday Calendar
    Florida State University College of Law: Amitai Aviram, FSU, The Placebo Effect of Law.
    Oxford, The 2005 John Locke Lectures: Professor E. Sosa (Brown University and Rutgers University). 'Apt Belief and Reflective Knowledge.'


 
Sadat on Amnesty Leila N. Sadat (Washington University, St. Louis - School of Law) has posted Exile, Amnesty and International Law on SSRN. Here is the abstract:
    This article examines recent state and international practice regarding amnesties for jus cogens crimes, particularly cases from Latin America as well as from international courts and tribunals, and explores the transnational legal dialogue between courts, and to a lesser degree, legislatures, that has led to international norm creation in this area, strengthening the prohibition against amnesties considerably. At the same time, constraints upon the exercise of universal jurisdiction, whether imposed by legislatures, articulated in judicial opinions, or created by international treaty, have provided a political check to the otherwise unbounded exercise of universal jurisdiction by states and the exercise of universal international jurisdiction by the international community taken as a whole. Indeed, the article suggests that the question of amnesties for war crimes, crimes against humanity and genocide raises profound questions about the nature and form of international criminal law - its substantive content, temporal dimensions, and constitutional status. The article challenges the conventional wisdom that "swapping justice for peace," is morally and practically acceptable. Instead, what longitudinal studies we have suggest that amnesty deals typically foster a culture of impunity in which violence becomes the norm, rather than the exception. The article considers amnesties from a jurisdictional approach, in which domestic, transnational and international amnesties are considered in both horizontal and vertical perspective. Finally, while noting that international criminal justice is not a "one size fits all" proposition, and that carefully tailored and culturally sensitive approaches suitable to individual cases is required, the article underscores the importance of the emerging normative and legal structure apparent in international criminal law, as well as the need for imperial powers such as the United States to submit themselves to the rule of law in order to enhance the legitimacy and effectiveness of the rules.


 
Rubin on Tort Reform Paul H. Rubin (Emory University School of Law) has posted Fundamental Reform of Tort Law (Regulation, No. 4, pp. 26-33, 1995) on SSRN. Here is the abstract:
    This paper was published in Regulation in 1995, Number 4. It is an argument in favor of replacement of tort with contract for harmful events where the parties have a pre-injury relationship. It provides some speculation about what such law would look like. In particular, I argue that parties would probably not want to be able to sue for nonpecuniary damages (e.g., pain and suffering) and would want limited options for punitive damages. The paper also discusses the magnitude of the U.S. tort system and compares it with the U.S. tort system in the past and also with foreign tort systems. This suggests that excess tort costs (in 1995) were between $500 and $900 per household. This paper may be viewed as a summary of my 1993 AEI book, Tort Reform by Contract.


Tuesday, May 10, 2005
 
Appleman on Batson Laura Appleman has posted Reports of Batson's Death Have Been Greatly Exaggerated: How the Batson Doctrine Enforces a Normative Framework of Legal Ethics on SSRN. Here is the abstract:
    I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer's professional responsibility. Accordingly, my use of legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. I argue that by fostering a non-discrimination norm as part of the norm of professionalization, Batson both improves the actions of lawyer and judges during jury selection while at the same time constructing and compelling an aspirational code of ethics. The article has several goals. First, I propose a legal ethics theory of Batson, as the Batson doctrine is a vehicle through which the legal system achieves a major aspiration of professionally responsible behavior. Second, I provide a measured look at the anxiety surrounding the Batson procedure and the peremptory challenge, starting with its most recent history, and explain how my theory of legal ethics can resolve many of the Batson grievances. Finally, I will examine why Batson is so important and look at some of the additional implications of my legal ethics approach. I conclude that Batson's framework of legal ethics assists in the goal of furthering the moral integrity of the legal profession.
And here is a bit more from this very interesting paper:
    The field of legal ethics provides a useful lens for thinking about Batson. One aspect of Batson which is unique is that it protects the right of the potential jurors to serve on the jury, yet it is enforced in criminal justice proceedings by defense lawyers, prosecutors and judges. A focus on legal ethics makes this aspect less anomalous, however, because Batson’s ethical imperative compels responsible behavior by attorneys and jurists on behalf of not only the defendant, but also the potential jurors. The result is what one scholar has propounded as a moral theory of ethical lawyering; the lawyer or judge engaging with the Batson doctrine—which occurs in each and every jury selection—takes "personal moral responsibility for the consequences of their professional acts." The system of legal ethics is generally designed to protect the public and, in doing so, protect the integrity and reputation of the profession. Traditionally, the standard enforcement mechanism for legal ethic complaints is the client-initiated attorney disciplinary proceedings. Other types of enforcement mechanisms, however, often create a situation where the threat of the disciplinary proceeding is unlikely to provide a means of policing wrongdoing. For example, we frequently rely on prosecutors and other lawyers to initiate charges against attorneys who assist their clients’ criminal activities. Traditional enforcement mechanisms, however, frequently fail to police attorney misconduct, as the punishment is so far attenuated from the actual misdeed that there is little reinforcement of positive behavior. The Batson procedure is a special type of enforcement mechanism, one which differs from the rest by accurately and immediately policing wrongdoing. Batson should thus be seen as one way in which the legal system achieves one of its aspirations, because the ethical behavior of participants in the criminal trial is ensured by the rules of the doctrine. As one scholar notes, “the likelihood that the traits of character on which ethical lawyering depends will be fostered or undermined among individual lawyers will be determined to a great extent by the shape of the institutional framework of legal practice.” The framework of Batson fosters ethical lawyering by its immediate and vigorous enforcement mechanisms.
As readers of LTB know, I am very interested in the relationship between law and character in general and the virtues of legal actors in particular. Highly recommended.


 
Tuesday Calendar
    University of Edinburgh, The Centre for Law and Society: COLLOQUIUM: "On the Disaggregation of Public law and Political Theory"
      Main Speaker
        Frank Michelman (Harvard)
      Respondents/Discussants:
        Zenon Bankowski Emilios Christodoulidis Stephen Tierney (Edinburgh) Johan van der Walt (RAU Johannesburg, S. Africa) Adam Tomkins (Glasgow) Ioannis Tassopoulos (Athens) Colin Warbrick (Durham)
    Oxford Juirsprudence Discussion Group: Nkiruka Ahiauzu, Multiple Principles and the Obligation to Obey the Law.
    Oxford, The 2005 Uehiro Lectures: Professor Tony Coady (Melbourne), 'Messy Morality: Moralism, Realism and Political Violence.'
    Oxford, The H.L.A. Hart Memorial Lecture: Owen Fiss, The War on Terrorism and the Rule of Law.
    Oxford, The Okham Society: Carsten Nielsen (University of Århus). 'Moral Absolutism Defended.'
    Oxford, The Okham Society: Ian Phillips (Magdalen College). 'Intentionalism and Experience.'
    University of Chicago, Law & Economics: Andrei Shleifer, Whipple V. N. Jones Professor of Economics, Harvard University, The Evolution of Precedent.
    University of Texas School of Law: Sam Buell, Visiting Professor, UT Law, "White Collar Mistakes".
    Oxford, The Okham Society: Arto Laitinen (University of Jyväskylä). 'Moral Particularism and the Intelligibility Requirement.'


 
Garnett on Rehnquist on Free Speech Richard W. Garnett (University of Notre Dame - Law School) has posted Free Speech, Public Property, and Government Money (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:
    The First Amendment's Free Speech Clause - Congress shall make no law . . . abridging the freedom of speech - occupies much of the field when it comes to our public debates on matters of law, policy, and morality. Today, in the courts of both law and public opinion, arguments about a huge range of human activities - from cutting-edge scientific research and legal-aid work to video games and unauthorized dancing - are constructed using First Amendment premises, precedents, and jargon. Chief Justice Rehnquist, however, has for the most part resisted, or at least regretted, this free-speech takeover during his tenure on the Supreme Court. This chapter examines several of Rehnquist's opinions in free-speech cases involving the not-so-clear line between government speech and spending, on the one hand, and government-facilitated private speech on the other. This examination suggests, it is argued, that that Rehnquist's work does not reflect skepticism or hostility toward the core values protected by the Free Speech Clause, as some have charged, but instead reveals a careful appreciation for the fact that the translation and reduction of so many policy questions to free-speech problems comes at a cost. After all, as the civic, social, and political territory controlled by the Free Speech Clause grows, the amount shrinks that is governed democratically and experimentally by the people and their representatives or that is left under the direction of private persons, groups, and institutions. One implication of the free-speech takeover, Rehnquist seems to be warning us, is that difficult policy and other decisions depend increasingly on judges' evaluation of the abstract weight or worthiness of the government's interests, rather than on deliberation, compromise, and trial-and-error by and among citizens and politically accountable public officials.


 
Cox on Partisan Fairness Adam B. Cox (University of Chicago Law School) has posted Partisan Fairness and Redistricting Politics (New York University Law Review, Vol. 70, No. 3, June 2004) on SSRN. Here is the abstract:
    Courts and scholars have operated on the implicit assumption that the SupremeCourt's "one person, one vote" jurisprudence put redistricting politics on a fixed,ten-year cycle. Recent redistricting controversies in Colorado, Texas, and else-where, however, have undermined this assumption, highlighting the fact that moststates are currently free to redraw election districts as often as they like. This essayexplores whether partisan fairness - a normative commitment that both scholarsand the Supreme Court have identified as a central concern of districting arrangements - would be promoted by a procedural rule limiting the frequency of redistricting. While the literature has not considered this question, scholars generally arepessimistic about the capacity of procedural redistricting regulations to curb partisan gerrymandering. In contrast, this essay argues that a procedural rule limitingthe frequency of redistricting will promote partisan fairness by introducing beneficial uncertainty in the redistricting process and by regularizing the redistrictingagenda.


 
Weatherall & Jensen on Patent Enforcement Kimberlee Gai Weatherall and Paul H. Jensen (University of Melbourne - Faculty of Law and Melbourne Institute of Applied Economic and Social Research, University of Melbourne) have posted An Empirical Investigation into Patent Enforcement in Australian Courts (Federal Law Review, Vol. 32, No. 2) on SSRN. Here is the abstract:
    The effectiveness of patent protection depends not only on the existence of patent laws on the books, but also on the ability to enforce the rights granted by those laws. In recent years, there has been concern expressed in Australia that courts are providing inadequate protection for patent owners: that they are anti-patent. We argue that there are two fundamental problems with this line of argument. The first is that although it is essentially an empirical issue, the debate has largely been based on anecdotal evidence provided by vested interest groups. Second, many existing studies are critical of the observed low levels of success in patent litigation disputes without properly recognizing that a patent does not provide any guarantee of validity if challenged in a court of law. Given the selection bias, only those cases where validity is highly questionable may actually make it to court. To incorporate these issues into the debate, we have created and analysed a database of all patent enforcement decisions (on both validity and infringement) of Australian courts for the period 1997-2003. We report descriptive statistics on patent litigation including detailed information on the duration of such litigation. Our analysis indicates that, in line with theoretical predictions, patent owners are more likely to have at least some of their claims upheld in both validity and infringement determinations than they are to lose all of their claims.
I was especially pleased to find this paper. Kim Weatherall is the author of Weatherall's Law, a terrific blog that focuses on IP law with an Australian twist. Download it while its hot!


 
Conference Announcement: Toward a History of Women's Political Thought
    TOWARD A HISTORY OF WOMEN'S POLITICAL THOUGHT: 1400-1800 Melbourne, Australia, 10-13 July 2005 Details about the conference, including the registration form, a preliminary programme, and a list of abstracts can be found on our website: http://www.arts.monash.edu.au/phil/events/women Keynote speakers include Hilda L. Smith, University of Cincinnati; Sarah Hutton, Middlesex University; Patricia Springborg, Free University of Bozen, Bolzano/University of Sydney; and Ariane Bergeron-Foote, L'Ecole Pratique des Hautes Etudes. The conference organisers are Dr Karen Green and Dr Jacqueline Broad, in the School of Philosophy and Bioethics, Monash University, with funding from the Australian Research Council. Any questions, please email us at Karen.Green@arts.monash.edu.au or Jacqueline.Broad@arts.monash.edu.au.


Monday, May 09, 2005
 
Monday Calendar
    The Aristotelian Society, London: Monique Canto-Sperber, The Normative Conditions of the Cosmopolitan Ideal
    Oxford Moral Philosophy Seminar: Marc Fleurbaey, Pau, Approaches to Responsibility-Sensitive Egalitarianism.


 
Conference Announcement: Concepts, Theories, and Moral Practices
    Concepts, Theories and Moral Practice at K.U.Leuven Thursday May 19
      Opening Lecture 18.00 Respect for Autonomy: Is the Principle Relatively Absolute? Prof. Dr. Tom Beauchamp Thursday May 26 Chairman: Prof. Dr. Toon Vandevelde (K.U.Leuven) 9.30 Welcome Prof. Dr. Andre Van de Putte, Dean Faculty of Philosophy (K.U.Leuven) 9.40 Defining Paternalism Prof. Dr. Gerald Dworkin (University of California, Davis) 11.00 Coffee Break 11.30 A Bridge over Troubled Water: Autonomy nd Paternalism Drs. Thomas Nys (K.U.Leuven) 12.45 Break 14.00 Informed Consent and the Grounds of Autonomy Prof. Dr. David Archard (Lancaster University) 15.15 Coffee Break 15.45 How to Deal with Autonomy and Dependence? A Defence of Careful Solidarity Dra. Yvonne Denier (K.U.Leuven) Beyond Autonomy and Paternalism
    Friday May 27
      Chairman: Prof. Dr. Paul Schotsmans (K.U.Leuven) 9.30 The Transparent Caring Self: Beyond Autonomy and Paternalism Prof. Dr. Eva Feder Kittay (Suny at Stony Brook, New York) 10.45 Coffee Break 11.15 Is Autonomy Relevant in Psychiatry? Prof. Dr. Eric Matthews (Aberdeen University) 12.30 Break 13.30 Autonomy as a Problem for Clinical Ethics Prof. Dr. George Agich (Bowling Green State University, Ohio) 14.45 Coffee Break 15.00 Authority and Influence in the Psychotherapeutic Relationship Dr. Heike Schmidt-Felzmann (National University of Ireland, Galway) 16.15 General Discussion & Conclusion Prof. Dr. Herman De Dijn (K.U.Leuven) 17.00 End of the Conference


 
Choper & Yoo on the 11th Amendment Jesse H. Choper and John C. Yoo (University of California, Berkeley - School of Law (Boalt Hall) and University of California at Berkeley School of Law) have posted Who's So Afraid of the Eleventh Amendment (Columbia Law Review, Vol. 105, 2005) on SSRN. Here is thea abstract:
    This Article argues that critics have exaggerated the impact and importance of the Eleventh Amendment cases. This is not to deny that revived judicial security for states' rights has become the signature issue of the Rehnquist Court. We examine whether the subject deserves the enormous importance that many, including a number of commentators and several Justices, have given it. We conclude that it does not. A series of doctrines, both internal and external to the Eleventh Amendment, allow the federal government to achieve its policy objectives. Preventing private plaintiffs from suing states for retrospective money damages poses at most a minor barrier to national goals when damages actions against state officers and injunctive actions realistically against state governments are readily available to accomplish all federal ends, and when the national political branches may widen the liability of state officers, or completely overcome sovereign immunity by joining a private lawsuit or using other federal powers such as the Spending or Treaty Clauses. Overstatement of the effects of the Eleventh Amendment cases has obscured more interesting questions about the subject. If state sovereign immunity has such little practical effect, why has the Court invested so much of its time and resources in the Seminole Tribe line of rulings? We suggest that the Court's real lodestar here is not federalism, but separation of powers. That is, perhaps the Court is not so much interested in protecting states as it is (a) in centralizing the enforcement of federal law in the executive branch and (b) in pressing Congress to make clear cost-benefit decisions on the use of lawsuits to enforce federal policy. Seminole Tribe and its progeny have the effect of giving the administration greater discretion to decide whether states should be liable for money damages for violations of federal law, thus increasing democratic accountability, and of prodding the legislative branch to essentially pay the states to waive sovereign immunity.


 
Ruhl on Regulation by Adaptive Management J.B. Ruhl (Florida State University College of Law) has posted Regulation by Adaptive Management - Is it Possible? (Minnesota Journal of Law, Science & Technology, Vol. 7) on SSRN. Here is the abstract:
    The history of environmental law provides as good an example as any other field in regulatory law of how successful prescriptive regulation has been at meeting public policy objectives, but how difficult it will be to extend that experience much farther into the future. For decades so-called "command and control" regulation has picked the low-hanging fruit—in environmental law, for example, it has gone after emissions from smokestacks and discharge pipes, disposal of wastes in landfills, transportation of hazardous chemicals, and similar discrete, easily-identified sources of environmental harm. The future that lies ahead for most fields of regulation, however, is filled with problems of unwieldy dimensions and intractable causes. In environmental law, for example, the problems that are foremost to many observers include the invasion of non-native species into ecosystems, the depletion of estuarine resources by fertilizer runoff from countless agricultural operations hundreds to thousands of miles inland, the degradation of habitat from suburban "sprawl," and the evidence of climate change, which itself is irrefutable even if its causes are not. In this brand of environmental policy challenge, there are no discrete sources or clearly traced lines of causation. Rather, problems such as these exhibit the hallmark characteristics of complex adaptive systems. Their behavior emanates from a multitude of diverse, dispersed sources responding to co-evolving interactions, feedback loops, and nonlinear cause-and-effect properties. They are, to put it simply, excruciatingly hard for researchers to understand, and thus even harder for law to wrestle under control. This kind of policy problem thus confounds the prescriptive regulation model, because there are no readily available targets for the prescriptions and, even worse, we have no idea what response the system would exhibit to any particular command. Even if legislatures armed them with unlimited powers, administrative agencies could not simply command away invasive species, or farm runoff, or new rooftops, or global climate change. There is almost universal agreement that problems of this sort demand new approaches to regulation. Agencies thus have experimented with many alternatives to prescriptive regulation, including market-based programs, information-based programs, negotiated project-specific licensing, ecosystem-scaled land management programs, multi-party collaborative planning efforts, and government-private quasi-partnerships. To take advantage of their inherently adaptive qualities, however, these regulatory instruments must themselves be managed adaptively. It will do no good, in other words, to hand an agency a market-based program only to have the agency administer the program through centralized decision making. Nor is likely that the now dominant public land use theme of ecosystem management, which focuses on landscapes and ecosystem dynamics rather than discrete media or species, can successfully be implemented through decision making that relies on reductionist, linear models of how "parts" of ecosystems function. Not only must the instruments of regulation be transformed, therefore, but so too must the methods of regulation. Hence it is almost universally the case that advocates of regulatory innovations also advance the method of implementation known generally as adaptive management. The voluminous literature that exists today to describe what adaptive management means traces its roots to Professor C.S. Holling's seminal work in the field, Adaptive Environmental Assessment and Management. Although almost 30 years have passed since he and his colleagues first described the adaptive management methodology, no work on the topic since then has improved on their core theory, and far be it from me to try where so many others have failed. Its essence is an iterative, incremental decision-making process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly. It is, in other words, far more suited to the needs of future regulatory challenges than is prescriptive regulation. On the one hand, nothing about this is startlingly new or unusual as a general means of decision making—businesses implement adaptive management all the time, or they perish. Ironically, however, the puzzle is whether administrative agencies can behave adaptively and survive. As a leading proponent of adaptive management once observed, agencies "have not often been rewarded for flexibility, openness, and their willingness to experiment, monitor, and adapt." The deterrents to these core attributes of adaptive management come from three fronts: legislatures, the public, and the courts. In short, in order for adaptive management to flourish in administrative agencies, legislatures must empower them to do it, interest groups must let them do it, and the courts must resist the temptation to second-guess when they do in fact do it. The track record of administrative law from the era of prescriptive regulation suggests that none of these three institutional constraints will yield easily. Quite simply, there is good reason to doubt whether regulation by adaptive management is possible without substantial change in the administrative law system. In this Article I explore the concern just raised using the example of the Endangered Species Act’s (ESA) Habitat Conservation Plan (HCP) program. Part I of this Article briefly provides the general background of interest - the potential for collision between adaptive management theory and administrative law institutions - to more firmly illustrate the nature of the problem. Part II then grounds the topic in a real-world context through the story of the HCP program. Although Congress appears to have hoped that the HCP program would promote adaptive management of imperiled species, its delegation of authority to FWS was an imprint of prescriptive regulation. Nevertheless, during the 1990s, while Congress was functionally inert on reform of the ESA despite much reform rhetoric, FWS essentially reinvented the program through administrative reform in the mold of adaptive management. Soon, however, citizen groups representing environmental protection interests responded with vociferous and litigious opposition to reform, ultimately bearing down on the agency's injection of "flexibility" in the program through repeated lawsuits challenging HCP permits. With few (but notable) exceptions, the courts were all too quick to pounce as well, stifling the agency's willingness to experiment. The result could be one of the tragedies of environmental and administrative law - today, the HCP program increasingly resembles a plain vanilla regulatory program, functional on that level but increasingly stripped of its once promising adaptive qualities. One can only hope this is not a harbinger for the future of adaptive management in general, for if it is, regulation by adaptive management will not be possible.


 
Richman & Boerner on a Transaction Cost Approach to Regulation Barak D. Richman and Christopher Boerner (Duke University School of Law and Genentech, Inc.) have posted A Transaction Cost Economizing Approach to Regulation: Understanding the NIMBY Problem and Improving Regulatory Responses (Yale Journal on Regulation, Vol. 22, No. 1, Winter 2005) on SSRN. Here is the abstract:
    This paper develops a transaction cost economic model for regulation and applies the model to environmental siting regulations designed to overcome NIMBY (Not In My Back Yard) political opposition. Negotiations between developers and resistant local communities to site waste facilities, such as landfills or solid waste incinerators, can be characterized as a contracting problem. A rudimentary application of the Coase theorem suggests that developers should be able to compensate communities adequately for hosting a waste facility, but rarely do such negotiations find success. Transaction costs associated with the requisite negotiations, communication, and implementation of the projects preclude efficient bargaining, and thus NIMBY opposition halts the siting of socially necessary and beneficial facilities. Viewing NIMBY disputes as a contracting problem within the world of positive transaction costs therefore reveals the dynamics that foil negotiations between developers and communities. Such a perspective also identifies the role that the theory of the firm can play in understanding how siting regulations overcome those transaction costs and how regulatory regimes can be optimally designed for siting alternative facilities. This paper employs the theory of the firm, specifically transaction cost economics, to articulate the functional purpose of environmental siting regulations and to chart an agenda for regulatory reform. While transaction cost economics traditionally compares mechanisms such as spot markets, contracts, and direct ownership to facilitate economic transactions, we extend transaction cost theory to political transactions between policymakers and initially resistant, though potentially supportive, constituencies. We believe this approach offers a fruitful perspective on regulatory policy. We use it to develop a taxonomy of alternative regulatory regimes and then to propose an overview of regulatory reform for siting socially desirable waste facilities that are either blocked by NIMBY opposition or are unnecessarily shielded from effective negotiations and community participation.


 
Solan on the New Texualism Lawrence M. Solan (Brooklyn Law School) has posted The New Textualists' New Text (Loyola of Los Angeles Law Review, 2005) on SSRN. Here is the abstract:
    The past two decades have seen a polarized debate in both the courts and legal academic literature between those who regard themselves as textualists on the one hand, and those who advocate for courts using a broader range of evidence on the other. Gone largely unnoticed in the battles between these camps during the past quarter century is the fact that both sides in the debate agree upon almost everything when it comes to statutory interpretation. Most of whom textualists call "intentionalists" are really not that at all. Rather, they take a pragmatic, eclectic approach to the interpretation of statutes. By the same token, textualists do not eschew all context in the interpretation of statutes, as a cartoon-like description of the approach may suggest. To the contrary, proponents of both approaches find no difficulty looking at the earlier interpretive decisions of courts, background assumptions shared by the relevant community, constitutional considerations, questions of coherence with related statutes, and a host of other considerations. Only some context disturbs textualists, i.e. legislative history adduced as evidence of legislative intent, which they regard as an illegitimate. Recent writings from textualists explain how textualism can lead to results in disputed cases that are sensitive to a statute’s purpose without resorting to extratextual materials that create both evidentiary and conceptual difficulties. By adopting an enriched approach to language as an initial matter, a view that considers context an important element of how we speak and understand language generally, textualist practice is able to internalize a great deal of contextual information while at the same time maintaining procedures less likely to lead courts into a decision-making process that conflicts with basic values such as separation of powers. The key intellectual decision is to focus on the ordinary meaning of statutory words, rather than on their plain meaning, as found in dictionary definitions. The shift from focusing on dictionaries to ordinary usage should be seen as an additional step toward reconciling textualist methodology with the goal of providing an interpretation that reflects a statute’s purpose. If so, it is worth asking how well it achieves this goal. This Article argues that in many circumstances it does so very well. Nonetheless, there are several recurring situations in which the textualist effort falls short, even on its own terms.
Solan has an important point!


Sunday, May 08, 2005
 
Legal Theory Calendar
    Monday, May 9
      The Aristotelian Society, London: Monique Canto-Sperber, The Normative Conditions of the Cosmopolitan Ideal
      Oxford Moral Philosophy Seminar: Marc Fleurbaey, Pau, Approaches to Responsibility-Sensitive Egalitarianism.
    Tuesday, May 10
      University of Edinburgh, The Centre for Law and Society: COLLOQUIUM: "On the Disaggregation of Public law and Political Theory"
        Main Speaker
          Frank Michelman (Harvard)
        Respondents/Discussants:
          Zenon Bankowski Emilios Christodoulidis Stephen Tierney (Edinburgh) Johan van der Walt (RAU Johannesburg, S. Africa) Adam Tomkins (Glasgow) Ioannis Tassopoulos (Athens) Colin Warbrick (Durham)
      Oxford Juirsprudence Discussion Group: Nkiruka Ahiauzu, Multiple Principles and the Obligation to Obey the Law.
      Oxford, The 2005 Uehiro Lectures: Professor Tony Coady (Melbourne), 'Messy Morality: Moralism, Realism and Political Violence.'
      Oxford, The H.L.A. Hart Memorial Lecture: Owen Fiss, The War on Terrorism and the Rule of Law.
      Oxford, The Okham Society: Carsten Nielsen (University of Århus). 'Moral Absolutism Defended.'
      Oxford, The Okham Society: Ian Phillips (Magdalen College). 'Intentionalism and Experience.'
      University of Chicago, Law & Economics: Andrei Shleifer, Whipple V. N. Jones Professor of Economics, Harvard University, The Evolution of Precedent.
      University of Texas School of Law: Sam Buell, Visiting Professor, UT Law, "White Collar Mistakes".
      Oxford, The Okham Society: Arto Laitinen (University of Jyväskylä). 'Moral Particularism and the Intelligibility Requirement.'
    Wednesday, May 11
      Florida State University College of Law: Amitai Aviram, FSU, The Placebo Effect of Law.
      Oxford, The 2005 John Locke Lectures: Professor E. Sosa (Brown University and Rutgers University). 'Apt Belief and Reflective Knowledge.'
    Thursday, May 12
      University of Edinburgh, The Centre for Law and Society: Michel Seymour (Department of Philosophy, Université de Montréal), "Allen Buchanan and the remedial right of secession" Centre for Law and Society.
    Friday, May 13


 
Legal Theory Lexicon: Functional Explanation in Legal Theory
    Introduction In a prior installment of the Legal Theory Lexicon, we explored the difference between Positive and Normative Legal Theories. Positive legal theory attempts to explain and predict legal behavior, especially the content of legal rules. Normative legal theory makes claims about what those rules should be. This week's post is about an important and familiar concept in positive legal theory--the idea of a functional explanation.
    Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." Or, "The rule is that way, because that is the efficient rule, and common law adjudication selects for efficient rules." In other words, the content of the rule is explained (causally) by the function the rule serves.
    The Idea of a Functionalist Explanation Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their feathers or why the elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacock's and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently.
    In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates.
    Functionalist Explanation in the Social Sciences Functionalist explanations are not limited to biology. Sociologists frequently explain social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress. There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that some functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution, so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior.
    Functionalist Explanations in Legal Theory And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:
      Marxist Explanations of Law--Marxist social theory relies heavily on functionalist explanation in general, and so it is not surprising that many Marxist explanations of law are functionalist in nature. "The law is such and such, because that rule serves the interest of the capitalist class." "Feudal law governing rights in land gave way to modern property law with free alienability, because that change was required by the transition from the feudal mode of production to the capitalist mode of production."
      Legal Evolution Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support.
      Efficiency Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes.
    Microfoundations When you are thinking about particular functionalist explanations in positive legal theory, it is particularly helpful to ask the question whether the explanation has "microfoundations." That is, does the functionalist explanation for a particular legal rule (or change in legal rules) incorporate a specific account of the causal mechanism by which the function caused the rule or change. It is always possible that a particular functionalist explanation is true, even if microfoundations cannot be provided, but the absence of causal mechanisms is a reason to be suspicious.
    For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx. And for an equally brilliant defense of functionalist explanations, consult G.A. Cohen's Karl Marx's Theory of History. (The debate between Cohen and Elster is one of the most interesting and important debates in contemporary philosophy of the social science.)
    Conclusion Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad.


Saturday, May 07, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Political Liberalism by John Rawls. Rawls was the greatest political philosopher of the twentieth century, and this book summarizes his mature thought--providing systematic statements of many important ideas, includ "overlapping consensus," "the fact of pluralism," "political constructivism," and "public reason." It belongs in the library of every serious legal theorist. If you don't already own a copy, buy the most recent paperback edition. (This book comes in three different versions--with slightly different content in each one.). Here is a blurb:
    With the publication of his first book, A Theory of Justice ( LJ 4/1/72), Harvard philosopher Rawls catapulted himself into the first rank of contemporary political philosophers. His difficult and rewarding book offered an ingenious defense of the "social contract" as binding society together in the interests of not only justice but fairness. With Political Liberalism , his second book, Rawls responds to his critics by confronting the dilemmas inherent in developing a liberal theory of the good society that acknowledges cultural diversity and ethical pluralism. His approach is to "describe the steps whereby a constitutional consensus on certain principles of basic political rights and liberties and on democratic procedures become an overlapping consensus." Not all readers will be satisfied by his solution, but they will be dazzled by his clarity of purpose and logic. Highly recommended for academic libraries. - Kent Worcester, Social Science Research Council, New York
Although Political Liberalism is controversial, I think this is a mangificient achievement. Rawls's mature thought introduced important new ideas that will have the kind of enduring value that is truly rare in even the best philosophical work. "Highly recommneded" doesn't begin to express by admiration for the book.


 
Download of the Week The Download of the Week is The Disintegration of Duty by Ernest J. WeinribHere is the abstract:
    Throughout the common law world there is no liability for negligence unless the defendant breached a duty of care owed to the plaintiff. But when is such a duty owed? In the foundational judgment of English negligence law in 1932, Lord Atkin asserted that "there must be, and is, a general conception of relations giving rise to a duty of care." Lord Atkin thereby gave expression to the view that the law cannot treat the collection of duties as a chaotic miscellany of disparate norms. Rather, the systematic nature of legal norms requires both that all duties of care be thematically unified through the same underlying principle and that each particular duty be internally coherent. More recently, however, courts seem to have given up on the attempt to formulate or appeal to a general conception of duty and have returned to the multiplicity of particular duties that Lord Atkin deplored. This has caused a "disintegration of duty" in two senses. The entire ensemble of duties is no longer regarded as a coherent set, and each particular duty is fragmented into factors that separately determine the duty's ground and limits. The general conception of the duty of care - its theoretical basis, its structural constituents, its more recent disintegration back into particular duties, and the need to recapture what a general conception of duty implies - is the subject of the present essay. Taking corrective justice as the theoretical notion underlying Lord Atkin's insistence on a general conception of duty, this essay discusses the disintegration of duty in the following steps. It first shows through an analysis of the landmark cases of the twentieth century how duty fits with other negligence concepts (failure to exercise reasonable care, factual causation, and proximate cause) to connect the defendant's act to the plaintiff's injury in a normatively coherent way. It then sets out the internal structure of the duty of care, that is, what its constituents must be if it is to reflect a coherent conception wrongdoing. These constituents make up "the general conception of relations giving rise to a duty of care" that Lord Atkin sought. The essay then examines the two-stage test for negligence that is used in Canada and other jurisdictions, arguing that this internally fractured test is inadequate for the development of a coherent jurisprudence of negligence. Finally, the essay discusses the meaning and relevance of the much-invoked "policy" for the determination of the duty of care, concluding that the coherence of its underlying justifications is itself the supreme policy of the law of obligations.
Weinrib is one of the most distinctive voices in contemporary legal theory!


Friday, May 06, 2005
 
Sunstein & Barnett on the Constitution in Exile--the Debate Concludes I'm sure that many readers of LTB have been following the debate between Cass Sunstein and Randy Barnett on "The Constitution in Exile". The last two installments appear today. Sunstein returned to his opening theme:
    There is a genuine Constitution in Exile movement, in the form of an effort to make radical revisions in constitutional understandings to recover some "lost" document. For two decades and more, a number of people, parsing text and mining history, have claimed that the Constitution requires a set of identifiable outcomes: It invalidates some or many affirmative action programs, campaign finance reforms, gun control laws, environmental laws, congressional grants of standing to ordinary citizens, and restrictions on commercial advertising. It contains no right of privacy. It invalidates independent agencies, forbids regulatory agencies from exercising broad discretionary power, and bans many post-New Deal exercises of congressional power. It might even throw civil rights laws into question.
And Barnett responded:
    Why has the phrase, "Constitution in Exile"—plucked from the obscurity of a book review by Doug Ginsburg—suddenly become the topic of a New York Times Magazine cover story and the label for what you today re-assert "is a genuine Constitution in Exile movement"? The real issue lying behind this rhetoric is the likelihood that the current President will appoint two or more Justices to the Supreme Court. Should the President choose to nominate a distinguished originalist, such as your former colleague and now-Judge Michael McConnell, we will witness the most extraordinary public debate about constitutional theory since the confirmation hearings of Robert Bork. At the center of that discussion will be originalism. Our conversation has demonstrated that the effect of talking about a "Constitution in Exile" is to obscure rather than illuminate the terms of this debate. I fear that this rhetorical shift aims to evade genuine intellectual and political discourse about the merits of originalist jurisprudence by raising a red herring about a fictitious and ill-defined movement or conspiracy to restore the constitutional doctrines of 1930 or 1920. Our interchange this week has been productive, in part, because it has refocused the discussion on the real choice before us: Should judges follow the text of the written Constitution in light of evidence about its original public meaning or should they ignore that meaning to translate their fundamental values or beliefs about how government should be arranged into constitutional law?
I've been generally impressed with the quality of the discourse. As usual, Sunstein makes many interesting points, but I wonder whether the thesis that there is a "constitution-in-exile movement" can really be taken seriously. The real issue seems to be about originalism--and the possible appointment of originalist judges to the Supreme Court. On that score, the debate has been helpful, although it would have been illuminating if Sunstein had defined the nonoriginalist alternative with enough specificity to permit a meaningful comparison. It is very hard to compare a constitutional theory (originalism) with some vague notion of the status quo (constitutional doctrine as it is today). Any principled approach to constitutional interpretation--with one important exception--is likely to imply major revisions in constitutional doctrine. As readers of LTB know, my own views on constitutional interpretation are formalist, but unlike some other textualists, I have argued for a very strong form of the doctrine of stare decisis. A key issue in the upcoming confirmation debates will surely be the role of precedent--a topic that Barnett & Sunstein touched on only briefly. Surf on over to Legal Affairs and read the whole thing!


 
Perry on Human Rights & the Death Penalty Michael J. Perry (Emory University School of Law) has posted Capital Punishment and the Morality of Human Rights (Journal of Catholic Legal Studies, 2005) on SSRN. Here is the abstract:
    According to the morality of human rights, every human being has inherent dignity and is inviolable. In a paper I posted on SSRN last month, I inquired whether there is a nonreligious ground for the morality of human rights. Here is the URL for that paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=685550 In this paper, I pursue the implications of the morality of human rights for the issue of capital punishment. Should we who affirm the morality of human rights, because we affirm it, want the law to protect human beings from - by giving them a right to be free from - capital punishment. One of the most prominent and powerful voices against capital punishment in recent years was that of Pope John Paul II, whose position was more radical - more oppositionist - than than the official position of the Roman Catholic Church. In this paper, I present John Paul II's position and then explain why I am unable to embrace it. I then present an alternative position - an alternative reason why we who affirm the morality of human rights should oppose capital punishment. This paper, which was the basis for a lecture I presented at St. John's University on October 13, 2004, is drawn from a book-in-progress, tentatively titled HUMAN RIGHTS AS MORALITY, HUMAN RIGHTS AS LAW.
Perry is one of the most passionate and interesting writers about human rights!


 
Friday Calendar


 
French on Common Interest Communities Susan Fletcher French (University of California, Los Angeles - School of Law) has posted Making Common Interest Communities Work: The Next Step (Urban Lawyer, Vol. 37, Summer 2005) on SSRN. Here is the abstract:
    A large and growing portion of the housing stock of America is located in common interest communities governed by owner associations. As they have become more prevalent, the legal challenges they present have become more apparent. These challenges begin with ascertaining the legal nature of common interest community associations, which occupy a space that lies somewhere between public governments, on the one hand, and private businesses or private associations on the other. After listing some of the respects in which community associations are like and unlike these well-established legal entities, I conclude that they are different in important respects. Because of these differences, a new body of law - community association law - is developing. After discussing the protections afforded association members against illegal or abusive board conduct, I conclude that more needs to be done because the existing framework requires resort to the courts, which is costly, divisive, and risky due to the loser-pays attorney fees provision found in most CC&Rs. I conclude that states should provide administrative support for community association governance with education, dispute resolution, and enforcement services. Common interest communities have become too important to leave to their own resources and the judicial system. There is much that states can do and there are several models of successful programs. They should take the next step.


 
Wilkins on Sander David B. Wilkins (Harvard University - Harvard Law School) has posted A Systematic Response to Systemic Disadvantage: A Response to Sander (Stanford Law Review, June 2005) on SSRN. Here is the abstract:
    In a recent article in the Stanford Law Review, Professor Richard Sander argues that law schools should dramatically reduce or eliminate their affirmative action policies for black applicants because these policies harm rather than help their intended beneficiaries. Although Sander presents many troubling statistics about black performance in law school and on the bar exam, his core claim that blacks are harmed by affirmative action rests on the counterintuitive assertion that blacks who attend more highly ranked law schools because of such policies are hurt more by the lower grades that they are likely to receive at these institutions than they are helped by the benefits of graduating from a more prestigious institution. In a Response that will also be published in the Stanford Law Review, I argue that the evidence Sander proffers does not come anywhere close to proving that most black lawyers would be better off in a world in which the vast majority of them would attend law schools 20-50 places below the ones that they currently attend, and where hundreds of blacks who currently attend law school today would be denied the opportunity to do so altogether. Affirmative action has played a crucial role in helping black lawyers to overcome the systematic and persistent obstacles that continue to make it more difficult for these new entrants to succeed notwithstanding the progress the country has made in reducing the overt discrimination that for the first two centuries of our history kept blacks out of virtually every desirable aspect of American society. Indeed, it is precisely because these policies have been so successful that for the first time blacks with high grades from lower- status schools have a plausible chance of gaining entry into high-paying positions in the legal profession. These tentative gains, however, are unlikely to continue if the number of black graduates from highly-ranked schools were to decline dramatically. Although the picture is more complex with respect to those black students who are unlikely to end up in high-status jobs, they too have benefited more from affirmative action than Sander's analysis suggests. Equally important, the problems those in this group undoubtedly confront have as much to do with the way that bar exams are conceived and administered as they do with these students' potential to become competent practitioners. The argument proceeds in four parts. Part I briefly reminds us of the long and sorry history of exclusion that gave rise to the need for affirmative action in the first place and examines how this legacy continues to disadvantage black lawyers. Part II examines Sander's contention that grades are more important than law school status in the context of black graduates from highly-ranked schools. Contrary to Sander’s assertion, black lawyers in this group gain benefits from their prestigious degrees that extend far beyond the starting salaries that they receive upon graduation. In turn, these fledgling members of the profession's elite provide important benefits to all black lawyers - and to society as a whole. Part III examines those black lawyers who appear to have benefited the least from affirmative action: those who attend lower-tier local and regional law schools. Although Sander makes a persuasive claim that these students face daunting risks in pursuing a career in law, a significant number plausibly benefit from their legal education, even if they do not go on to become lawyers. Moreover, given that bar passage is the most important obstacle facing blacks in this group, we can gain as many new black lawyers by reforming the way that such exams are administered and taken as Sander claims will result from eliminating affirmative action. Part IV briefly concludes by arguing that, rather than improving conditions for black lawyers, Sander's proposal runs the risk of making many of the problems he identifies worse.


 
Stone on Human Capital Katherine Van Wezel Stone (University of California, Los Angeles - School of Law) has posted Thinking and Doing - The Regulation Of Workers' Human Capital in the United States (Socio-Economic Review, Vol. 3, September 2005) on SSRN. Here is the abstract:
    The ownership of human capital has become a hotly contested issue in the United States. Covenants not to compete are widely used in the American workplace and the source of an enormous volume of litigation. Trade secret disputes are also widespread. The issues raised by these cases are not new, but they are arising with increasing frequency and are posed in a new way. The new focus on workers' human capital is a result of the fact that, in the past two decades, the employment relationship has changed from one in which workers' knowledge about production was devalued to one in which it is highly prized. This change in the nature of the employment relationship has many far-reaching implications for many aspects of employment regulation, of which the ownership of human capital is high on the list. This article examines the current disputes and legal trends concerning the issue of who owns the workers' human capital from an historical perspective. It begins with a review of the regulation of employee human capital in earlier employment systems and a description of the new employment relationship. It then discusses the current controversies and changing legal framework governing the ownership of human capital to show that the law is out of step with the changes in the nature of work. Part III proposes an approach that is consistent with the implicit promises and understandings that underlie the new employment relationship.


Thursday, May 05, 2005
 
Spiegel on Procedural Neutraility Mark Spiegel (Boston College - Law School) has posted The Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules. Here is the abstract:
    This article discusses the controversy regarding neutral procedural rules. It focuses on the claim that the 1983 version of Rule 11 had a disproportionate impact upon civil rights cases, thereby violating the norm of procedural neutrality. By looking at this claim about the impact of Rule 11 on civil rights cases, we can evaluate whether the 1983 version of Rule 11 violated the norm of procedural neutrality, and also understand the different ways that the concept of procedural neutrality is used. This exploration will help us understand the larger debate regarding the neutrality of procedural rules and to make connections to similar debates in other areas of law, particularly constitutional law.
I really enjoyed this paper--but I disagree with a fundamental assumption. Spiegel argues that the standard for procedural neutrality should be impact or effect. But surely that is not correct. Disproportionate impact, per se, is prefectly consistent with procedural neutrality. To see that this is so, we need only consider some noncontroversial ways in which procedural rules have disproprotionate impact. For example, code (or fact) pleading favors claims where the facts are known to the plaintiff--contract claims, for example--and disfavors claims where the facts are in the control of the defendant--securities fraud claims, for example. But this doesn't make fact pleading nonneutral or unfairly biased. Certainly, the pleading rules are trans-substantive: code pleading rules require that you plead facts corresponding to each element of your claim irrespective of the nature of the claim. What we should worry about not disparate impact on claims but disparate introduction of distortion or inaccuracy--not the same thing. If you are interested in the theory of procedure, you will want to read this article.


 
Garnett on Religious Freedom Richard W. Garnett (University of Notre Dame - Law School) has posted Changing Minds: Proselytism, Religious Freedom, and the First Amendment (University of St. Thomas Law Journal, 2005). Here is the abstract:
    Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years[.] What’s more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul II and on a salient theme in the law interpreting the Free Speech Clause of the First Amendment. Running through and shaping our First Amendment doctrines, precedents, and values is a solicitude for changing minds - our own, as well as others'. Put differently, the Amendment is understood as protecting and celebrating not just expression but persuasion - or, if you like, proselytism. There are, therefore, reasons grounded in our Constitution and traditions for regarding proselytism and its legal protection not as threats to the common good and the freedom of conscience, but instead as integral to the flourishing and good exercise of that freedom. This same solicitude for persuasion and freedom pervades the writing of Pope John Paul II, who regularly insisted that the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons.
And here is a bit more from the article:
    I want to propose that at the heart of the Free Speech Clause, and high on any list of its influences and animating values, should be a special concern for a particular human activity, namely, changing minds. The Clause is not so much “about” one’s Whitman-esque “barbaric yawp” but rather advocacy, and persuasion, and conversion. The paradigmatic First Amendment enterprise, therefore, is not self-projection or pop-psychology-style actualization, but is instead a complex and dynamic transaction in which what is taken to be true is proposed by the one, and then accepted or rejected by the other, thereby changing or transforming him in some meaningful way. Intellectual gadfly Stanley Fish has observed that “when one person speaks to another person, it is usually for an instrumental purpose: you are trying to get someone to do something, you are trying to urge an idea and, down the road, a course of action. These are the reasons for which speech exists. . . . In any normal situation you speak for a reason: to inform, to command, to acquiesce, to ask a question, to further an agenda, to close an agenda down.” This seems right. The claim here, though, is not simply about speakers’ motivations, but about the normative and other justifications for protecting the freedom of speech that shape the interpretation and application of the First Amendment.
Highly recommended!


 
Book Announcement: The Qualities of a Citizen
    The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870-1965 Martha Gardner To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/7953.html The Qualities of a Citizen traces the application of U.S. immigration and naturalization law to women from the 1870s to the late 1960s. Like no other book before, it explores how racialized, gendered, and historical anxieties shaped our current understandings of the histories of immigrant women. Cloth | $35.00 / £22.95 | ISBN: 0-691-08993-0


 
Book Announcement: Insincere Promises by Ayres & Klass
    In their new book, "Insincere Promises", Ian Ayres and Gregory Klass provide the first exhaustive analysis of the oft-litigated, but rarely discussed doctrine of promissory fraud. Under the classic definition, a party to a contract commits promissory fraud if, at the time of formation, she does not intend to perform, the idea being that to make a promise is to represent implicitly such an intent. The book begins with an analysis of the meaning of promises, and argues that the law is correct in recognizing the multiple semantic dimensions of the single speech act. Not only do promises create obligations (in Austin’s terms, their "performative" force), but a promise typically represents something to be the case. Most promises represent that the promisor intends to perform, and some say, implicitly or explicitly, still other things about the likelihood of performance. The book argues that basic principles of contract law recommend legal liability when these representations are false, but also that the prevailing doctrine is wrong to assume that every promise represents the same thing. Most significantly, not all promises represent an intent to perform. Ayres and Klass also provide extensive discussions of evidentiary issues in promissory fraud cases, of related forms of misrepresentation (e.g., vaporware and bait-and-switch), and of criminal liability for false promise, as well as suggesting materials for teaching promissory fraud.
And here is a blurb from Katherine Stone:
    “Insincere Promises is a must-read for law teachers, law students, and anyone else interested in the law of contracts or torts. The authors traverse the forbidding and tangled landscape of the law of deceit, manipulation, mistake, and accident, demonstrating how the oft-overlooked topic of promissory fraud implicates central issues in the law of contract,tort, and crime. It is clearly written, intelligently presented, and highly original.”


 
Closing the Entry Level Hiring Report Data Collection Phase New reports have essentially stopped, so I am going to stick to my plan & close this out next week. If you can report on entry-level hires or verify that a school has not made any such hires, please email me at lsolum@gmail.com. The current version of the report can be found here.


 
Colker & Scott's Empirical Ananalysis of Rehnquist & Federalism Ruth Colker and Kevin M. Scott (Ohio State University College of Law and Ohio State University - Department of Political Science) have posted Rehnquist and Federalism: An Empirical Perspective (THE REHNQUIST LEGACY, Craig Bradley ed., Cambridge University Press, 2006) on SSRN. Here is the abstract:
    We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist demonstrates the respect for the balance between state and federal governments which he has articulated in so many of his opinions. We generally find support for the proposition that Chief Justice Rehnquist adheres to the tenets of federalism. We conclude that, while there is an ideological component to Chief Justice Rehnquist's jurisprudence, there also appears to be evidence of a sincere commitment to the protection of the line between national and state governments.


 
Weinrib on Duty Ernest J. Weinrib (University of Toronto - Faculty of Law) has posted The Disintegration of Duty (EXPLORING TORT LAW, Stuart Madded, ed., Cambridge University Press, 2005) on SSRN. Here is the abstract:
    Throughout the common law world there is no liability for negligence unless the defendant breached a duty of care owed to the plaintiff. But when is such a duty owed? In the foundational judgment of English negligence law in 1932, Lord Atkin asserted that "there must be, and is, a general conception of relations giving rise to a duty of care." Lord Atkin thereby gave expression to the view that the law cannot treat the collection of duties as a chaotic miscellany of disparate norms. Rather, the systematic nature of legal norms requires both that all duties of care be thematically unified through the same underlying principle and that each particular duty be internally coherent. More recently, however, courts seem to have given up on the attempt to formulate or appeal to a general conception of duty and have returned to the multiplicity of particular duties that Lord Atkin deplored. This has caused a "disintegration of duty" in two senses. The entire ensemble of duties is no longer regarded as a coherent set, and each particular duty is fragmented into factors that separately determine the duty's ground and limits. The general conception of the duty of care - its theoretical basis, its structural constituents, its more recent disintegration back into particular duties, and the need to recapture what a general conception of duty implies - is the subject of the present essay. Taking corrective justice as the theoretical notion underlying Lord Atkin's insistence on a general conception of duty, this essay discusses the disintegration of duty in the following steps. It first shows through an analysis of the landmark cases of the twentieth century how duty fits with other negligence concepts (failure to exercise reasonable care, factual causation, and proximate cause) to connect the defendant's act to the plaintiff's injury in a normatively coherent way. It then sets out the internal structure of the duty of care, that is, what its constituents must be if it is to reflect a coherent conception wrongdoing. These constituents make up "the general conception of relations giving rise to a duty of care" that Lord Atkin sought. The essay then examines the two-stage test for negligence that is used in Canada and other jurisdictions, arguing that this internally fractured test is inadequate for the development of a coherent jurisprudence of negligence. Finally, the essay discusses the meaning and relevance of the much-invoked "policy" for the determination of the duty of care, concluding that the coherence of its underlying justifications is itself the supreme policy of the law of obligations.


 
Charnovitz on the Accountability of NGOs Steve Charnovitz (The George Washington University Law School) has posted Accountability of Nongovernmental Organizations (NGOs) in Global Governance on SSRN. Here is the abstract:
    The issue of the accountability on nongovernmental organizations (NGOs) in global governance has received increased attention in recent years. The purpose of this paper is to analyze the issue, to consider whether any public problems exist, and to make recommendations on what should be done. The paper contains three parts. Part I examines the historical context of NGO accountability starting with the Papal Encylical Rerum Novarum of 1891 and considering episodes relating to the League of Nations and the founding of the United Nations. Part II provides an overview of the contemporary debate on NGO accountability and uses a recent article by Robert Keohane and Ruth Grant as a point of entry. Part III offers my own framework for how to think about the challenge of NGO accountability and suggests that more attention be given to the individual as the unit of analysis. The paper makes recommendations for what should be done to improve NGO accountability and more importantly what should not be done. This paper was prepared for a conference at New York University Law School in April 2005 on the emerging field of global administrative law (GAL).


 
Welcome to the Blogosphere . . . . . . to:


 
McClain on New Democrat Family Policy Linda C. McClain (Hofstra University - School of Law) has posted Clintonism and the Legacy of 'New Democrat' Family Policy on SSRN. Here is the abstract:
    This paper assesses the legacy of President Clinton's family policy from the perspective of what it suggests about New Democrat, or Third Way politics, associated with such organizations such as the Democratic Leadership Council (DLC) and the Progressive Policy Institute. In his 1992 campaign, Clinton elaborated a new social contract, or new covenant, of mutual responsibility: government should afford opportunity to people, who, in return, should take responsibility and adhere to such core values as work, family, and personal responsibility. This rhetorical appeal to values was a successful attempt, by Democratic politicians, to attract voters around themes of values and family - such that they were not the domain only of the Republicans. What is the legacy of Clintonism as it bears on linking family values to family policy? How did candidate Clinton's campaign pledges about a New Covenant for families, pairing opportunity and responsibility, translate into family policies during the two terms of Clinton's presidency? To evaluate President Clinton's family policy, and how it drew on these themes, I focus on three significant pieces of legislation that he signed: the Family and Medical Leave Act, the Personal Responsibility and Work Opportunity Reconciliation Act, and the Defense of Marriage Act. Family leave and welfare reform featured prominently in Clinton's New Covenant. By contrast, Clinton did not campaign for the Defense of Marriage Act, and the bill seemed, on one view, to be at odds with the New Covenant's commitment to address discrimination against gay man and lesbians. But Clinton defended his signing of DOMA as consistent with his philosophy. I evaluate the symbolic and practical significance of these three laws. These laws, with their strengths and weaknesses, continue to shape often-contentious public discourse over the place of families, family values, and how best to strengthen families.


 
Call for Papers: The Jurisprudential Legacy of Pope John Paul II
    Call For Papers The Jurisprudential Legacy of Pope John Paul II On March 23-24, 2006, St. John’s University School of Law and the Journal of Catholic Legal Studies will sponsor a conference on the Jurisprudential Legacy of Pope John Paul II. John Paul II enjoyed a 26-year papacy, during which he exerted great influence on both Catholics and non-Catholics. He made a vast contribution to our understanding of the dignity of the human person and of the Church’s social doctrine, and was passionately committed to social justice and to peace. St. John’s and the Journal of Catholic Legal Studies invite papers exploring the legacy of the Pope on law, politics and culture generally and on the development of Catholic legal theory. Papers presented at the conference will be published in the Journal of Catholic Legal Studies. Paper proposals should be sent by October 1, 2005, to Professor Susan J. Stabile at stabiles@stjohns.edu, or at St. John’s University School of Law, 8000 Utopia Parkway, Jamaica, New York 11439.


Wednesday, May 04, 2005
 
Posner & Vermeule on the Legality of Coercive Interrogation with a Few Comments and Updates Eric A. Posner and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Should Coercive Interrogation Be Legal? on SSRN. Here is the abstract:
    Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the outlaw and forgive approach rests on questionable premises. If coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated. The standard institutional justifications for outlaw and forgive - rules/standards problems, slippery slopes, and symbolism - are unpersuasive.
This article fascinated me--particularly the discussion of one particular line of defense for a legal prohibition on torture. Here is the way that Posner & Vermeule describe the argument:
    On deontological grounds, coercive interrogation is impermissible except to prevent “catastrophic harms.”
And here is their discussion of the argument:
    Charles Fried argues, as have many others, that it is permissible to kill an innocent person to save a whole nation from annihilation. If so, coercive interrogation would be permissible a fortiori in those circumstances. But why only those circumstances? Let us motivate the puzzle by imagining that a catastrophe principle governs the standard practice in which police officers may use necessary force, including lethal force, against persons who threaten harm to others. In this imagined regime, government officials may kill one person only to save (say) 1,000 other people. No legal system adopts such a regime, nor is there any obvious reason to recommend it. Standardly the permissible ratio11 is 1 to 1: where relevant restrictions are met, government may kill A to save B, not merely 1,000 Bs. Obviously we can add further specification to either the coercive-interrogation case or the extrajudicial killing case: we might require that the threatened harm be “imminent,” that the force used be no more than necessary, and so on. What is quite mysterious, however, is why the sheer catastrophic size of the threatened harm should matter. The obvious alternative is to say that the harm prevented must simply be greater than the harm inflicted. It will not do to say that “harms cannot be aggregated across individuals” or “we must take seriously the differences between persons.” The catastrophe exception is already in the business of aggregating harms across persons. Oddly, however, the catastrophe exception builds in an arbitrary threshold below which the harms are of insufficient weight to override deontological restrictions, and above which they are sufficiently weighty to do so.
Posner & Vermeule's discussion of the "catastrophe argument" raises a number of interesting questions. Let me share the following brief thoughts:
  • It seems rather unlikely that anyone actually holds the position that Posner & Vermeule identify--that some arbitrary number provides a magic threshold level of harm that justifies actions that otherwise would be morally impermissible on deontological grounds. That would be a very silly position indeed. What magic could their possibly be in 1000 lives as opposed to 999?

  • One can easily imagine a version of the catastrophe argument that would dispense with an arbitrary numerical threshold. Suppose that one believed that it is morally permissible to torture in order to prevent a major catastrophe, but not to save a single life. How could one then avoid setting some arbitrary value for what constitutes a major catastrophe? But of course, there are many concepts, including moral concepts, that cannot be given a precise numerical definition. Sometimes we use the term "fuzzy" to refer to concepts like "tall." "Tall" is a perfectly useful word in English, even though there is not precise line that seperates those who are tall from those who are not. Men who are six foot six or taller definitely count as tall in most contexts, but perhaps not in the NBA. On the other hand, an adult who is 5'0" or shorter definitely does not count as tall in ordinary social contexts. Of course, there are borderline cases and there is no official line that demarcates "tall" from "not tall," but this does not deprive the term "tall" of content. Likewise, the phrase "major catastrophe" be meaningful, even if there is no precise ratio or number that defines it. So in the context of torture, we might think that a threat to one life is not a major catastrophe, but a threat to an entire city is definitely such a catastrophe. And like "tall", there will be borderline cases--where judgments about whether a given event would count as a major catastrophe will be uncertain and sensitive to context.

  • Update: Posner & Vermeule do address this point in a footnote (p. 6, note 12):
      Michael Moore responds to this point in the following way:
        [T]he worry may be that any point we pick for a threshold beyond which consequences determine the rightness of action may seem arbitrary. . . . [But] this is no more than the medieval worry of how many stones make a heap. Our uncertainty whether it takes 3, or 4, or 5, etc., does not justify us in thinking there are no such things as heaps. Similarly, preventing the torture of two innocents does not justify my torturing one, but destruction of an entire city does.
      [Michael] Moore, [Torture and the Balance of Evils, 23 ISRAEL L. REV. 280 (1989)], at 332. Moore’s point would be responsive if the question were a linguistic and conceptual one: how many stones make a “heap,” and how many deaths make a “catastrophe.” It is not responsive to the different question we raise in text: why, as a matter of substantive morality, there should be any such catastrophe threshold in the first place. Why exactly do the deontologists want to say that saving a mere, say, two or three lives does not justify a single act of coercive interrogation? Moore’ final sentence restates the catastrophe view, but does nothing to justify it.
    It seems to me that Posner & Vermeule have missed the significance of Moore's point--which certainly refutes their claim that "the catastrophe exception builds in an arbitrary threshold below which the harms are of insufficient weight to override deontological restrictions, and above which they are sufficiently weighty to do so." It refutes their claim in two ways. First, there is no literal "threshold" of moral significance; the salience of a "catastrophe" becomes more and more obvious and decisive as the impact becomes qualitatively and quantatively more devastating. Second, the notion of a catastrophe, without a threshold, is not arbitrary--for obvious reasons. There really is a moral difference between one death and the loss of an entire city. However, Posner and Vermeule still have an important point. Their burden-shifting move--"Explain why catastrophes are morally different!"--does require an answer.

  • Why are catastrophes morally distinguishable from the mere aggregation of many deaths or injuries? The catastrophe argument might be defended in the following way. One might focus on the qualitative difference between mere threats to life and catastrophic events. There is a qualitative difference between destroying an ant hill (that contains 1,000 ants) and killing a number of ants that adds up to the same number that is in the hill. That's because colonies of ants have properties that are the result of complex interactions among ants related in a particular way. Likewise, destroying a whole city is qualitatively different than randomly killing persons that add up to the same number as the population of the city. Destroying Chicago would be qualitatively different than releasing a virus that would randomly kill the same number of people geographically dispersed across the globe. This qualitative difference is behind the notion that genocide is an especially horrific crime--wiping out an entire ethnic, religious, or cultural group is not the same as killing a bunch of individuals--even though both are horrific.

  • I was especially interested in the following claim (from the passage quoted above):
      Standardly the permissible ratio is 1 to 1: where relevant restrictions are met, government may kill A to save B, not merely 1,000 Bs.
    This statement was puzzling. Of course, it is not the case that we believe that the standard principle is that government may take one life to save one life. I think that Posner & Vermeule mean that government may take one life in order to save more than one life.

  • But with this correction, the statement--"[s]tandardly the permissible ratio is 1 to 1"--is still quite odd. Can government kill one person in order to harvest organs that will save two? Standarly, the answer is no. Perhaps what Posner and Vermeule mean is that government (or anyone for that matter) can kill one non-innocent person who poses an immediate threat to the life of another. So, the SWAT team can shoot the sniper in order to save the life of one innocent person. If that is what Posner and Vermeule mean, then they are wrong to think that there is a one-to-one ratio. For example, one could shoot (and kill, if necessary) a sniper who was merely maiming the victims. One could could shoot (and kill, if necessary) two snipers in order to save one life. What is doing the work here is not the ratio (1 to 1) or otherwise. Rather, several things are doing the moral work: 1) the bad guy--the sniper--is not innocent but rather poses a wrongful threat to innocent persons, 2) the threat posed by the sniper cannot be countered by other means (taking him out is "necessary"), 3) the action by the SWAT team is proportionate to the threat posed by the wrongful actor (sniping justifies a response with deadly force, but dropping water baloons would not justify deadly force). Of course, "proportionate" like "tall" or "catastrophe" is a fuzzy concept and is context dependent. There is not precise numerical criterion for when deadly force is proportionate to a threat. It is clear, however, that "proportionate" does not mean a one-to-one ratio.

  • Update: This point about "proportionality" is very important, because it is directly tied to the reason that catastrophes are morally relevant. Torture (or killing of innocents) is a disproportionate response to a mere one-to-one tradeoff (of lives, pains, or any other unit that can be summed). If there really were a ratio (that was morally decisive) and that ratio were one-to-one, then organ harvesting might be justified so long as the death of the innocent victim (or guilty criminal, for that matter) could save more than one life (or even more than an equivalent number of years of life expectancy). Proportionality is no moral mystery; it is one of the most familiar concepts of our ordinary working moral vocabulary. Posner and Vermeule's burden shifting move--"Tell us why catastrophes are morally important--ignores the perfectly ordinary explanation that lies right on the surface of the catastrophe argument. Torture is a proportionate response to a catastrophe but not to noncatastrophic harm. It is true that someone who puts on the monochrome spectacles of utilitarian moral theory might be able to blind themselves to the significance of the concept of proportionality, but the giving of the ordinary explanations cannot cure this form of blindness. To see the salience of proportionality judgments, the utilitarian must take off the spectacles and see the rich and complex landscape of moral life in living color.

  • Let me conclude by summing up. If we charitably construe the catastrophe argument, then it does not rely on some arbitrary numerical ratio. The lack of such a ratio does not make the notion of a catastrophe fatally vague, because "catastrophe" like "tall" or "proportionate" is a fuzzy concept, with clear cases of application and nonapplication and a context-sensitive gray zone in between. There is no "standard" "permissible ratio" of one-to-one or one-thousand to one. The assumption that there must be such a ratio is based on a conceptual mistake--it ignores the role of proportionality judgments and implicitly assumes a utilitarian framework for the evaluation of fungible consequences on a unitary scale.
Download Posner and Vermeule's very interesting paper!


 
Wednesday Calendar
    NYU Legal History: William Eskridge, Yale Law School.


 
New on Law & Politics Review
    JUDGING THOMAS: THE LIFE AND TIMES OF CLARENCE THOMAS, by Ken Foskett. New York: William Morrow/HarperCollins, 2004. Hardcover. 352pp. US$24.95 / CDN$38.95. ISBN: 0060527218. Trade Paper. 368pp. US$14.95 / CDN$20.95. ISBN: 0060527226. Reviewed by Henry F. Carey.
    THE LIMITS OF INTERNATIONAL LAW, by Jack L. Goldsmith and Eric A. Posner. New York: Oxford University Press, 2005. 272pp. Cloth. $29.95 / £18.50. ISBN: 0-19-516839-9. Reviewed by Sanford R. Silverburg.
    DEFINING CIVIL AND POLICIAL RIGHTS: THE JURISPRUDENCE OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE, by Alex Conte, Scott Davidson and Richard Burchill. Burlington, VT and Aldershot, Haunts: Ashgate Publishing Limited, 2004. 280pp. Hardcover. $114.95 / £60.00. ISBN: 0-7546-2279-7. Reviewed by Susan C. Breau.
    INTELLECTUAL PROPERTY RIGHTS IN EU LAW: FREE MOVEMENT AND COMPETITION LAW (Vol. 1), by David T Keeling. Oxford: Oxford University Press, Oxford European Community Law Library, 2004. 456pp. Hardback. $135.00 / £75.00. ISBN: 0198259182. Reviewed by Mark Perry.
    FROM UI TO EI: WAGING WAR ON THE WELFARE STATE, by Georges Campeau (translated by Richard Howard). Vancouver: University of British Columbia Press, 2004. 256pp. Cloth. CDN$103.93 / US$85.00 / £56.50. ISBN: 0-7748-1122-6. Reviewed by Jerold Waltman.
    DEFENDING THE RIGHT TO A HOME: THE POWER OF ANTI-POVERTY LAWYERS, by Beth Harris. Burlington, VT: Ashgate 2004. 246pp. Hardcover. $99.95 / £50.00. ISBN 0-7546-2390-4. Reviewed by Mark Kessler.
    JUDGES IN CONTEMPORARY DEMOCRACY: AN INTERNATIONAL CONVERSATION, by Robert Badinter and Stephen Breyer (eds). New York: New York University Press, 2004. 352pp. Cloth $55.00. ISBN: 0-8147-9926-4. Reviewed by Sally J. Kenney.


 
Hayden on a Voting Rights Exit Strategy Grant M. Hayden (Hofstra University - School of Law) has posted The Supreme Court and Voting Rights: A More Complete Exit Strategy (North Carolina Law Review, Vol. 83, p. 949, 2005) on SSRN. Here is the abstract:
    To the great relief of many observers, the Supreme Court has recently become more deferential to state legislatures with respect to their political redistricting plans. The only problem is that the Court appears to be in no mood to revisit some of the cases that got in entangled in the political thicket to begin with–the ones rigorously applying the one person, one vote standard. Indeed, it recently issued a summary affirmance of a lower court decision that tightened up its already exacting standards regarding population equality. As a result, the Court's partial retreat from politics is doing more harm than good, as it is abdicating its responsibility to protect minority voters but leaving certain constitutional rules intact that limit the ability of Congress or the states to do so. For that and other reasons, the Court should make its exit from politics more complete by relaxing its application of the one person, one vote requirement in many situations.


 
Natapoff on Silencing Criminal Defendants Alexandra Natapoff (Loyola Law School (Los Angeles)) has posted Speechless: The Silencing of Criminal Defendants (New York University Law Review, Vol. 80, 2005) on SSRN. Here is the abstract:
    Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent, spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that it is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially-disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: it is through speech that defendants engage with the law, understand it, express anger, remorse, or their acceptance or rejection of the process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides what collective decisions are fair or unfair, and who should be punished. This Article describes the silencing phenomenon in practice and doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to democratic values that underlie the process. It proposes new ways of valuing defendant speech, and challenges conventional understandings of the attorney-client conversation, the listening role of the bench, and the public discourse about criminal justice.


 
Nockleby & Curreri on Tort Retrenchment John T. Nockleby and shannon curreri (Loyola Law School (Los Angeles) and Loyola Law School (Los Angeles)) have posted 100 Years of Conflict: The Past and Future of Tort Retrenchment (Loyola of Los Angeles Law Review, Vol. 38, 2005) on SSRN. Here is the abstract:
    John Nockleby and Shannon Curreri argue in "100 Years Of Conflict: The Past And Future Of Tort Retrenchment," that tort reform is a political movement reacting against several decades of common law judging. Redefining the tort "reform" movement as actually retrenchment, Nockleby & Curreri examine the contemporary political battles over tort law against the backdrop of earlier social, political, and economic forces that transformed the American civil justice system during the first three quarters of the twentieth century. These developments include litigating major social harms through the tort system, expanding consumer and employee rights and duties to protect others, recognizing emotional harm as a compensable loss, and the rise in business-to-business tort litigation. The current political conflicts over tort law are best understood as an effort to retreat from those achievements.


 
McClain on Multicultural Coming of Age Stories Linda C. McClain (Hofstra University - School of Law) has posted Bend It Like Beckham and Real Women Have Curves: Constructing Identity in Multicultural Coming-of-Age Stories (DePaul Law Review, Vol. 54, p. 701, April 2005) on SSRN. Here is the abstract:
    This Article looks at the coming-of-age stories in two recent films, Bend It Like Beckham and Real Women Have Curves, as an avenue to explore the question of constructing identity. Both films, arising out of the filmmakers' experiences, aim to offer representations of particular individuals in minority groups that challenge dominant representations. They also offer aspirational visions of how such individuals might find a way to construct a hybrid identity that allows them to negotiate their place within the various groups that claim them and within the broader society. How, the article asks, do the heroines in these films find ways to construct their identity in context, and what sort of cultural, social, and institutional arrangements facilitate, on the one hand, and hinder, on the other, their capacity to do so? Cultural norms and practices concerning women are often at the core of what a particular community deems to be essential components of its culture that must be transmitted from one generation to the next. Thus, debates about women and culture and about cultural assimilation versus cultural survival at their core implicate children and efforts by families and communities to socialize children. The article title also intentionally refers to a second meaning of coming-of-age: coming to helpful understandings of how best to understand questions regarding the interplay between identity and culture and the dynamic between individual and group identity. Studying the coming-of-age stories of adolescents, on the threshold of adulthood, offers a chance to see how they construct a self from, as philosopher K. Anthony Appiah has put it, the "tool kit of options made available by our culture and society." The Article's approach to identity recognizes the tension between freedom and determination and the interplay of choice and constraint in the construction of identity. Another useful orienting idea is that "culture" is not monolithic, homogeneous, and static, but contested, fluid, and in a continual process of reinterpretation.


 
Schaumann on P2P Direct Infringement Niels Schaumann (William Mitchell College of Law) has posted Direct Infringement on Peer-to-Peer Networks on SSRN. Here is the abstract:
    In 2001, the Ninth Circuit affirmed a trial court decision that some 75 million Americans were infringing copyright by exchanging music files in the MP3 format via a peer-to-peer ("P2P") network known as Napster. The breathtaking sweep of this holding - that almost one quarter of the population of the United States was engaging in illegal (and likely criminal) activity - was reason enough to give the case a second look. But most of the scholarly attention lavished on the Napster case focused on Napster's secondary liability for providing the technology of infringement. There has been little analysis of the primary infringement committed by Napster's users. Indeed, the alleged primary infringement of P2P users seems to be an example of a phenomenon one sometimes encounters in the common law: A case finds liability, with little or no analysis. A later case also finds liability, with no independent analysis, citing the first case. A third case does the same, citing the first two cases. Before long, the principle of liability is declared to be well-settled, despite an almost complete lack of reasoning supporting the principle. The so-called "RAM copy doctrine," discussed below, is a good example of this phenomenon. Direct P2P infringement seems destined to be another: While Napster, the first of the P2P cases, at least briefly discusses the basis for the direct liability of Napster’s users, later cases have done little more than mention that P2P users infringe copyright, as if it were self-evident. In this article, I will analyze the activities of P2P users to determine more precisely which, if any, of their actions infringe copyright. I suggest that one reason courts do not delve more deeply into the question of direct infringement is that in fully-litigated cases, the alleged direct infringers are not before the courts; their rights are being adjudicated in absentia. Moreover, the actual defendants in these cases - the alleged secondary infringers - are poor proxies for the users of P2P networks and have no incentive to promote clear judicial analysis, because clear analysis will result in secondary liability. Yet it is important from a policy standpoint to be clear about which activities infringe and which do not. Part II of this Article will describe the process of copyright lawmaking and the recent evolution of copyright law in response to technology. This discussion will include a brief description of conventional and P2P network technology. A copyright analysis of user activities on P2P networks follows in Part III, which argues that the nature of copyright legislation requires courts to be especially careful and precise in determining the contours of infringing noncommercial conduct by members of the public. The analysis in Part III will lead to the conclusion that copying by P2P users does not infringe copyright, but distribution does. In Part IV, I address some strategic considerations affecting copyright enforcement and P2P networks, and I will argue that the rights of consumers to use copyrighted works are gravely threatened by the current of litigation against secondary infringers. Finally, I propose the reinvigoration of Sony as a way to preserve the public benefit of P2P technology.


 
Conference Announcement: Causality, Probability, and Rationality at Bologna
    CAUSALITY, PROBABILITY AND RATIONALITY Bologna, May 6-7, 2005 Convenors: MARIA CARLA GALAVOTTI - ROBERTO SCAZZIERI Institute of Advanced Study, University of Bologna Villa Gandolfi Pallavicini – Via Martelli, Bologna Friday, May 6
      10:00 a.m. - 1:00 p.m. PATRICK SUPPES (Stanford) “Causal mechanisms of mental phenomena” NANCY CARTWRIGHT (LSE and Institute of Advanced Study) “How to get causes from probabilities: some methods in econometrics” ALESSANDRO VERCELLI (Siena) “Granger causality and rational expectations: an impossible marriage” 3:30 p.m.- 5:30 p.m. MARGHERITA BENZI (Genova) “Causal networks and contexts” PETER MENZIES (Sydney) “Reasons and causes: the norms in nature” 6:00 p.m. PATRICK SUPPES and NANCY CARTWRIGHT will discuss with MARIA CARLA GALAVOTTI her volume Philosophical Introduction to Probability (Stanford: CSLI, 2005)
    Saturday, May 7
      9:30 a.m.-12:30 p.m. DOMENICO COSTANTINI (Bologna) “In- and ex- probabilities” UBALDO GARIBALDI (Genova) “Aggregate behaviour and underlying probabilistic dynamics” DAMIEN FENNELL (LSE) “Identification in econometrics and ‘possible’ experiments”
    The workshop is part of the activites of the Research Group on “The identity of modern thought and its crisis” and of the Focus Group “Dynamics of human knowledge” at the Institute of Advanced Study.


Tuesday, May 03, 2005
 
Yin on Ending the War on Terrorism Tung Yin (University of Iowa, College of Law) has posted Ending the War on Terrorism One Terrorist at a Time: A Non-Criminal Detention Model for Holding and Releasing Guantanamo Bay Detainees (Harvard Journal of Law and Public Policy, Vol. 29, No. 1, 2005). Here is the abstract:
    This Article answers one of the most perplexing questions arising from the war on terrorism, specifically, when should we release detainees kept at Camp Delta (Guanatanamo Bay, Cuba)? The usual arguments on this matter verge on one extreme or the other. Some contend that the detainees should either be charged with criminal wrongdoing or released, an unnecessarily restrictive view that also ignores the fact that Congress has authorized the use of military force against the group and individuals responsible for the 9/11 attacks. During a traditional nation-state war, there is no requirement that the detaining State charge enemy prisoners of war with crimes to justify detaining them for the duration of the conflict. On the other hand, the Administration takes the view that the detainees can be held until the end of the war on terrorism a position that is tantamount to holding the detainees for the rest of their lives. What I propose is a non-criminal detention model that draws upon analogies to situations under domestic law in which persons can be detained involuntarily without having been charged with criminal wrongdoing. The ensuing detention model requires that the detainee be within the class of persons against whom Congress has authorized military force (making them the equivalent of enemy soldiers) and also that the government show on a periodic basis that the detainee remains dangerous. The advantage of this model is that it takes into account the invocation of military force but provides a measure of due process to ensure that individual detainees who no longer view themselves at war with us will be released.


 
Brinig on Parental Autonomy & Child Custody Margaret F. Brinig (University of Iowa, College of Law) has posted Does Parental Autonomy Require Equal Custody at Divorce? (Louisiana Law Review, Vol. 65, 2005) on SSRN. Here is the abstract:
    This paper considers the affect of amendments to state divorce laws that strengthen their joint custody preference. It does so in the context of suits by noncustodial parents challenging substantive custody standards not requiring equal custody at divorce. The complaint is that most custody laws, by using a "best interests" standard rather than equally dividing custodial time, violate substantive due process. Further, two states, Iowa and Maine, have recently amended their custody legislation to strongly presume joint physical custody. After setting out the constitutional problem and describing the legislation in some detail, this paper tests the effects of the change in the Oregon statutes. Policy-makers might well want to know how children fare under joint custody as opposed to other possible visitation arrangements. In other words, does the child's best interests, the hallmark of most current statutes, itself require joint custody? Empirical results from a broad national survey suggest that a close relationship with a non-custodial parent is significant in relieving various kinds of negative outcomes for adolescents, but that frequent over night stays, beyond once or twice a year do not matter much. Policy-makers might also question whether the stronger legislative preference really increases joint custody awards. Does its requirement that mediation alternatives be suggested (and, in some cases, ordered) in fact increase the number of cases that are settled by mediation? Do judges sometimes prescribe mediation in cases that are inappropriate (such as those in which domestic violence orders have been entered)? Do children receive less child support under the new statutory scheme? Is there evidence that the process makes divorce less painful and less expensive? Empirical results on Oregon suggest that while even small statutory changes have large effects, they are not necessarily the ones that motivated the legislation. The broader goal here is to suggest that changes in family law, while often made, are seldom systematically assessed. Society needs such accountability, particularly when children are involved. I show one way it might be done.


 
Cheng on Structural Laws Edward K. Cheng (Brooklyn Law School) has posted Structural Laws and the Puzzle of Regulating Behavior (Northwestern University Law Review, Vol. 100, 2005) on SSRN. Here is the abstract:
    This Article offers a new way of thinking about overcriminalization. It argues that in regulating behavior, legislatures have relied excessively on statutory prohibitions and ex post enforcement by police and prosecutors. Regulation by "fiat" alone is often inadequate; proscriptive laws need accompanying structural ones that can cabin behavior and help alter existing social norms. After developing a theoretical framework for distinguishing "fiat" from "structure," the Article tackles the puzzling question why legislatures persist in focusing almost exclusively on fiat-based measures despite the availability of more effective structural ones. The answer turns out to be surprisingly complex, ranging from institutional inertia, to attitudes about liberty, to political considerations. Applying these theoretical arguments, the Article then turns to three concrete examples: tax evasion, speeding, and music piracy. Tax evasion offers an uncommon chance to observe the successful implementation of structural laws, whereas speeding illustrates the more typical scenario in which a fixation on fiat yields low compliance rates, opportunities for arbitrary and discriminatory enforcement, and public disrespect for the law. Music piracy presents a contemporary debate at the crossroads between fiat and structure, and the Article explores the ramifications of the two choices. The Article concludes with some broader questions about the desirability and the future of structural regulation.


 
Conference Announcement: Clarity and Obscurity in Legal Language


 
Journal Announcement: Latest Issue of Ethics


 
Call for Papers: Comparative Perspectives on Rights Enforcement
    CALL FOR PAPERS REFLECTIONS ON RIGHTS ENFORCEMENT: COMPARATIVE PERSPECTIVS, University of Saskatchewan, September 22 to 24, 2005 Fifty-six years ago the United Nations adopted the Universal Declaration of Human Rights (UDHR). This Declaration, an optimistic exhortation to the global community in the wake of the human devastation of fascism, had the potential to change the relationship between government and its citizens. Embracing a panoply of rights, the UDHR was supposed to serve notice on those who wished to hide behind the principle of state sovereignty, especially when they egregiously violated the rights of their citizenry, that this was no longer to be the case and that some measure of accountability towards citizens was now applicable. Despite some dissension amongst the leading countries of the world about the adoption of such a sweeping universal document on rights, the importance of the UDHR, and its progeny, the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights is now unassailable. Indeed, a cursory glance at the proliferation of human rights instruments emanating from the United Nations will confirm the significance of human rights as essential to good governance. In addition to the voluminous activity at the international level, many established and newly-emerging democracies have adopted international human rights principles in their constitutional or legal frameworks. This is particularly the case in countries that have emerged from authoritarian or repressive histories, and for whom the new legal and constitutional arrangements have to be transformative in their potential for rights enforcement. In these countries the rights project takes on enormous significance, both substantively and symbolically. This has, for example, been the case in Argentina and Uganda, after many decades of brutal military dictatorship: both the Argentinian and Ugandan Constitutions incorporate an array of international human rights principles in their Constitutions. South Africa provides another interesting case in point: the Constitution adopted there includes both in spirit and in substance the major tenets of international human rights law. The Constitution is extremely broad in its generous protection of not only civil and political rights, but also economic and social rights. Canada too has been part of this ?rights revolution?. The Canadian Charter of Rights and Freedoms has been acclaimed as incorporating human rights as an intrinsic and irrevocable part of Canadian identity?. In addition, the Charter of Fundamental Rights of the European Union has generated a rights jurisprudence protecting the rights of citizens a in a host of areas. Australia and New Zealand have in the past decade grappled with the incorporation of rights in their Constitutions. It is fair to say therefore that the range of Constitutional frameworks adopted in democracies reflect the "global growth in human rights consciousness." Upendra Baxi, the Indian legal scholar, refers to the discourse of human rights seeking to "supplant all other ethical languages," In response to this past half century of constitutional ?rights talk?, the University of Saskatchewan College of Law will host a conference from September 22 to 24, 2005 to explore the issue of constitutionalism and rights in comparative perspective. The conference will provide a forum within which the major themes of rights discourse will be employed. These include, but are not limited to rights and equality; rights and the criminal justice system; labor; rights, security and citizenship; federalism; judicial review; group or minority rights; poverty; rights and reparations; and rights enforcement. Participants will include judges, legal and policy scholars, legal practitioners and human rights advocates. The University of Saskatchewan Law Review will publish the proceedings of the conference . Abstracts (one page) should be submitted by May 25 to the address listed below. The conference registration fee of $100 (Canadian) will cover conference lunches, refreshments and conference materials. Penelope E. Andrews Ariel F. Sallows Professor of Human Rights Law University of Saskatchewan College of Law 15 Campus Drive Saskatoon SK S7N 5A6 CANADA penelope.andrews@usask.ca


Monday, May 02, 2005
 
Debate Club: Sunstein versus Barnett on the Constitution in Exile I am really looking forward to Legal Affairs's "Debate Club" this week, featuring two of the real heavyweights of constitutional theory--Cass Sunstein and Randy Barnett--who debate "The Constitution in Exile." The opening posts are up & here is a small taste:
    For Judge Ginsburg, and for some others, the court had the Constitution right in 1930. The Rehnquist Court has made a few modest movements toward the Constitution of that year, and some people would like it to be much bolder.
And here is a taste of Barnett:
    For obscure reasons that we may perhaps glean from this week's debate, the phrase "Constitution in Exile" viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these "originalists" sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.


 
Monday Calendar
    University of Texas CLBE Law and Economics Workshop: Guhan Subramanian, Harvard University, "Fixing Freezeouts"


 
Denno on Fletcher Deborah W. Denno (Fordham University School of Law) has posted When Two Become One: Views on Fletcher's 'Two Patterns of Criminality' (Tulsa Law Review, Vol. 39, p. 781, 2003-2004) on SSRN. Here is the abstract:
    This essay reflects on particular themes in George Fletcher's Rethinking Criminal Law as part of a symposium celebrating the book's twenty-five years of contributions. The discussion focuses on the book's well-known patterns of criminality: (1) manifest criminality, which proposes that crimes are acts that any objective observer would clearly recognize as illegal without knowing anything about the mental state of the person committing those acts and, in stark contrast, (2) subjective criminality, which suggest that crimes are consciously intended and experienced only by those who are committing them and that this sense of intention and experience is highly individual. The essay contends that the two patterns of criminality are so interdependent that pragmatically it is difficult and often deceptive to analyze a crime through distinctly manifest or subjective lenses. Recent empirical research on conscious and unconscious thought processes shows that people's interpretations of their own or others' acts are highly subjective in ways that the criminal law has not recognized. A separate concept of manifest criminality resting on objective observations now seems a bit of a myth. The two patterns of manifest and subjective criminality have become one - subjective criminality characterized (or bolstered) more or less by what Fletcher designates as manifest criminality. Within the confines of this essay, there are no set recommendations for how the criminal law should operate with its subjective + manifest approach; consciousness research demonstrates the factual and conceptual fragility of both the manifest and subjective patterns of criminality. Yet, there is an underlying theme: it's time for the criminal justice system to confront the mens rea mystery by going back to school to keep up with advances in the cognitive sciences. Fletcher's two patterns were once at the forefront; now they merely need some modernizing in light of new science.


 
Burke on Cognitive Science & Prosecutorial Decision Making Alafair S. Burke (Hofstra University - School of Law) has posted Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science (William & Mary Law Review, Vol. 47, Forthcoming) on SSRN. Here is the abstract:
    This Article draws on cognitive psychology to develop a new explanation for prosecutorial misconduct. Traditionally, commentators have clothed the study of prosecutorial decision making in the rhetoric of fault. They have attributed overcharging, undisclosed exculpatory evidence, and convictions of the innocent to bad prosecutorial intentions and widespread prosecutorial wrongdoing. This fault-based lens colors both the description of the problem and the recommended solutions. In the language of fault, the problem is a culture that values obtaining and maintaining convictions over justice. The solution is to change prosecutorial values through, for example, more stringent ethical rules and increased disciplinary proceedings and sanctions against prosecutors. In this Article, I attempt instead to explain prosecutorial decision making from a cognitive perspective. I argue that even virtuous prosecutors can make normatively inappropriate decisions that result, not from flawed values, but from limits in human cognition. Prosecutors make what appear to be irrational decisions because all human decision makers share a common set of information-processing tendencies that depart from perfect rationality. In comparison to a fault-based approach, a cognitive description of the problem complicates the road for corrective action. If prosecutors fail to achieve justice not because they are bad, but because they are human, what hope is there for change? In three Parts, this Article attempts to explain how cognitive bias can affect the exercise of prosecutorial discretion and to suggest some initial reforms to improve the quality of prosecutorial decision making. Part I summarizes four related cognitive phenomena: confirmation bias, selective information processing, belief perseverance, and the avoidance of cognitive dissonance. Part II explores how these cognitive biases might adversely affect the exercise of prosecutorial discretion. Part III proposes a series of reforms that might improve the quality of prosecutorial decision making, despite limits on rationality.


 
Penalver on Property as Entrance Eduardo M. Penalver (Fordham University - School of Law) has posted Property as Entrance (Virginia Law Review, Vol. 91, 2005) on SSRN. Here is the abstract:
    One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property's liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. This mechanism of property as exit draws its strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the cocoon of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. In addition, scholars' affinity for property's exit function has obscured the degree to which property works, not solely as a means of facilitating withdrawal, but also as a crucial mechanism for tying individuals into social groups.


 
Langer on the Americanization Thesis Maximo Langer (University of California, Los Angeles - School of Law) has posted From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure (Harvard International Law Journal, Vol. 45, No. 1, 2004) on SSRN. Here is the abstract:
    This article analyzes the Americanization thesis in criminal procedure. According to the strong version of this thesis, the U.S. legal system has become the most influential system in the world and, as a consequence, a substantial number of legal systems may gradually come to resemble or mimic the American one and thus become Americanized. This article cautions against the strong version of the Americanization thesis through an examination of the introduction of American-style plea bargaining in four civil law countries - Argentina, France, Germany and Italy. It shows that even if each of these countries has introduced a form of plea bargaining, there are two main series of reasons that explain why these jurisdictions will probably not be Americanized. First, there are important features of civil law countries' inquisitorial system that may neutralize the Americanization effect of the imported practice. Second, these four civil law jurisdictions have introduced plea bargains that present differences - even substantial differences - not only from the American model but also among themselves. As a consequence of these differences between the Argentine, French, German and Italian plea bargains, the article shows that a paradoxical consequence of the American influence on civil law jurisdictions may be the production of fragmentation and divergence, rather than the Americanization of criminal procedures of the civil law tradition. In order to demonstrate these points, this article redesigns two conceptual frameworks. First, it reconceptualizes the adversarial and inquisitorial systems as theoretical categories. The article shows that these systems should be conceived not only as two different techniques to handle criminal cases, but also as two different procedural cultures and as two different ways to distribute powers and responsibilities between the main actors and institutions of the criminal justice system. Second, the article also challenges the framework of the legal transplant as a way to think of the circulation of legal ideas and institutions between legal systems. It shows that the metaphor of the legal transplant is too rigid to account for the transformations that legal ideas and institutions undergo when they are moved into new legal systems. Instead, the article proposes the metaphor of the legal translation as an alternative heuristic device when analyzing the transfer of legal ideas and institutions between legal systems. The adversarial and inquisitorial systems, understood as two different procedural cultures, can be understood as two different systems of productions of meaning. Thus, the transfer of legal institutions from one system to the other can be understood as translations from one system of meaning to the other.


 
Murphy on Preemptive Self-Defense Sean D. Murphy (The George Washington University Law School) has posted The Doctrine of Preemptive Self-Defense (Villanova Law Review, Forthcoming) on SSRN. Here is the abstract:
    To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense. The intervention in Iraq highlighted considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state’s weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion and occupation. Nevertheless, preemptive self-defense may continue to be used by powerful states on a smaller scale, such as missile attacks against weapons facilities or terrorist camps in rogue states. Unfortunately, the views of international lawyers are fractured on whether such conduct is lawful. Most international lawyers appear to fall into schools of thought that reject preemptive self-defense, but the debate is robust and will no doubt continue. As it continues, this essay urges international lawyers to focus more on the theory and methodology they employ in reaching their conclusions, and why their approach is superior to that of other schools of thought. In particular, the discourse among international lawyers regarding how to gauge state practice since 1945 is uneven, not joined, and at times breezy. Only by grappling squarely with issues of theory and methodology will international lawyers be able to achieve a greater level of convergence in their views, thereby providing policy-makers with better guidance and laying the groundwork for more stable international rules on the use of force.


 
Solimine on the Future of Parity Michael E. Solimine (University of Cincinnati, College of Law) has posted The Future of Parity (William & Mary Law Review, Vol. 46, p. 1457, 2005) on SSRN. Here is the abstract:
    This article is a contribution to a conference on "Dual Enforcement of Constitutional Norms." It focuses on the adjudication of federal constitutional rights in state courts. The conventional wisdom in many quarters is that given the countermajoritarian nature of many such rights, and the presumption that most state judge are subject to electoral pressures, that state courts are not in parity with federal courts when it comes to litigating and vindicating such rights. The best known proponent of this view is Burt Neuborne in his "The Myth of Parity" article in 1977. Taking exception to some aspects Neuborne's thesis was an article by the late Paul Bator, "The State Courts and Federal Constitutional Litigation," in a symposium in the William and Mary Law Review in 1981. Bator considered, among other things, why state courts should be permitted to adjudicate federal rights at all, when state courts should be the initial forum for litigating federal rights, and when and how federal courts should defer (if at all) to prior adjudication of federal rights in state fora. The present article revisits the issue of parity in the context of re-evaluating Bator's article. Part I of the article discusses the empirical studies of parity that have appeared since the publication of the Nueborne and Bator articles. Part II focuses on the prospect of disuniformity in the application of federal rights by the large number of state courts, and problems associated with the ability of the U.S. Supreme Court and lower federal courts to monitor that application through the certiorari and habeas corpus process, respectively. Finally, Part III addresses how a variety of prospective changes to state court institutions affect parity. This includes the convergence of civil and criminal procedure in federal and state courts, and possible reforms of judicial selection and election processes for state courts.


 
Conference Announcement: Law's Empire


Sunday, May 01, 2005
 
Legal Theory Calendar
    Monday, May 2
      University of Texas CLBE Law and Economics Workshop: Guhan Subramanian, Harvard University, "Fixing Freezeouts"
    Tuesday, May 3
      Oxford Jurisprudence Discussion Group: Helder de Schutter, Justice and Multinational Federalism.
      Oxford Intellectual Property Research Centre: Intellectual Property in the New Millennium: Jane C Ginsburg, The Author’s Name as a Trademark: A Perverse Perspective on the Moral Right of ‘Paternity’
      University of Texas Constitutional Studies Luncheon: David Faigman, University of California, Hastings School of Law, "Fact-Finding in Constitutional Cases"
    Wednesday, May 4
      NYU Legal History: William Eskridge, Yale Law School.
    Thursday, May 5
      Oxford Public International Law Discussion Group: Andreas Zimmerman, Violations of Fundamental Norms of International Law and the Exercise of Universal Jurisdiction in Criminal Matters
    Friday, May 6


 
Legal Theory Lexicon: Primary and Secondary Rules
    Introduction Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot do, or more precisely, rules that forbid certain conduct and then attach punishments for disobedience. The rules of contract law are different. It's true that contract remedies do provide sanctions (or prices) for breaking contracts, but most of contract law is about making contracts. In criminal law (and torts), the state makes up the rules of conduct. In contract law, the contracting parties are empowered to create their own rules of conduct.
    Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
    The Distinction Between Primary and Secondary Rules Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.
    More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.
    Some more examples may help:
      Examples of Primary Rules
      • Criminal prohibitions.
      • Tort rules.
      • The individual right to freedom of speech.
      • The provisions of contracts that define the primary obligations of the parties.
      • The environmental law rule that forbids discharge of toxic substances in rivers and streams.
      Examples of Secondary Rules
      • Contract law rules that enable parties to form contracts.
      • The rules that allow testators to create a will.
      • The constitutional rules that confer legislative powers on Congress.
      • The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.
    The Practical Importance of Secondary Rules One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.
    Conclusion The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments.
    One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century.