Legal Theory Blog

All the theory that fits!


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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Thursday, June 30, 2005
Call for Papers: Respect
    Res Publica: A Journal of Legal and Social Philosophy invites submissions for a special issue (Volume 12/1): Respect
      'Respect' is a ubiquitous, multi-faceted and frequently under-theorised concept in ethical, social, political and legal philosophy. While it is generally regarded as a 'good thing', exactly what kind of thing it is remains in many ways contested or opaque. What does it mean to respect another person? How does this relate to 'toleration', or 'recognition', or to dignity, merit or social status? Can, or should, respect for individuals translate into respect for groups, or ways of life? Where, or with whom, does the call to respect another become inappropriate? Is respect of any relevance in addressing social inequalities, or as a component part of social justice? How does it relate to questions of power? Does pursuing it risk the aggressive imposition of partial norms across diverse social contexts? How does respect for others relate to disrespect? Or to self-respect? Does the term merit its typically central place in professional codes of ethics? Can we respect the dead, or those yet to be born? Can the term coherently be applied to non-human entities (animals, the natural environment, property)?
    For this special issue, to appear in early 2006, we aim to attract a range of treatments of these, and related, questions. We especially encourage the submission of papers relating issues of 'respect' to:
      - Human rights - Equality - Anti-discrimination - Status recognition - Social justice - Professional ethics
    ... but we welcome submissions addressing any of the questions raised above, whether individually or in combination. All articles will be submitted to our standard process of double-blind review. Deadline for submissions: 31 July, 2005 Maximum paper-length: 8000 words For further information, please contact the co-editors of this issue:
      Dr David Middleton, Open University: or Dr Gideon Calder, University of Wales, Newport:

Pettit on the Many as One Philip N. Pettit (Princeton University - Department of Politics) has posted On the Many as One (Philosopy and Public Affairs, September 2005) on SSRN. Here is the abstract:
    In a recent paper on "The Many as One', Lewis A. Kornhauser and Lawrence G. Sager look at an important issue in political theory? How far should groups in public life try to speak with one voice, and act with one mind? How far should public groups - in particular, politically authoritative groups like the judiciary and the legislature - try to display what Ronald Dworkin calls integrity? While we agree with many of the points they make about this issue, we do not think that they do justice to the challenge they identify. Our comments fall into three sections. We address, first, the nature of the integrity challenge; second, the range of cases in which the challenge arises; and third, the question of whether public groups should try to satisfy it. While starting from our differences with Kornhauser and Sager, the main aim of the paper is to advance the discussion of these topics, generating a more general perspective than they provide.

Wednesday, June 29, 2005
Read Ernest Miller on Grokster If you are interested in Grokster, you really want to read this post by Miller. Like much of Miller's work, his analysis of Grokster is very fine indeed. Very highly recommended!

Grokster and the Future of P2P What are the implications of the Grokster decision for the future of P2P filesharing? Superficially, the fact that MGM prevailed in the Supreme Court might seem like a negative for P2P, I believe that quite the opposite is true. Why?
  • The first question that needs to be answered when evaluating the impact of Grokster is: What is the baseline? The thought that Grokster was a victory for content providers is a result of the assumption that the Ninth Circuit's decision provided the legal baseline, and that baseline essentially immunized P2P providers from legal liability. But that assumption was never correct. The Ninth Circuit decision was just one decision in one case, and the decision itself was largely a product of the poor litigation strategy of plaintiffs--who were trying to get the Ninth Circuit to eviscerate the Sony (substantial noninfringing use) decision. The Ninth Circuit did buy the plaintiff's argument that the choices were eviscerate Sony or let P2P run amok, but decided to let P2P run amok. In my opinion, that result was unstable and never could have been the long-term status quo. The real baseline was a state of uncertainty--with the NInth Circuit Grokster decision, the Seventh Circuit's Aimster decision, and many other possibiities unresolved.
  • The Supreme Court's decision in Grokster makes it clear that P2P companies are subject to liability if there is direct proof of intentional inducement of copyright violations. Good legal engineering of P2P communications and business models can easily insure that such proof will be unavailable. Therefore, the intentional inducement cause of action is likely to drop out of the picture from an ex ante perspective. Of course, ex post some of the existing P2P services may have residual legal problems, but that will only shift users from some P2P services to others.
  • Among the P2P services that are likely to flourish in a post-Grokster legal environment is BitTorrent. Of course, shifting users to BitTorrent is no victory for content providers--it is actually a defeat. It is not in the interest of content providers to encourage users to shift to more capable P2P engines. (For more on this, see Ernest Miller's post with many links.)
  • Of course, there is a certain air of unreality about all of this discussion, because, as we all know, the cat is out of the bag, the barn door is open, and the genie is out of the bottle!!! No change in the legal environment can possibly contain P2P, and even if it could, the fundamental architecture of the Internet is such that massively distributed file sharing cannot be subject to effective legal control. If not "P2P," then something else, piggybacking on email, IM, or something else completely different.
The Grokster decision may have been a minor tactical victory for content providers, but it is a stupendous strategic loss.

Garnett on Transportation and the Urban Poor Nicole Stelle Garnett (Notre Dame Law School) has posted The Road from Welfare to Work: Informal Transportation and the Urban Poor (Harvard Journal on Legislation, Vol. 38, No. 73, 2001) on SSRN. Here is the abstract:
    Individuals struggling to move from welfare to work face numerous obstacles. This Article addresses one of those obstacles: lack of transportation. Without reliable transportation, many welfare recipients are unable to find and maintain jobs located out of the reach of traditional forms of public transportation. Professor Garnett argues that lawmakers should remove restrictions on informal van or jitney services, allowing entrepreneurs to provide low-cost transportation to their communities. This reform would not only help people get to work, but it could also provide jobs for low-income people.
I always enjoy Garnett's work.

Ellman on Unanimity in Brown v. Board Stephen Ellmann (New York Law School) has posted The Rule of Law and the Achievement of Unanimity in Brown (New York Law School Law Review Vol. 49, pp. 741-784, 2004-2005) on SSRN. Here is the abstract:
    How did Justice Stanley Reed come to join the Supreme Court's unanimous decision in Brown v. Board of Education? It is clear from the historical record that Reed's first inclination was to uphold the constitutionality of racially segregated education, and clear as well that in the end he put this inclination aside and joined, without any public qualification, in the Court's decision banning segregation. Perhaps Reed changed his mind about the meaning of the constitution; perhaps he changed his mind about the legitimacy of judges' making social policy in the name of the constitution; perhaps he decided to uphold the Supreme Court's strength as an institution by helping make this momentous decision unanimous; perhaps (though this I particularly doubt) he explicitly or implicitly traded his vote in Brown I for anticipated concessions on the remedy issue that the Court would address in Brown II. The fascinating historical record is ultimately elusive, and exactly what happened will likely never be completely certain, but each of these possibilities raises important questions about the meaning of the "rule of law." I argue here, inter alia, that if Reed's thinking was swayed by the gentle personal touch of Earl Warren and other justices, that emotional impetus was no breach of the rule of law; that if he voted against his own view of the law for the sake of unanimity, this too was within the historical, and legitimate, bounds of Supreme Court justices' decisionmaking discretion; and that if, in voting as he did, he found himself having to disregard some deeply-held beliefs, such as his opposition to judicial policymaking, for the sake of others, this need to act in light of, or in the face of, crosscutting moral demands is ultimately a central part of the rule of law. It is possible to imagine judges obliged to breach the rule of law - in Nazi Germany, for example, or in ante-bellum fugitive slave cases in the United States – but I do not see Justice Reed as having faced such a situation. Instead, the rule of law, rightly understood as the complex and supple social structure that it is, provided room for the choice that he made.
Fascinating topic.

Stark on Globalization, Women, and the Law Barbara Stark (Hofstra) has posted Women, Globalization, and Law: A Change of World on SSRN. Here is the abstract:
    Adrienne Rich describes a radical global change in the deliberately inconsequential - and gendered - terms of fashion. In the poem, however, fashion transforms mountains and oceans more venerable than patriarchy itself. Historically inconsequential women, similarly, are shaping globalization even as globalization transforms their lives. This change of world is profound and deeply contested. This Article first provides an overview and then analyzes this change of world in three specific contexts. It is not intended to be comprehensive; rather, I simply hope to suggest a few of the ways in which globalization affects the world's women and how they in turn affect globalization. I am particularly interested in the ways in which human rights law legitimates and furthers women's multiple, often conflicting, agendas and how feminist theories can be used to interrogate them and expose their complexity.

Smith on Autonomy, Equality, and Voting Rights Terry Smith (Fordham University School of Law) has posted Autonomy Versus Equality: Voting Rights Rediscovered on SSRN. Here is the abstract:
    Using empirical and other evidence, this paper examines the success of Shaw v. Reno and the Supreme Court's wrongful districiting cases in reducing the role of race in politics. Observing that the Court has shown an inability to distinguish between race as such and politics, the author argues that rather than the reduce the role of race, more than a decade of the wrongful districting cases has simply reduced minority political autonomy under the stalking horse of color-blindness. The author argues that this autonomy ought not be so easily disposable becaause it is rooted in the Constitution and in the exercise of the franchise.

Tuesday, June 28, 2005
Pearce on Inequality in the Market for Justice Russell G. Pearce (Fordham University School of Law) has posted Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help (Fordham Law Review, Vol. 73, p. 969, 2004) on SSRN. Here is the abstract:
    Commentators have argued that the solution to addressing unequal justice under law lies in increased government funding for legal services for the poor and increased pro bono hours from private lawyers. While these proposals could result in providing more lawyers for more low income people, they fail to account for the pervasive inequality resulting from the distribution of legal services primarily through the market. Given the influence of market distribution of legal services on legal outcomes, government-funded legal services and pro bono assistance can provide a valuable form of charity, but not an effective means of equalizing justice. The Essay instead suggests that a more effective way to enhance equal justice under law would be to rethink the proper role of the judge and make the judge an "active umpire" responsible for the quality of justice.

Brodin on "Fact Verdicts" Mark S. Brodin (Boston College - Law School) has posted Accuracy, Efficiency, and Accountability in the Litigation Process - The Case for the Fact Verdict (University of Cincinnati Law Review, Vol. 59, pp. 15-111, 1990) on SSRN. Here is the abstract:
    Although the jury trial is regarded as a lynchpin of the American concept of justice, ambivalence about the institution persists, particularly in the context of civil litigation. Some question whether the civil jury is an inefficient anachronism. This article argues that many of the concerns raised about civil juries in general are really concerns about the routine use of the general verdict, an institution that merges the jury's fact finding function and its role as an applier of law. The article argues that in many instances, replacing a general verdict with a special verdict would allow the jury to play to its strength as reporter of fact. At the same time, it would free the jury from the burden of interpreting and applying elaborate instructions of complex legal doctrine. Despite criticism that the special verdict weakens the constitutional powers of the jury, the article proposes the use of the special verdict in a manner that presents the jury with questions of actual fact while leaving the task of applying law to the judge. The special verdict, if used correctly, enhances the reliability and efficiency of the litigation process.

Leib on Choices About Choice Ethan Leib (Hastings) has posted Responsibility and Social/Political Choices about Choice; Or, One Way To Be a True Non-Voluntarist on SSRN. Here is the abstract:
    Linking choice with responsibility is a seduction our voluntarist society often cannot resist. We generally wish to hold people responsible in our tort and criminal law for their free choices—and conceive of responsibility as intimately bound up with personal choice. Samuel Scheffler may have diagnosed why many redistributive forms of liberalism often fail to command support in the public sphere: because they regularly deny what seems to be a basic moral intuition of our society—that people should be held responsible for their free choices. To be sure, the contours of what counts as a free choice and what counts as a product of duress, genetics, or upbringing sufficient to vitiate or mitigate responsibility is always a matter of vigorous ongoing contestation. Still, there remains a strong intuition in our society’s collective moral psychology that responsibility is somehow deeply connected to free choices. Indeed, we might not be able to make sense of ourselves as selves without feeling justified in claiming responsibility first and foremost for what we perceive to be our own free choices. The potential that the “Causal Thesis” may be true—that some weak form of determinism obtains —does not deter us: to reinforce our aspiration for free will, we tend to design our punitive policies and moral practices of praise and blame consistent with it, in spite of our failure to have a clear faith that our institutions contribute to members’ true freedom. We do this, some would argue, to retain the basic connection of responsibility to choice; the business of apportioning responsibility somehow seems manageable, justifiable, and legitimate if it is tied to choice. Accordingly, even the determinists among us are compatibilists. Here, I make an effort to think hard about the purported connection between responsibility and choice—and try to avoid the seduction of voluntarism. I build from the work of Meir Dan-Cohen, who has done the most to develop a theory of responsibility unmoored from choice. In the process, I touch upon love and creativity, two areas of social life that provide a window into a different conception of responsibility that can be used to guide our practices of praise and blame in morality, the criminal law, and torts.

Pettit on Contractual Morality Philip N. Pettit (Princeton University - Department of Politics) has posted Can Contract Theory Ground Morality? (MORAL THEORIES, J. Dreier, ed., Blackwell, 2005) on SSRN. Here is the abstract:
    The paper in is in three sections. In the first I offer a characterization of contractualism, explaining along the way that under this representation it is proof against two more or less obvious consequentialist objections. In the second section I argue that even when characterized in this manner, however, there remains an attractive and plausible way of taking contractualism that would make it consistent with consequentialism; this would cast it as a theory of the relatively right - the right relative to a practice - rather than the absolutely right. And then in the third section I show that even if this relativised way of taking it is rejected, as Scanlon himself would certainly reject it, there is a second way in which contractualism can in principle be rendered consistent with consequentialism; it may be cast as a partial rather than a complete theory of the absolutely right. Under neither of these ways of taking the doctrine would contractualism ground morality - not at least in every relevant sense - but under each it would retain a significant place in moral theory.

Monday, June 27, 2005
The Grokster Remand & Mandate The final paragraphs of Grokster reward a second & careful look. Here's what Souter writes:
    MGM?s evidence in this case most obviously addresses a different basis of liability for distributing a product open to alternative uses. Here, evidence of the distributors? words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement. If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was.
    There is substantial evidence in MGM?s favor on allbelements of inducement, and summary judgment in favorbof Grokster and StreamCast was error. On remand, reconsiderationb of MGM?s motion for summary judgmentb will be in order.
    The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
I see two things of interest here:
  • The first bolded passage--which nixes "imputed" fault and impliedly requires "statements and actins showing" intent to induce--reinforces the very narrow door the Supreme Court has opened for the music industry.
  • The second bolded passage--which suggests that MGM's motion for summary judgment might prevail--emphasizes the Court's belief that this record did have very strong evidence of intentional inducement.
Thanks to Glenn Edward for emphasizing the latter point in email!

Geidner on Volokh on Divisiveness and the Ten Commandments Cases Check out Chris Geinder's post on Law Dork. Here's a taste:
    Volokh wrote:
      What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions? My sense is that it's the latter, and by a lot . . . .
    Volokh is missing a step that occurs in between the displays and the rulings, and I think it's a relevant step. What is missing? It's the lawsuit. Volokh's "divisiveness" claim appears to be a more anti-"judicial activism" incarnation (pre-vacancy announcement?) of the good ol' "if it weren't for that damn ACLU (or Lambda or NAACP) stirring up problems where there aren't any, we'd all be happy" argument.

More on Footnote 12 For more on Footnote 12 of the Grokster decision, surf on over to Edward Lee's Lee Blog. Here is a taste:
    1. For the first time, the Supreme Court has expressly recognized that the Sony ruling is not just a doctrine, it is a "safe harbor "-- it is meant to allow technology developers a way to avoid liability by following certain guidelines. 2. The Court states that, if there is no other evidence of intent to induce infringement, the design of a product itself is not evidence of inducement. The Sony safe harbor protects product designs that are capable of substantial noninfringing uses in such cases. For example, the design of iPod won't support an active inducement claim. 3. The Court recognizes that technology developers don't have to adopt filtering or other techniques to stop copyright infringement sought by copyright holders. Such "affirmative steps" are not required (i) in the absence of other evidence of intentional inducement and (ii) if the device is otherwise capable of substantial noninfringing uses. Again, even though Apple could have designed the iPod to be incompatible with infringing files (or non-iTunes files), Apple's under no legal duty to do so.
Read the whole post!
Update: And for more on Footnote 12, check out Randy Picker on Picker's MobBlog with really terrific post.

Footnote 12 in Grokster Because Grokster was decided on an inducement theory, the crucial question--from a practical point of view--is what constitutes sufficient evidence of inducement. In particular, is evidence of "intent" required. If so, then "legal engineering" (see post below) can circumvent liability. If not, then things would get much more interesting. So consider this passage from Justice Souter's opinion:
    While the Ninth Circuit treated the defendants? failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users? activity, we think this evidence underscores Grokster?s and StreamCast?s intentional facilitation of their users? infringement. 12
And what is in Footnote 12?
    12 Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
Once again, the "beef" is in the footnote!

The Grokster Concurrences Six justices joined concurring opinions in Grokster. Ginsburg was joined by Rehnquist and Kennedy. Breyer was joined by Stevens and O'Connor. Ginsburg and Breyer disagree about the meaning of the Sony "substantial noninfring use" test, and that disagreement is potentially important to the future of P2P litigation, and hence to the future of copyright. What is the significance of these opinions? Here is a key passage from near the conclusion of Justice Ginsburg's concurrence:
    In sum, when the record in this case was developed, there was evidence that Grokster?s and StreamCast?s products were, and had been for some time, overwhelmingly used to infringe, ante, at 4?6; App. 434?439, 476? 481, and that this infringement was the overwhelming source of revenue from the products, ante, at 8?9; 259 F. Supp. 2d, at 1043?1044. Fairly appraised, the evidence was insufficient to demonstrate, beyond genuine debate, a reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time. On this record, the District Court should not have ruled dispositively on the contributory infringement charge by granting summary judgment to Grokster and StreamCast.
And here is a passage from Justice Breyer's opinion:
    When measured against Sony?s underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony?s test?that is, whether the company?s product is capable of substantial or commercially significant noninfringing uses.
    As in Sony, witnesses here explained the nature of the noninfringing files on Grokster?s network without detailed quantification. Those files include:
      --Authorized copies of music by artists such as Wilco, Janis Ian, Pearl Jam, Dave Matthews, John Mayer, and others. . . . --Free electronic books and other works from various online publishers, including Project Gutenberg. . . . --Public domain and authorized software, such as WinZip 8.1. . . . --Licensed music videos and television and movie segments distributed via digital video packaging with the permission of the copyright holder. . . .
And Justice Breyer adds:
    To be sure, in quantitative terms these uses account for only a small percentage of the total number of uses of Grokster?s product. But the same was true in Sony, which characterized the relatively limited authorized copying market as "substantial."
In other words, Ginsburg plus two disagrees with Breyer plus two about the meaning of the Sony "substantial noninfring use" standard. Ginsburg seems to endorse the idea that the standard is not met when the overwhelming majority of uses are infringing; Stevens disagrees with that proposition. The concurrences may indicate where the lines are drawn for the next wave of P2P litigation!

Grokster: A "Legal Engineering" Failure Over at MobBlog, Doug Lichtman has a post bemoaning the legal standard for inducement adopted by the Court:
    MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability.
I disagree with Doug about the normative question--but I agree with his reading of the Opinion of the Court, which brings me to "legal engineering." Each of the important P2P filesharing cases has involved a failure of "legal engineering"--the legal design of the P2P business. In the Napster case, the failures were the most egregious--with "smoking gun" memos indicating that the purpose of Napster was to faciliate copyright infringement. In Grokster, the failures were almost as bad. Here is an excerpt from the Opinion of the Court:
    It is undisputed that StreamCast beamed onto the computer screens of users of Napster-compatible programs ads urging the adoption of its OpenNap program, which was designed, as its name implied, to invite the custom of patrons of Napster, then under attack in the courts for facilitating massive infringement. Those who accepted StreamCast?s OpenNap program were offered software to perform the same services, which a factfinder could conclude would readily have been understood in the Napster market as the ability to download copyrighted music files. Grokster distributed an electronic newsletter containing links to articles promoting its software?s ability to access popular copyrighted music. And anyone whose Napster or free file-sharing searches turned up a link to Grokster would have understood Grokster to be offering the same filesharing ability as Napster, and to the same people who probably used Napster for infringing downloads; that would also have been the understanding of anyone offered Grokster?s suggestively named Swaptor software, its version of OpenNap. And both companies communicated a clear message by responding affirmatively to requests for help in locating and playing copyrighted materials.
If there had been good "legal engineering," then Napster or Streamcase or Grokster might well have prevailed in court. Of course, product promotion is a business decision, and it is possible that a deliberate choice was made--pay the price of increased liklihood of legal liability in order to market more effectively by emphasizing copyright infringement. But one wonders whether effective marketing strategies that were more subtle might have been available--if anyone had bothered to try.

The Treatment of Sony in Grokster One of the most important issues in Grokster case is the fate of Sony, the prior Supreme Court case,in which the Supreme Court held that the Betamax (VCR) would not serve as the basis for a contributory infringement action against Sony, because it was capable of "substantial noninfringing uses." Here is what today's unanimous opinion says about Sony:
    In sum, where an article is ?good for nothing else? but infringement, Canda v. Michigan Malleable Iron Co., supra, at 489, there is no legitimate public interest in its unlicensed availability, and there is no injustice in presuming or imputing an intent to infringe, see Henry v. A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 (1917). Conversely, the doctrine absolves the equivocal conduct of selling an item with substantial lawful as well as unlawful uses, and limits liability to instances of more acute fault than the mere understanding that some of one?s products will be misused. It leaves breathing room for innovation and a vigorous commerce. See Sony Corp. v. Universal City Studios, supra, at 442; Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 221 (1980); Henry v. A. B. Dick Co., supra, at 48.
This is a restatement of Sony that is actually quite favorable to the Sony rule--because the Court seems to say that the limit of Sony is where the good in question is "good for nothing else" but infringing uses. The Court continues:
    The parties and many of the amici in this case think the key to resolving it is the Sony rule and, in particular, what it means for a product to be ?capable of commercially significant noninfringing uses.? Sony Corp. v. Universal City Studios, supra, at 442. MGM advances the argument that granting summary judgment to Grokster and StreamCast as to their current activities gave too much weight to the value of innovative technology, and too little to the copyrights infringed by users of their software, given that 90% of works available on one of the networks was shown to be copyrighted. Assuming the remaining 10% to be its noninfringing use, MGM says this should not qualify as ?substantial,? and the Court should quantify Sony to the extent of holding that a product used ?principally? for infringement does not qualify. See Brief for Motion Picture Studio and Recording Company Petitioners 31. As mentioned before, Grokster and StreamCast reply by citing evidence that their software can be used to reproduce public domain works, and they point to copyright holders who actually encourage copying. Even if infringement is the principal practice with their software today, they argue, the noninfringing uses are significant and will grow.
But the Court sees the issue quite differently from the way it was framed by the parties:
    [The Ninth Circuit's] view of Sony, however, was error, converting the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM?s inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuit?s judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.
These may be the most important passages in Grokster--the dog that did not bark--because they leave Sony as it was.

Holding in Grokster Here is the statement from Justice Souter's Opinon for a unanimous Court:
    The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

AP Story on Grokster The AP Story is out:
    Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod. The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn't be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial.
The full story can be found here on MSNBC.

No Announcement on Supreme Court Retirements With the rumors flying about a possible Rehnquist (and/or O'Connor) retirement, the Court has adjourned without an announcement.

Grokster Announced The result in the Grokster has been announced. The vague radio report suggested a loss for Grokster, and Scotus Blog just reports a loss as well:
    The Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.
From the courtroom, we hear reports that it is a 9-0, with "inducement" as the core of the Court's rationale. The AP wire report suggestst he key is an "intent" to induce unlawful copying.

Grokster Today The Grokster decision should be announced momentarily. I will be participating in a group effort on Picker MobBlog, others include Doug Lichtman, Jessica Litman, Jim Speta, Julie Cohen, Lior Strahilevitz, Phil Weiser, Randy Picker, Ray Ku, Stuart Benjamin, Tim Wu, Tom Hazlett, and Wendy Gordon. Scotus Blog will have continuing coverage. On the Docket has a collection of links, the question presented, etc. Ernest Miller has a round-up of pre-decision commentary on Corante. I'll have comments in full here, with short posts over at MobBlog.

McGowan on Speech, Approximately David McGowan (University of San Diego School of Law) has posted Approximately Speech (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
    This essay comments on papers presented at the University of Minnesota by Lillian BeVier and Frederick Schauer. The essay argues that the proper subject of free speech analysis is the thing or things that make speech different from other, more freely regulated activities. From the well-accepted premise that it takes more than the presence of expression (which is present in almost all cases) to make a case a free speech case, the essay argues that conventional forms of free speech analysis, including content neutrality and scrutiny of regulatory motives, are imperfect proxies used to identify combinations of expressive costs and benefits. A case becomes a free speech case when the ratio of expressive gains to costs is high enough to justify courts in believing that expressive activity should be protected as speech. Neither content neutrality nor motive analysis can explain what should count as a cost or benefit, however, nor determine when they should be applied. These tools therefore must be treated as tools - proxies - for normative analysis, rather than as the end of analysis. To exemplify these claims, the essay defends the result in Bartnicki v. Vopper and the claim that non-traditional speakers, such as bloggers, should receive no less free speech protection than traditional media businesses.
I always learn from McGowan's work. Highly recommended!

Goldfarb on Ethics, Feminism, and Clinical Education Phyllis Goldfarb (Boston College - Law School) has posted A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education (Minnesota Law Review, Vol. 75, 1599-1699, 1990) on SSRN. Here is the abstract:
    Should law school classes cultivate professional skills or should they advance a broad intellectual agenda? This Article examines the relationship between theory and practice from the standpoint of two movements within law’s academy: clinical education and feminist jurisprudence, the fundamental methodological similarity of these two movements, and the problematic nature of the theory-practice label. This Article also examines the ethical impulse that sparks clinical education and feminism, suggesting that each movement’s perceptions of the theory-practice relationship are embedded in ethical concerns and have far reaching ethical implications. Section I of this Article begins with the reading of a text from the perspective of each of these intellectual movements. Section II examines more specifically the respective ways that feminist and clinical educators describe and justify their choice of methods. Section III surveys the similarities and differences between the methodologies of the two movements. This leads, in Section IV, to an analysis of the implications for clinical education if it drew more explicitly from feminist methods, the implications for feminist jurisprudence if it drew more explicitly from clinical methods, and the implications for legal education if it drew more explicitly from each. Section IV concludes with an exploration of how recasting our understanding of the theory-practice relationship also recasts our understanding of ethics and ethical inquiry.

Borgen on Treaty Conflicts Christopher Borgen (St. John's University - School of Law) has posted Resolving Treaty Conflicts (George Washington International Law Review, Vol. 37, 2005) on SSRN. Here is the abstract:
    If treaties do not hang together, then the international legal system will fall apart. But as treaties proliferate, they increasingly overlap and frustrate each other's goals. This article assesses whether there are effective rules and tools that policymakers can use to avert or resolve treaty conflicts in general, regardless of the specific policy-areas at issue. It finds that the Vienna Convention on the Law of Treaties (VCLT) neither addresses the types of conflicts that are relevant today nor is it successful in resolving certain types of conflicts it does address. In order to be a more coherent system, international law needs rules and procedures that assist States in avoiding or resolving treaty conflicts in a principled manner, without necessarily having to resort to international tribunals. This requires more than just a revision of the VCLT but rather a more rigorous approach to envisioning how treaties affect one another, a practice of drafting treaty clauses that takes this interplay into account, a purposive method of treaty interpretation that will better spot potential conflicts, and the acceptance and application of "default rules" in cases of conflict. The article has five main parts. Part I sets out a typology of treaty conflicts. Part II describes classic methods of conflict avoidance and resolution and how these norms have not been applied consistently and are of little use in the types of conflicts that are now common. Part III assesses the VCLT and shows, through recent examples from a variety of substantive areas, that the VCLT is not equipped for the types of problems States face today. Part IV reconsiders what one may learn from analogies to contractual and legislative conflicts. Part V draws from the previous sections to suggest options in addressing treaty conflicts and considers the implications of the preceding discussion on the status of international law as a coherent legal system.

Petit on Freedom in the Market Philip N. Pettit (Princeton University - Department of Politics) has posted Freedom in the Market (Philosophy, Politics and Economics, Forthcoming) on SSRN. Here is the abstract:
    This essay looks at how the market appears from the republican perspective of freedom as non-domination. It outlines this conception of freedom, identifying some relevant aspects of the approach and then goes on to look at three features of the market - property, exchange, and regulation - and at the ways in which they appear from within the republican perspective. The republican conception of freedom argues for important normative constraints on these arrangements without supporting rhetorical extremes to the effect that 'property is theft' or 'taxation is theft' or anything of that kind.

Sunday, June 26, 2005
Legal Theory Lexicon: Libertarian Theories of Law
    Introduction The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. There is, however, a counter-tradition in legal theory that challenges the legitimacy of law and contends that the role of law should be narrowly confined. This entry in the Legal Theory Lexicon will examine libertarian theories of law. As always, the Lexicon is aimed at law students—especially first year law students—with an interest in legal theory.
    The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go!
    Historical Roots of Contemporary Libertarianism One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.
      John Locke and the Social Contract The idea of a “social contract,” by which individuals in a state of nature contract with each other (or with a sovereign) to enter a “civil society” is one of the most important in all of political philosophy. Hobbes, Rousseau, and Locke all have distinctive theories of the social contract, but Locke’s version is important—both to libertarian theory and American constitutionalism. For the purposes of this discussion, the important idea is that a legitimate (or perhaps just) civil society has authority that is limited to those powers that the citizens-to-be would agree to delegate to the government in a social contract. Locke himself argued that the inconveniences of the state of nature would motivate a social contract that delegated to the government the power to protect property—understood in a broad sense that encompasses personal security and liberty—and the power to resolve disputes. But the Lockean social contract would not authorize government to restrict fundamental liberties or to take property from one citizen and transfer it to another. Of course, there is much more to day about Locke, but we are concerned here only with getting the gist of those Lockean ideas that are historically important to libertarian theory. Kant and Spheres of Autonomy Kant also made an important contribution to libertarian theory via his ideas of autonomy. There is no good way to summarize Kant’s theory of autonomy in a sentence or two, but the gist of his notion is the humans, as rational beings, have an interest in being autonomous in the sense of “self governing.” The role of law is to protect individual “spheres of autonomy” or “zones of liberty” in which individuals can act without interference from others. Suppose then, that our theory of proper legislation was that the laws should create maximum equal liberties for each, consistent with the same liberty for all. These two Kantian ideas—autonomy and maximum equal liberty—have played an important role in libertarian thinking about law.
      John Stuart Mill and the Harm Principle John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:
        . . . the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right...The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
      The harm principle is almost as controversial as it famous. In particular, there is a persistent worry about the problem of the baseline against which “harm” as opposed to “lack of advantage” might be measured.
    Theoretical Foundations of Libertarianism This very brief introduction to the historical roots of libertarianism in Locke, Kant, and Mill prepares the way for a discussion of the theoretical roots of libertarian legal theory. Libertarianism operates at the level of political theory: it is a view about questions like “What is the proper role of government?” and “When is coercive legislation legitimate?” Theories at this level of abstraction need foundations of some sort, either deep foundations in comprehensive moral theories like utilitarianism or shallow foundations that explain why deeper foundations are unnecessary. Let’s take a look at both sorts of foundations for libertarian legal theories.
      Consequentialist Foundations The consequentialist case for libertarianism is contingent—it depends on empirical and theoretical questions about the effects that various legal regimes have. Consequentialist libertarians believe that minimum government interference with individual liberty and free markets produces better consequences that extensive government regulation or redistribution of income. Historically, both John Stuart Mill and Adam Smith are associated with both libertarianism and consequentialism.
      There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions.
      Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways.
      In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions.
      Deontological Foundations Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions.
      In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below).
      Pluralist Foundations There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.
      One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- have good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.
    Libertarian Agendas for Legal Reform (or Revolution!) Even thought this is “Legal Theory Blog,” we should say something about the practical agendas of various libertarian legal theories. Let’s begin with modest libertarianism and proceed to its most radical (anarchist) forms.
      Modest Libertarian Reforms: Deregulation, Privatization, and Legalization At the very least, libertarians favor less government—as measured against the baseline of the current legal order in the United States. So, libertarians are likely to be in favor of more reliance on markets and less reliance on government. Hence, libertarians are likely to support programs of deregulation and privatization. Deregulation might include measures like abolition of consumer product safety regulations and the elimination of rent control laws. Privatization might include the federal government selling off the national park system or the Tennessee Valley Authority.
      A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution.
      Comprehensive Libertarian Reform: The Night-Watchman State A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty.
      The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions.
      Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to private firms that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services.
    The Rivals of Libertarian Legal Theory Libertarian theory can be criticized in a variety of ways. Sometimes the disagreement is mostly empirical: libertarians believe that life without the state would be better, and anti-libertarians believe it would be worse. But sometimes the critics of libertarianism have a radically different vision of the fundamental purposes of government. One such rival is egalitarianism—the view the distributive justice requires that goods (let’s leave the definition of good at the abstract level) should be divided equally, and that the creation of social equality is the primary aim of government. Some libertarians might accept this goal, but argue that maximum liberty is the best way to achieve it. Other libertarians might argue that liberty is the good that should be equally divided. But many libertarians see equality as the wrong goal for government. That is, sometimes libertarians and egalitarians differ fundamentally over the purpose of government.
    Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”)
    Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing.
    Conclusion Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory.
    Once again, this entry is bit too long, but I hope that I’ve provide a good starting point for your investigations of libertarianism. I’ve provided a very brief set of references for further exploration.

Saturday, June 25, 2005
Legal Theory Bookworm And speaking of Philip Pettit, the Legal Theory Bookworm recommends Republicanism: A Theory of Freedom and Government by Philip Pettit. The short-lived "republican revival" in American constitutional theory was what spurred by interest in this very rewarding book. Here's a blurb:
    This is the first full-length presentation of a republican alternative to the liberal and communitarian theories that have dominated political philosophy in recent years. Professor Pettit's eloquent and compelling account opens with an examination of the traditional republican conception of freedom as non-domination, contrasting this with established negative and positive views of liberty. The first part of the book traces the rise and decline of this conception, displays its many attractions and makes a case for why it should still be regarded as a central political ideal. The second part of the book looks at what the implementation of the ideal would imply for substantive policy-making, constitutional and democratic design, regulatory control and the relation between state and civil society.
Highly recommended

Download of the Week The Download of the Week is Rawls's Peoples (Rex Martin and David Reidy eds, ENVISIONING A NEW INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) by Philip Pettit. Here is the abstract:
    Social ontology does not drive political theory as axioms drive a theorem, but it can have an important shaping or constraining effect; this fits with Rawls's idea that our views on normative and related topics should be in 'wide reflective equilibrium' This paper tries to document the shaping effect of Rawls's social ontology on his theory of international justice. It begins with a characterization of Rawls’s rejection of cosmopolitanism. It reviews the claims that he makes about peoples and tries to articulate the ontology of peoples that they support. And then in the final section it shows how that ontology helps to explain his position on cosmopolitanism.
Download it while its hot!

Friday, June 24, 2005
Whittington on Pickerill Keith E. Whittington (Princeton University - Department of Politics) has posted James Madison has Left the Building: A Review of J. Mitchell Pickerill, Constitutional Deliberation in Congress (University of Chicago Law Review, Vol. 72, No. 3, Summer 2005) on SSRN. Here is the abstract:
    Empirical work on judicial and legislative politics sheds valuable light on the importance of judicial review and the ways in which constitutional limitations are most effectively maintained. Mitchell Pickerill's examination of constitutional deliberation in Congress in the latter half of the twentieth century helps us understand the limited policy impact of the Supreme Court's constitutional rulings, which in turn begins to explain the political sustainability of the power of judicial review. It also suggests the ways in which the judiciary and the legislature can complement one another in recognizing, debating, and implementing constitutional values and commitments, while cautioning us against overly optimistic conclusions about the possibilities of legislative constitutionalism.

Pettit on Rawls's Law of Peoples Philip N. Pettit (Princeton University - Department of Politics) has posted Rawls's Peoples (Rex Martin and David Reidy eds, ENVISIONING A NEW INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) on SSRN. Here is the abstract:
    Social ontology does not drive political theory as axioms drive a theorem, but it can have an important shaping or constraining effect; this fits with Rawls's idea that our views on normative and related topics should be in 'wide reflective equilibrium' This paper tries to document the shaping effect of Rawls's social ontology on his theory of international justice. It begins with a characterization of Rawls’s rejection of cosmopolitanism. It reviews the claims that he makes about peoples and tries to articulate the ontology of peoples that they support. And then in the final section it shows how that ontology helps to explain his position on cosmopolitanism.
A must read for those interested in theories of international justice. Pettit is superb!

Thursday, June 23, 2005
Originalism in the Blogosphere Brian Leiter recently had the following to say about originalism:
    Why is it even remotely relevant what those words meant when the Constitution was adopted? The right has been pushing this non-sequitur for a couple of decades now, but they still have no answers to the simplest questions about the legal or moral relevance of the "original meaning" or "original intent" of Constitutional provisions. Those who produced the "original" meanings have no claim of democratically sanctioned authority over us; they have no claim of special moral expertise or insight; to make the meaning of Constitutional provisions turn on historical details invisible in the text itself undermines rule of law values like the need for public and intelligible legal standards; and so on.
And Michael Rappaport replies:
    Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. While the specific effects of supermajority rules depend on the type of laws being passed, the circumstances, and the model of the legislative process that one employs, one can make certain generalizations. First, that supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited. Second, the greater support required under supermajority rules also means that laws must in general produce significant public benefits in order to pass. (For other arguments, see the paper.) While supermajority rules don’t make sense in all circumstances, they are desirable when applied to the passage of constitutional norms that will be entrenched against change by ordinary legislative majorities.
And Jack Balkin responds:
    Consider that often when the language of a Constitution is relatively abstract or vague, the language chosen is chosen because it is a compromise that many people with different expectations can agree upon. An example would be the words "privileges or immunities" or the words "equal protection of the laws." Supermajorities may rally around these words not because they limit future interpreters, but precisely because the words do not have clear boundaries of application, and they expect that people will fight out their application later on. Indeed, in particularly contested issues like fundamental rights (or federalism) this vagueness is precisely what is necessary to gain assent from a supermajority with very different substantive views.
    In addition, supermajorities may believe that it is better to speak in abstract or general terms rather than address constitutional provisions to specific problems of their day, because of a desire to allow the language to be applied in new ways to meet the challenges of the future. This seems to be the case with respect to the history of the adoption of the Fourteenth Amendment, to take only one example.
    Although Mike argues that his supramajority argument shows why appeals to original meaning operate as a constraint on judges, it is far from clear why it does so if we understand why abstract and vague constitutional language about rights and powers sometimes commands a supermajority. This language does so because it does not constrain, because it leaves things open for future development.
Yes and No. Yes, I think Balkin is surely right on two scores: (1) the constitution contains language that is general, abstract, and vague, and (2) sometimes these features were likely a product of the need for supermajority support. But no, that does not mean that the language does not constrain. Balkin's own argument turns against him at precisely this point. The need for supermajority support is one of these reasons that the Constitution rarely (perhaps never) is phrased in ways that leave things entirely open--with no constraining force. Imagine how difficult it would have been to get supermajority support for language that gave Congress the power "To regulate in ways that may or may not be limited," or for a clause that stated, "Congress shall not infringe rights of a scope to be determined at a future date." Precisely because supermajorities are required, the constitution is full of constraint. Provisions that provided no constraint at all would never have mustered supermajority support. To the extent that Balkin suggest otherwise, his argument is woefully underdeveloped. But that does not mean that there is no grain of truth to Balkin's point. As Randy Barnett argues in his book, Restoring the Lost Constitution, when the constitution uses general, abstract, and vague language--such as the phrase "privielges and immunities" or "freedom of speech," there will be much to determine within what Fred Schauer calls a "frame with fuzzy endges." Balkin is right to observe that in such cases, the constitutional "underdetermines" outcomes.
Balkin continues:
    Let me distinguish these concepts: Original public meaning asks what did the words used in the Constitution generally mean at the time they became law. Original intention asks what did the persons who had authority to create the law intend to be law (prohibited or permitted) by their use of those words. Original application asks how did people who lived at the time expect that the words of the Constitution, taken in their original meaning, would be applied to various situations?
    In many contexts, original meaning, original intention, and original application converge. However, where the words used in a constitution are relatively abstract, these three ideas tend to come apart. An example are the words "cruel and unusual punishments." Under original public meaning originalism the original meanings of the concepts used (and their meaning in combination with each other) should be preserved, but we are not necessarily bound by either the intentions of the persons who framed the words, or by the general public expectation of how those words would be applied. The concept of cruelty stays the same, but what we have to figure out what that concept means in our own time.
    Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application. It also conflates the nature of a concept with the particular set of issues before people at the time they considered constitutional language.
Yes and yes! I think Balkin has gotten this exactly right and his distinction between original meaning and original application is quite helpful. Bravo to Rappaport and Balkin!

Wednesday, June 22, 2005
Willis on Predatory Lending Lauren E. Willis (Loyola-LA Law School) has posted Decisionmaking & the Limits of Disclosure: The Problem of Predatory Lending on SSRN. Here is the abstract:
    Despite the importance of the transaction, many Americans are not making optimal home loan decisions, in two important respects. First, many borrowers are not obtaining home loans at optimal price terms, prices that a competitive market of borrowers engaged in effective price-shopping would produce. Second, the home loan decisions of many borrowers are not optimal choices with regard to risk of loss of the home, both in that the benefits of the loan are outweighed by the risk of loss of the home imposed by the loan, and in that borrowers are failing to take advantage of alternatives that are preferable, in cost-benefit terms, to shouldering that risk of loss. The households paying these high prices and facing this high risk of foreclosure are disproportionately African-American, Latino, and low to moderate income, households that already have fewer financial resources and significantly lower homeownership rates. The sale of these overpriced and overly risky home loans constitutes what has come to be known as "predatory lending." From a legal and policy perspective, what is puzzling about this problem is that borrowers are agreeing to these loans against their own self-interest and despite federally-mandated disclosures regarding loan price, and, for some loans, risk of foreclosure. This paper argues that the problem is not so puzzling when the structure of the home loan market and consumer decisionmaking within that market are carefully analyzed. Federal law regarding home lending is based on a rational actor model of borrower decisionmaking, with some allowances for bounded rationality. But borrowers frequently depart from the law's model due to widespread cognitive limitations, heuristics, biases, and emotional coping mechanisms. This paper explains how sellers are able to take advantage of these impediments to optimal decisionmaking and the structure of the market to convince significant numbers of borrowers to take loans that are overpriced and overly risky. The paper also makes a number of suggestions for reform.

de Figueiredo on Telecommunications Litigation John M.P. de Figueiredo (Princeton University - Program in Law and Public Affairs) has posted Strategic Plaintiffs and Ideological Judges in Telecommunications Litigation (Journal of Law, Economics and Organization, Forthcoming) on SSRN. Here is the abstract:
    This paper examines the effect of judicial ideology on the selection and outcome of telecommunications regulatory cases. Using a dataset on Federal Communications Commission orders and trials from 1990 to 1995, this paper shows that changes in the make-up of the bench of the D.C. Circuit Court of Appeals affects not only who wins the cases, but also the cases selected for litigation. Specifically, firms are more likely to bring cases when the agency decisions are ideologically distant from the bench than when the two actors are close ideologically. Judges, who are subsequently randomly selected, vote ideologically as the firms' actions predict they will, with Republicans judges overturning Democratic agency decisions and vice versa. The effect of judicial ideology on case election is larger than the effect of judicial ideology on case outcomes. Additionally the paper also shows that plaintiff characteristics have little impact in determining case outcomes, but a statistically significant impact on cases selected for litigation. Finally, the paper provides initial evidence that regulatory uncertainty may lead to more litigation.

Nolan-Haley on Law and Mediation Jacqueline M. Nolan-Haley (Fordham University School of Law) has posted The Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound (Cardozo Journal of Dispute Resolution, Vol. 6, p. 57, 2004) on SSRN. Here is the abstract:
    This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers anything that looks like justice. This article argues that if court-connected mediation is to offer alternatives to traditional rule-bound justice, it must return to its complementary role to litigation and adjudication.

Tuesday, June 21, 2005
Sunstein on Chevron Cass R. Sunstein (University of Chicago Law School) has posted Chevron Step Zero (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
    The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero - the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer's case-by-case view has enjoyed significant victories. Two trilogies of cases - one explicitly directed to the Step Zero question, another implicitly so directed - suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron's scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved.
Highly recommended!

Two by Ribstein Larry Ribstein has posted two papers on SSRN:
    Accountability and Responsibility in Corporate Governance:
      Managers' accountability to shareholders and corporations' responsibility to society are two important objectives of corporate governance. Some scholars argue that managers who are accountable to shareholders must neglect society's interest. But loosening this accountability leaves managers free to serve themselves, thereby increasing agency costs. This article makes three main contributions to the debate on the appropriate roles of accountability and responsibility. First, it shows how modern markets cause managers who are accountable to shareholders also attend to society's interests. Second, it shows that the debate is actually less important than it might first appear because the logistics of publicly held corporations substantially free managers from accountability to shareholders irrespective of whether society’s needs should compel that freedom. Third, the paper shows that the debate may be joined over whether partnership-type devices compelling distributions and allowing owner cash-out should be imported into publicly held firms. These devices would provide for more managerial accountability to shareholders, and therefore less flexibility to serve society's interests, than standard corporate governance mechanisms. The main impediment to use of these devices is the double corporate tax, which provides tax benefits for earnings retention and thereby encourages managerial control over corporate earnings. The future of the corporate tax may depend at least in part on the debate over accountability and responsibility in corporate governance.
    Sarbanes-Oxley after Three Years:
      This article reports on the experience with the Sarbanes-Oxley Act of 2002 in the three years since its passage. In general, the costs have been significant and the benefits elusive. This suggests some lessons for future regulation.
    Highly recommended!

Walker on the Problem of Collective Saving David I. Walker (Boston University School of Law) has posted The Social Insurance Crisis and the Problem of Collective Saving: A Commentary on Shaviro's 'Reckless Disregard' (Boston College Law Review, Vol. 45, pp. 1347-1361, 2004) on SSRN. Here is the abstract:
    Long-range Social Security and Medicare spending projections vastly exceed projected program revenues. If left unchecked, the resulting fiscal imbalance (estimated at $40 to $70 trillion in present value terms) would fall primarily on future generations. To avoid generational inequity, and perhaps fiscal meltdown, Professor Daniel N. Shaviro and others propose immediate fiscal austerity. This reply Commentary argues that near-term austerity is unlikely to play a significant role in overcoming the fiscal imbalance, which can be thought of as a balloon payment due mid-twenty-first century. Significant near-term fiscal austerity would eliminate the public debt and replace it with a public surplus. Political economy theory and U.S. public debt history suggest that this path is infeasible. This Commentary also stresses the importance of disaggregating the "Social Security and Medicare" problems. Contrary to popular belief, Medicare is by far the larger problem, and the Medicare imbalance is driven by projected spending increases outpacing overall economic growth indefinitely. These observations suggest that a focus on Medicare cost control, rather than revenue enhancement, is called for.

Guthrie & George on the Futility of Appeal Chris Guthrie and Tracey George (Vanderbilt University - School of Law and Vanderbilt University - School of Law) have posted The Futility of Appeal: Disciplinary Insights into the 'Affirmance Effect' on The United States Court of Appeals (Florida State University Law Review, Symposium Issue, Vol. 32, p. 357, 2005) on SSRN. Here is the abstract:
    In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

Parisi, Palmer and Bussani on Pure Economic Loss Francesco Parisi , Vernon V. Palmer and Mauro Bussani (George Mason University School of Law , Tulane Law School and University of Trieste School of Law) have posted The Comparative Law and Economics of Pure Economic Loss. Here is the abstract:
    Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with the predicates of economic analysis.

Monday, June 20, 2005
Stadler on Law School Teaching Sara K Stadler (Emory University - School of Law) has posted The Bulls and Bears of Law Teaching (Washington and Lee Law Review, 2006) on SSRN. Here is the abstract:
    This Essay provides readers with a unique perspective on the world of law teaching: Employing a quirky methodology, Professor Stadler predicts which subjects are likely to be most (and least) in demand among faculties looking to hire new professors in future - rating those subjects, like so many stocks, from "strong buy" to "weak buy" to "weak sell" to "strong sell." To generate the data on which her methodology is based, Professor Stadler catalogued, by subject, almost every Article, Book Review, Booknote, Comment, Essay, Note, Recent Case, Recent Publication, and Recent Statute published in the Harvard Law Review between and including the years 1946 and 2003. In the end, she found an interesting (and, she thinks, predictive) relationship between the subjects on which faculty choose to write and the subjects on which students choose to write.
I love this essay! Download it right away! Read it. Think about it! To whet your appetitite hear some of Stadler's recommendations:
    Strong Buys
      Bankruptcy Law
      Education Law
      Energy Law
      Family & Gender Law
      Health Law
      Labor & Employment Law
      Tax Law
    Weak Buys
      Alternative Dispute Resolution
      First Amendment Law
      Intellectual Property Law
      International and Compartive Law
      International Trade
      Law and . . .
      Media Law
    Weak Sells
      Civil Procedure and Evidence
      Contract Law
      Criminal Law & Procedure
      Election Law
      Legal History
      Property Law
      Tort Law
    Strong Sells
      Administrative Law
      Antitrust Law
      Commercial Law
      Constitutional Law
      Environmental Law
      Admiralty Law & Trusts and Estates
Download it while its hot hot hot!

Two by Yoo Christopher Yoo (Vanderbilt) has posted two papers on SSRN:
    Rethinking the Commitment to Free, Local Television: A Public Goods Analysis (Emory Law Journal, Vol. 52, Fall 2003):
      One of the most enduring tenets of U.S. television policy has been the commitment to localism. I suggest that the FCC's localism policy can be disaggregated into four, more specific commitments: (1) the preference for locally oriented over nationally oriented programming, (2) the preference for free (i.e., advertising-supported) over pay television, (3) the preference for single-channel over multi-channel television technologies, and (4) the preference for incumbents over new entrants and new technologies. I then analyze each of these commitments in light of what is perhaps the most distinctive feature of the television industry, which is the fact that its cost structure gives television programming many of the qualities of a public good, and conclude that each of these four commitments is fundamentally flawed. I then employ the public goods analysis I develop to critique the manner in which policy makers are regulating conventional television broadcasting, cable television, direct broadcast satellite systems (DBS), digital television, and third-generation wireless devices (3G).
    Architectural Censorship and the FCC (Southern California Law Review, Vol. 78, March 2005):
      Most First Amendment analyses of U.S. media policy have focused predominantly on behavioral regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children's educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by structural regulation, which focuses primarily on increasing the economic competitiveness the media industries. In this symposium contribution, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation represents a form of architectural censorship that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include: (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny. As a result, Congress and the FCC must bear the primary responsibility for safeguarding free speech values against these dangers.
    I always learn from Yoo's work. Both papers are recommended!

Rubenstein on Private Attorneys General William B. Rubenstein (University of California, Los Angeles - School of Law) has posted On What a "Private Attorney General" is - And Why it Matters (Vanderbilt Law Review, Vol. 57, No. 6, p. 2129, November 2004) on SSRN. Here is the abstract:
    Although the phrase private attorney general is commonly employed in American law, its meaning remains elusive. The concept generally serves as a placeholder for any person who mixes public and private features in the adjudicative arena. Yet there are so many players who mix public and private functions in so many different ways that the idea holds the place for a motley cast of disparate characters. My goal in this Article is to map these mixes - to distill from the singular private attorney general concept a range of distinct private attorneys general - and then to show why this new taxonomy is a helpful heuristic device. Specifically, I argue that the new taxonomy illuminates a weakness in the governing model of the class case. Scholars loosely associated with the law and economics movement have helpfully described class action lawsuits as presenting a classic agency problem: class action attorneys (agents) pursue the interests of their class member clients (principals) with little oversight or control. Consequently, class action scholarship has focused on identifying ways to better align the interests of the agents with those of their principals. This obsession with agent incentives assumed, without significant investigation, that there existed a stable group of principals with easily-identifiable interests. My typology demonstrates that different types of private attorneys general serve different types of principals, each of which combine public and private interests in different ways. If the goal of class action law is to align the attorneys' interests with those of their clients, it is necessary to identify clearly the precise nature of these underlying principals. That is the contribution of this piece.

Richman on Communities Creating Economic Advantage Barak D. Richman (Duke University School of Law) has posted How Communities Create Economic Advantage: Jewish Diamond Merchants in New York on SSRN. Here is the abstract:
    This paper argues that Jewish merchants have dominated the diamond industry because of their ability to enforce diamond credit sales. Diamonds are portable, easily concealable, and extremely valuable, thereby rendering courts powerless in policing diamond theft and credibly enforcing diamond credit sales. Since credit sales are highly preferable to simultaneous exchange, success in the industry requires an ability to enforce executory agreements that are beyond the reach of public courts. Relying on a reputation mechanism that is supported by a distinctive set of industry, family, and community institutions, Jewish diamond merchants have been able to enforce such contracts and have thus maintained industry leadership for several centuries. An industry arbitration system publicizes instances where promises are not kept. Intergenerational legacies induce merchants to deal honestly through their very last transaction, so that their children may inherit valuable livelihoods. And ultra-Orthodox Jews, for whom participation in their communities is paramount, provide important value-added services to the industry without posing the threat of theft and flight.

Sunday, June 19, 2005
Legal Theory Lexicon: The Counter-Majoritarian Difficulty
    Introduction The counter-majoritarian difficulty may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch. Whatever Bickel actually meant by the phrase, it has now taken on a life of its own. The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickel’s naming of this problem, it dominated constitutional theory.
    This entry in the Legal Theory Lexicon explores the counter-majoritarian difficulty, efforts to solve the problem and to dissolve it. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. As is frequently the case with the Lexicon, we will explore a very big topic in just a few paragraphs. Many articles and books have been written about the counter-majoritarian difficulty; we will only scratch its surface. Moreover, any really deep discussion of the counter-majoritarian difficulty would lead (sooner or later) to almost every other topic in constitutional theory. The Lexicon is “quick and dirty,” and definitely not deep, comprehensive, or authoritative.
    Democracy and Majoritarianism The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacy (see the Legal Theory Lexicon entry on Legitimacy ). We all know the basic story: the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.” Of course, it isn’t that simple. Among the complexities are the following:
    • There are many different theories of democratic legitimacy, and only some of them emphasize “majoritarianism” as the key factor.
    • Some theories of democratic legitimacy rely on the idea of “consent of the governed,” but it is very difficult to mount an argument for actual consent to existing majoritarian institutions or their actions.
    • The idea of “legitimacy” is itself deeply controversial and might even be called obscure. What legitimacy is and why it is important are themselves deep and controversial questions.
    Despite these complexities, most of us have a rough and ready appreciation for the idea that actions by democratic majorities have some kind of legitimacy that is lacking in the actions of unelected judges. At any rate, that idea is the normative foundation of the counter-majoritarian difficulty.
    Constitutional Limits on Majoritarianism The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any constitution that constrains majority will. Of course, there could be constitutions that impose no limits at all on the will of democratically elected legislatures. For example, a regime of unicameral parliamentary supremacy might be said to have a constitution that allows a parliamentary majority to pass any legislation that it pleases and to override the courts or executive whenever the legislature is in disagreement with their actions. Of course, even this simple constitution might constrain the legislature in a certain sense. For example, legislation that attempts to constrain the action of a future legislature might be “unconstitutional.” Another example might be legislation that abolishes elections and substitutes a system of self-perpetuating appointments. Similarly, a legislature might pass a “bill of rights” that purports to bind future legislatures, even in the absence of an institution of judicial review.
    The Institution of Judicial Review Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for a regime that incorporates the institution of judicial review incorporating judicial supremacy. In the United States, for example, the courts have the power to declare that acts of Congress are unconstitutional, and if the Supreme Court so declares, the Congress does not have the power to override its decision.
    The institution of judicial review is counter-majoritarian in part because federal judges are not elected and they serve life terms. Presidents are elected every four years; members of the House of Representatives every two years; and Senators serve staggered six year terms. Of course, judges and justices are nominated by the President and confirmed by the Senate and these features create some degree of democratic control of the judiciary. Nonetheless, on the surface, it certainly looks like judicial review is an antidemocratic institution. Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense.
    The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court. If the Supreme Court limited itself to enforcing the separation of powers between the President and Congress or to the enforcement of the relatively determinate provisions of the constitution that establish the “rules of the game” for the political branches, then the counter-majoritarian difficulty might not amount to much. But the modern Supreme Court has been involved in the enforcement of constitutional provisions that general, abstract, and seemingly value laden—examples include the freedom of speech, the equal protection clause, and the due process clause of the constitution. The counter-majoritarian difficulty seems particularly acute when it comes to so-called “implied fundamental rights,” like the right to privacy at issue in cases like Griswold v. Connecticut and Roe v. Wade.
    Answering the Countermajoritarian Difficulty How have constitutional theorists attempted to answer the counter-majoritarian difficulty? The problem with answer that question is that there are so many answers that it is difficult to single out three or four for illustrative purposes. So remember, the “answers” that are discussed here are arbitrary selections from a much longer list.
      Discrete and Insular Minorities One famous answer to the counter-majoritarian difficulty focuses on the idea of “discrete and insular minorities.” The background to this answer is the premise that in the long run, most individuals win some and lose some in the process of democratic decision making. Shifting coalitions among various interest groups “spread the wealth” and the pain—no one wins all the time or loses all the time. Or rather, normally wins and losses are spread across the many different groups that constitute a given political society. However, there may be some groups that are excluded from the give and take of democratic politics. Some groups may be so unpopular (or the victims of such extreme prejudice) that they almost always are the losers in the democratic process. The famous “Footnote Four” of the United States Supreme Court’s decision in the Carolene Products case can serve as the germ of an answer to the counter-majoritarian difficulty. Judicial review is arguably legitimate when it serves to protect the interests of “discrete and insular minorities” against oppressive actions by democratic majorities.
      Anti-Democratic Political Theory Another answer to the counter-majoritarian difficulty admits that judicial review is antidemocratic but seeks to justify this feature by appeal to some value that trumps democratic legitimacy. This isn’t really just one answer to the difficulty—it is a whole lot of answers that share a common feature—the appeal to anti-democratic political values. For example, it might be argued that “liberty” is a higher value than “democracy” and hence that judicial review to protect liberty is justified. Or it might be argued that “equality” is a higher value, or “privacy,” or something else. Obviously, there is a lot more to be said about this kind of answer to the counter-majoritarian difficulty, but for the purposes of this Lexicon entry, this incredibly terse explanation will have to suffice.
      Dualism and High Politics Yet a third approach to the counter-majoritarian difficulty attempts to turn the problem upside down—arguing that judicial review is actually a democratic institution that checks the antidemocratic actions of elected officials. Whoa Nelly! How does that work? This third approach is strongly associated with the work of Bruce Ackerman—perhaps the most influential constitutional theorist since Alexander Bickel. Ackerman’s views deserve at least a whole Lexicon entry, but the gist of his theory can be stated briefly. Ackerman argues for a view that can be called “dualism,” because it distinguishes between two kinds of politics—“ordinary politics” (the kind practiced every day by legislators and bureaucrats) and “constitutional politics.” What is “constitutional politics”? And how is it different from “ordinary politics”? Ackerman’s answers to these questions begin with the idea that ordinary politics isn’t very democratic. Why not? We all know the answer to that question. Ordinary politics are dominated by self-interested politicians and manipulative special interest groups. The people (or “We the People” as Ackerman likes to say) don’t really get involved in ordinary politics, and therefore, ordinary politics are not really very democratic. Constitutional politics, by way of contrast, involve extraordinary issues that actually “get the attention” of the people. For example, the ratification of the Constitution of 1789 caught the attention of ordinary citizens, as did the Reconstruction Amendments (the 13th, 14th, and 15th) following the Civil War. When “We the People” become engaged in constitutional politics, we are giving commands to our agents—Congress and the President—and the Courts are merely enforcing our will when they engaged in judicial review—so long as they are faithful to our commands.
      Whew! That was a lot of “We the People” talk. I need a break from channeling Ackerman, before I can finish this entry! OK. I’m back!
      Ackerman’s theory emphasized the idea of distinct regimes that resulted from “constitutional moments”—periods of intense popular involvement in constitutional politics. Recently, Jack Balkin and Sandy Levinson have advanced a similar theory—which emphasizes that idea of “high politics”—the great popular movements that seek to influence the decisions of the Supreme Court on issues like abortion or affirmative action. I can’t do justice to their theory here, but the idea is that the Supreme Court may be responding to democratic pressures when it makes the really big constitutional decisions.
    Dissolving the Counter-Majoritarian Difficulty So far, I’ve been discussing responses to the counter-majoritarian difficulty that operate within normative constitutional theory. There is another important line of attack, however. The counter-majoritarian difficulty rests on a positive (factual) assumption—that the Supreme Court does, in fact, act contrary to political majorities. Some political scientists have argued that this positive assumption is incorrect—that the Supreme Court rarely, if ever, acts contrary to the wishes of the dominant political faction. There could be many reasons for that—one of them being the Supreme Court’s awareness that if it were to buck Congress and the President, it is vulnerable to a variety of political reprisals. Congress might strip the Court of jurisdiction. Ultimately, the President might simply refuse to cooperate with Court’s decisions.
    There is another side to this story. There may be reasons why elected politicians prefer for the Supreme Court to “take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s involvement in some hot button issues may actually help political parties to mobilize their base: “Give us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on [abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually have been welcomed by the political branches that, on the surface, appear to have been thwarted.
    Conclusion Once again, I’ve gone on for too long. I hope you will forgive me, and I hope that this Lexicon entry has given you food for thought about the counter-majoritarian difficulty. Below, I’ve included a list of references to articles that focus on the difficulty itself and also to some of the authors who have attempted to give answers to Bickel’s famous problem.
    References This is a very incomplete list, emphasizing the works that are focused on “the counter-majoritarian difficulty” in particular and omitting many important works of constitutional theory that deal with the counter-majoritarian difficulty as part of a larger enterprise.
      Bruce Ackerman, We the People: Foundations (1993) & We the People: Transformations (1998).
      Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001).
      Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-18 (2d ed. 1986).
      Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 Geo. Wash. L. Rev. 1373 (1998); Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933 (2001).
      Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 334 (1998).
      Barry Friedman, The History Of The Countermajoritarian Difficulty, Part II: Reconstruction's Political Court , 91 Geo. L.J. 1 (2002).
      Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Three: The Lesson Of Lochner, 76 N.Y.U. L. Rev. 1383 (2001).
      Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. Pa. L. Rev. 971 (2000).
      Barry Friedman, The Birth Of An Academic Obsession: The History Of The Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002).
      Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004).
      Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995).

Saturday, June 18, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Groundwork of the Metaphysics of Morals by Immanuel Kant. Actually, Kant's classic book--which has introduced generations of students to his moral philosophy--needs no recommendation. But I thought it might be worthwhile to recommend this particular edition, which is in the Cambridge Texts in the History of Philosophy and includes an introduction by Christine Korsgaard. What the hell, I might as well include the blurb:
    Immanuel Kant's Groundwork of the Metaphysics of Morals ranks alongside Plato's Republic and Aristotle's Nicomachean Ethics as one of the most profound and influential works in moral philosophy ever written. In Kant's own words its aim is to search for and establish the supreme principle of morality, the categorical imperative. This edition presents the acclaimed translation of the text by Mary Gregor, together with an introduction by Christine M. Korsgaard that examines and explains Kant's argument.
If by chance, you haven't read the Groundwork, this is the edition to buy!

Download of the Week The Download of the Week is Federalism and the Spending Power from Dole to Birmingham Board of Education by Lynn Baker. Here is the abstract:
    This chapter in a forthcoming collection of essays to be published by Cambridge University Press (THE REHNQUIST LEGACY, C. Bradley, ed., forthcoming 2006) discusses Chief Justice Rehnquist's legacy for federalism with particular reference to the spending power. After describing the opinion in Dole and tracing the apparent origins of the five-prong test that Rehnquist set out there and that the Court has never suggested altering, I discuss three later cases: Davis v. Monroe County School Board (1999), Pierce County v. Guillen (2003), and Jackson v. Birmingham Board of Education (2005). Of these, Guillen is the most intriguing. In 2001, the Supreme Court of Washington in Guillen became the first state or federal court to hold a federal statute to exceed Congress's spending power. When the U.S. Supreme Court heard the case, however, Chief Justice Rehnquist (and the rest of the "States' Rights Five") seemed aggressively to avoid reaching the spending power issue even though Guillen arguably presented a relatively easy case of a statute that exceeded Congress's powers under both the Spending Clause and the Commerce Clause. My tentative thesis is that Guillen can be reconciled with Rehnquist's other Commerce Clause and spending power decisions to date if one acknowledges that what drives his jurisprudence in both areas is a (sometimes) unstated inquiry into whether the congressional statute would regulate an area "where states historically have been sovereign," or whether it instead involves a traditional and appropriate federal function. That is, Rehnquist's legacy in the area of federalism and the spending power may be a quiet, and to date only partially successful, revival of the doctrine he set forth in 1976 in National League of Cities v. Usery and that the Court in 1985, over his dissent, declared "unsound in principle and unworkable in practice" in Garcia v. San Antonio Metropolitan Transit Authority.
Download it while its hot!

Friday, June 17, 2005

Chandler the Network Structure of Supreme Court Jurisprudence Seth J. Chandler (University of Houston Law Center) has posted The Network Structure of Supreme Court Jurisprudence on SSRN. Here is the abstract:
    In common law jurisdictions such as the United States, courts frequently resolve disputes by citation and analysis of reports of prior legal cases. The law may thus be thought of as a giant network containing textual information embedded in cases (nodes) and relationship information called citations (arcs) going from node to node. In recent years, the science of studying networks has developed and, while there had been some rudimentary attempts to look at subsets of the vast legal network, until recently there had been little done to take advantage of modern technology and modern network theory in that effort. This is a somewhat technical article written for a Mathematica conference that borrows techniques developed largely in sociology and physics to learn about Supreme Court jurisprudence simply by a study of its network structure. It is very much complementary to the work of Professor Thomas A. Smith of the University of San Diego Law School on “The Web of Law.” Although the first half of the paper focuses on tool building and computer science issues in a way that may put off more law-oriented readers, the second half of the article relates quite directly to the law. It shows that federal jurisdiction and commerce clause cases are, quite literally, central to Supreme Court jurisprudence. It argues that the degree distribution of the Supreme Court network does not quite fit that of a scale free network but rather fits more closely that of a Weibull distribution, which is generated by the lifetime of objects. It suggests that rights of free speech and association may lie at the "core" of Supreme Court jurisprudence and thus pose issues of particular complexity. It is my hope that this article, along with other recent work, will catalyze a set of studies in this field that will expand to cover other judicial systems and yet more sophisticated analysis of the rich network information they contain.
This is fascinating stuff. Dont forget to check out Tom Smith's pioneering work in this area:Download 'em while they're hot!

Adams on Radical Integration Michelle Adams (Seton Hall University School of Law) has posted Radical Integration (California Law Review, Forthcoming) on SSRN. Here is the abstract:
    Radical Integration explores the two primary theoretical frameworks for achieving black liberation: the integration approach (which can be understood as assimilationist) and the identity-based, community-centered approach (which can be understood as isolationist). I argue that neither framework, by itself, is enough to ensure the achievement of true black liberation. I extract key elements of each approach and harmonize them to envision an entirely new framework. This framework, "radical integration," refocuses on the impact of racial segregation on the black community and simultaneously recognizes the need to address concerns about black identity and black authenticity in an integrated environment.

New from Law & Politics Review
    GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER, by Gerry Simpson. New York: Cambridge University Press, 2004. 414pp. Hardback. $95.00/ £65.00. ISBN: 0521827612. Paper. $35.00/ £22.99. ISBN: 0521534909. Reviewed by Maxwell O. Chibundu.
    PROVISIONAL MEASURES IN INTERNATIONAL LAW: THE INTERNATIONAL COURT OF JUSTICE AND THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, by Shabtai Rosenne. Oxford: Oxford University Press, 2005. 262pp. Hardcover. $125.00/£60.00. ISBN: 0-19-926806-1. Reviewed by Christopher C. Joyner.
    CONSTRUCTING VICTIMS' RIGHTS: THE HOME OFFICE, NEW LABOUR, AND VICTIMS, by Paul Rock. NY: Oxford University Press, 2004. 608pp. Hardcover. $150.00/ £75.00. ISBN: 0-19-927549-1. Reviewed by Susan Sarnoff.
    HOUSING SEGREGATION IN SUBURBAN AMERICA SINCE 1960: PRESIDENTIAL AND JUDICIAL POLITICS, by Charles M. Lamb. New York, NY: Cambridge University Press, 2005. 318pp. Hardback $70.00 / £45.00. ISBN: 0-521-83944-0. Paper $24.99 / £18.99. ISBN: 0-521-54827-6. Reviewed by Joyce A. Baugh.
    TERM LIMITS AND THE DISMANTLING OF STATE LEGISLATIVE PROFESSIONALISM, by Thad Kousser. New York: Cambridge University Press, 2005. 286 pp. Paperback: $29.99 / £17.99. ISBN: 052154873X. Hardcover: $70.00 / £45.00. ISBN: 0521839858. Reviewed by Ashlyn Kuersten.

Wenger on Slavery as a Takings Clause Violation Kaimipono Wenger (Thomas Jefferson School of Law) has posted Slavery as a Takings Clause Violation (American University Law Review, Vol. 53, No. 191, 2004) on SSRN. Here is the abstract:
    This Article argues that slavery was a violation of the Takings Clause of the United States Constitution. Slaves, like all people, possessed a property right of self-ownership. When the government appropriated that property, through laws establishing slavery, the rightful owners of the property - the slaves - suffered uncompensated physical, regulatory and derivative takings. Victims of slavery, like victims of other impermissible takings, are constitutionally entitled to just compensation under the Takings Clause. This Article concludes by examining some potential judicial and legislative consequences of treating slavery as a Takings Clause violation.

Thursday, June 16, 2005
Perry on Universality, Relativity, and Religious Freedom Michael J. Perry (Emory University School of Law) has posted A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture (Roger Williams University Law Review, Vol. 10, pp. 349-389, 2005) on SSRN. Here is the abstract:
    This Essay is the basis of a presentation I made to a symposium on religious freedom at the Roger Williams University School of Law in October 2004. I inquire, in the Essay, whether we who affirm (what I call) the morality of human rights should want the international law of human rights to protect a right to religious freedom. Along the way, I offer some reflections on the relevance of cultural relativity to the project of universalizing human-rights-claims.

Baker on the Spending Power Lynn A. Baker (University of Texas Law School) has posted Federalism and the Spending Power from Dole to Birmingham Board of Education (THE REHNQUIST LEGACY, Curtis Bradley, ed., Cambridge University Press, 2006) on SSRN. Here is the abstract:
    This chapter in a forthcoming collection of essays to be published by Cambridge University Press (THE REHNQUIST LEGACY, C. Bradley, ed., forthcoming 2006) discusses Chief Justice Rehnquist's legacy for federalism with particular reference to the spending power. After describing the opinion in Dole and tracing the apparent origins of the five-prong test that Rehnquist set out there and that the Court has never suggested altering, I discuss three later cases: Davis v. Monroe County School Board (1999), Pierce County v. Guillen (2003), and Jackson v. Birmingham Board of Education (2005). Of these, Guillen is the most intriguing. In 2001, the Supreme Court of Washington in Guillen became the first state or federal court to hold a federal statute to exceed Congress's spending power. When the U.S. Supreme Court heard the case, however, Chief Justice Rehnquist (and the rest of the "States' Rights Five") seemed aggressively to avoid reaching the spending power issue even though Guillen arguably presented a relatively easy case of a statute that exceeded Congress's powers under both the Spending Clause and the Commerce Clause. My tentative thesis is that Guillen can be reconciled with Rehnquist's other Commerce Clause and spending power decisions to date if one acknowledges that what drives his jurisprudence in both areas is a (sometimes) unstated inquiry into whether the congressional statute would regulate an area "where states historically have been sovereign," or whether it instead involves a traditional and appropriate federal function. That is, Rehnquist's legacy in the area of federalism and the spending power may be a quiet, and to date only partially successful, revival of the doctrine he set forth in 1976 in National League of Cities v. Usery and that the Court in 1985, over his dissent, declared "unsound in principle and unworkable in practice" in Garcia v. San Antonio Metropolitan Transit Authority.

Forbath on Liberal America's Long Life William E. Forbath (University of Texas at Austin - School of Law) on Liberal America's Long Life has posted The Long Life of Liberal America: Law and State-Building in the U.S. and U.K. (Law and History Review, Forthcoming) on SSRN. Here is the abstract:
    This brief essay compares the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by the ambivalent and lawyerly brand of American liberalism that animated figures like Charles Evan Hughes and Roscoe Pound - poised between progressive commitments to social reform, social provision, and administrative-state-building, on one hand, and older, classical liberal commitments to limited and decentralized, dual federalist government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. The architecture of what we've come to call the New Deal state and of America's system of social provision was not the product of robust New Deal liberalism. If New Dealers had been able to design the state and American public social insurance according to their specifications, its institutions (and their justificatory language) would have looked dramatically different - and far more like England's. We better understand the state that actually emerged in the U.S. as the product of a half-century of conflict and accommodation between the new liberalism of Progressive and New Deal reformers and the old or classical legal liberalism of the Lochner Constitution, and the jurists, lawyers, and politicians who hewed to it. The modern American welfare and regulatory state was not one that any single group intended or envisioned; but it bore the deep imprint of Lochner's diverse defenders and the court- and common law-dominated institutional order they fought to preserve. Small wonder, the essay suggests, that members of the legal elite, such as Hughes and Pound, who combined vast energy, abilities, and ambition with a self-conscious and astute positioning of themselves as mediators between old and new liberalisms, left such durable legacies.

Chamallas on the Kingsfield Dilemma Martha Chamallas (Ohio State University - Michael E. Moritz College of Law) has posted The Shadow of Professor Kingsfield: Contemporary Dilemmas Facing Women Law Professors (William & Mary Journal of Women and the Law, Vol. 11, 2005) on SSRN. Here is the abstract:
    This essay discusses the predicament of women law professors in an era when the representation of women on law faculties has reached a "critical mass." It explores three mechanisms for reproducing gender inequality: (1) self-fulfilling stereotypes, (2) gender-specific comparison groups, and (3) the accumulation of small disadvantages. Chamallas uses stories from her own and colleagues' experiences to illustrate contemporary forms of bias.

New from Law & Politics Book Review
    CYBERCRIME: A REFERENCE HANDBOOK, by Bernadette H. Schell and Clemens Martin. Santa Barbara, CA: ABC-CLIO, 2004. 247pp. Hardcover. $50.00. ISBN: 1-85109-683-3. Reviewed by Alan Gaitenby.
    LAW IN AMERICA: A SHORT HISTORY, by Lawrence M. Friedman. New York: The Modern Library, 2004. 224pp. Paper. $12.95. ISBN: 0-8129-7285-6. Hardcover. $19.95. ISBN: 0-375-50635-7. Reviewed by Bradley C. Canon.
    THE LOUISIANA CIVILIAN EXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION, by Vernon Valentine Palmer. Durham, NC: Carolina Academic Press, 2005. 304pp. Paper. $35.00. ISBN: 1-59460-060-0. Reviewed by Rick A. Swanson.
    TERRORISM AND COUNTER-TERRORISM: CRIMINOLOGICAL PERSPECTIVES, by Mathieu Deflem (ed.). Amsterdam: Elsevier, 2004. 226 pp. Cloth. £63.50 / €95.00 / $95.00. ISBN: 0-7623-1040-5. Reviewed by Priscilla H. M. Zotti.

Wednesday, June 15, 2005
Hillman on the Culture of Partnership Robert W. Hillman (University of California, Davis School of Law) has posted Law, Culture and the Lore of Partnership: Of Entrepreneurs, Accountability, and the Evolving Status of Partners on SSRN. Here is the abstract:
    In important respects, contemporary partnerships are modifying the associational form under which they operate in ways that represent clear departures from the classic partnership model. This article explores the mystique of partnership, the role of partnership in our culture, and how partnership law has evolved to encourage the structuring of relationships that bear little resemblance to the partnership model on which the law was developed (e.g., nonequity partners in professional services firms). It considers the implications of this change and questions whether long-standing assumptions concerning what it means to be a partner continue to hold.

New from Law & Politics Review
    PUTTING LIBERALISM IN ITS PLACE, by Paul W. Kahn. Princeton: Princeton University Press, 2004. 336pp. Cloth. $29.95 / £18.95. ISBN: 0-691-12024-2. Reviewed by James Magee.
    CORPORATE GOVERNANCE IN GOVERNMENT CORPORATIONS, by Michael J. Whincop. Aldershot, England & Burlington VT: Ashgate Publishing Ltd., 2004. 258pp. Hardback. $99.95/£55.00. ISBN: 0 7546 2276 2. Reviewed by Daniel J.H. Greenwood.
    CONSTITUTIONAL GOODS, by Alan Brudner. Oxford: Oxford University Press, 2004. 464pp. Hardback. $135.00 / £70.00. ISBN: 0199274665. Reviewed by Beau Breslin.
    ON THE RULE OF LAW: HISTORY, POLITICS, THEORY, by Brian Z. Tamanaha. Cambridge: Cambridge University Press, 2004. 188pp. Hardback. $70.00/£40.00. ISBN: 0-521-84362-6. Paper. $28.99/£16.99. ISBN: 0-521-60465-6. Reviewed by Mark Welton.

Curtis on St. George Tucker Michael Kent Curtis (Wake Forest University - School of Law) has posted St. George Tucker and the Legacy of Slavery (William & Mary Law Review, 2005) on SSRN. Here is the abstract:
    St. George Tucker (1752-1827) was a distinguished law teacher, legal scholar, and judge. This paper examines Tucker's condemnation of slavery and how other aspects of Tucker's thought were in tension with his expressed desire to rid Virginia of slavery. For example, Tucker's concern with protecting wealth from a more democratic political process led him to favor legislative representation in the Virginia legislature that gave extra political power to slaveholding areas. Such representation made legislative action against slavery (quite difficult in any case) even more unlikely. Over-representation of slave holding areas and the slave system itself also probably undermined other values Tucker expressed, such as publicly supported education. While Tucker strongly favored protection for wealth (at that time mostly wealth in land and slaves), he paradoxically favored laws that he said were essential to democracy and that (to some extent) limited concentration of wealth. These included requirement of equal distribution to all children of those who died without a will. Tucker strongly opposed the Sedition Act of 1798. While many of his objections were based on states' rights and limited federal powers, he also asserted that suppression of discussion of public men and public measures was incompatible with democracy. He explicitly rejected that claim that the act could be justified as suppression of "licentiousness." By the time of his 1803 treatise, however, Tucker seems to give states somewhat more latitude to suppress "licentious" speech. After Tucker's death, of course, some of the tension in Tucker's thought became more apparent. Southern states suppressed anti-slavery speech. Indeed, much of Tucker's Dissertation on Slavery seems to violate the later Southern laws. A states' rights constitutional philosophy (similar to that espoused by Tucker) was deployed as a weapon to protect slavery and later to oppose Reconstruction, civil rights laws, and congressional statutes designed to protect the constitutional rights of Republicans and blacks in the South, from both state action and "private" terror. Tucker's contributions include a strong condemnation of slavery, a recognition that dissent was not disloyal, and an early very strong defense of a functional view of free speech as crucial to democratic government. He also advocated a harsh "black code" to regulate newly freed slaves, a political system strongly tilted toward protecting wealthy slaveholders, and a limited view of federal power that later would be deployed to defend slavery and its legacy from federal power.

Sterk on Claeys Stewart E. Sterk (Cardozo Law School) has posted The Inevitable Failure of Nuisance-based Theories of the Takings Clause: A Reply to Professor Claeys (Northwestern University Law Review, Vol. 99, p. 231, 2004) on SSRN. Here is the abstract:
    Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.

Tuesday, June 14, 2005
IVR Encyclopedia of Jurisprudence, Legal Theory, and Philosophy of Law Check it out here.

Census of Law Professor Blogs Over at PrawfsBlawg, Daniel Solove has been guest blogging. He's done a very helpful census of law professor blogs--follow this link.

Sterk on Regulatory Takings & Federalism Stewart E. Sterk (Cardozo Law School) has posted The Federalist Dimension of Regulatory Takings Jurisprudence (Yale Law Journal Vol. 114, p. 203, 2004) on SSRN. Here is the abstract:
    Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This Article focuses on the ways in which federalism concerns (together with related institutional concerns) shape takings jurisprudence.

Monday, June 13, 2005
A Comment on Tamanaha Over at Law and Society Blog, there is a nice post that comments on Brian Tamanaha's essay The Perils of Pervasive Legal Instrumentalism (follow the link to download this highly recommended essay). Here is a taste from the L&S comment:
    In the opening paragraphs of his essay, Tamanaha states that there are two possible views with respect to the pervasiveness of legal instrumentalism. (Id., 2-3). One is that the law did not change its nature, that law has always been instrumental, a fact that has only lately been made explicit. Another is that the law changed its nature, that law at some point in the past the law was non-instrumental and that it has become instrumental. But there is a third possibility, namely that the change from implicit to explicit instrumentalism changed the nature of the law, much in the same manner that the process of secularization changed the nature of religion.
Read the whole thing over at Law & Society Weblog!

Ribstein on Non-Organizational Law Larry E. Ribstein (University of Illinois College of Law) has posted The Important Role of Non-Organization Law (Wake Forest University Business Law Symposium, 2005) on SSRN. Here is the abstract:
    The proliferation of partnership-based business organizations raises questions concerning the law's role in shaping firms. Although many scholars have focused on business organization statutes, at least in the U.S. this law may be trivial in the sense that it simply reflects underlying business concerns. That is because firms easily can choose the applicable governance law, and therefore can avoid bad or unsuitable laws. I show that non-organization law may have a greater effect than organization law on the structure of firms because firms cannot easily avoid this law. Federal and state non-organization laws might significantly reduce the usefulness of business organization standard forms where transaction cost and legal considerations conflict. The efficiency of non-organization laws therefore depends on whether their interference with organization law can be reduced without unduly compromising their policy goals.

Tabb on the Globalization of Consumer Bankruptcy Charles Jordan Tabb (University of Illinois at Urbana-Champaign College) has posted Lessons from the Globalization of Consumer Bankruptcy (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:
    This essay is inspired by two recent books on comparative consumer bankruptcy: (1) Consumer Bankruptcy in Global Perspective (Oxford, U.K. and Portland, Ore.: Hart Publishing, 2003, Johanna Niemi-Kiesiläinen, Iain Ramsay, and William Whitford, editors), and (2) Jacob S. Ziegel, Comparative Consumer Insolvency Regimes - A Canadian Perspective (Oxford, U.K. and Portland, Ore.: Hart Publishing, 2003). After describing the worldwide legislative frenzy in the enactment of consumer bankruptcy laws since 1984, the essay turns to three basic questions. First, what is driving the global legislative surge? Here the paper points to strong evidence that the "democratisation" of consumer credit, stemming from deregulation and improved technology and information, has driven up the amount of consumer credit exponentially, with a correspondingly large increase in default, thus necessitating some sort of legislative response to consumer over-indebtedeness. Second, is there a global trend of convergence, whereby legislative relief for over-indebted consumers is moving towards a common set of norms? The paper suggests that while there is some evidence of convergence, the differences still are substantial, predominate, and are likely to - and should - persist. Finally, the paper asks - should we care about comparative consumer bankruptcy study? That is, is the comparative study of consumer bankruptcy regimes meaningful, useful, or helpful? After expressing a number of important caveats and limitations, several substantial benefits of comparative bankruptcy scholarship are noted.

Arlen on Contractual Alternatives to Malpractice Liability Jennifer Arlen (New York University School of Law) has posted Private Contractual Alternatives to Malpractice Liability (MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM: NEW CENTURY, DIFFERENT ISSUES, Rogan Kersh, William Sage, eds., Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:
    Leading law and economics scholars claim that the best way to reform medical malpractice liability is to permit patients and medical providers to determine the scope of malpractice liability by contract. Contractual liability is superior to any form of tort liability for malpractice, it is argued, because contractual liability benefits those patients not well served by existing tort law, but does not hurt patients who benefit from malpractice liability because these patients can, and will, impose liability by contract. This chapter shows that contractual liability is not necessarily better than tort liability because it can make patients worse off. Proponents of contractual liability asserts that contractual liability cannot make patients worse off because they assume that liability obtained by contract affords patients the same benefits as liability imposed by tort. This is not the case. Medical providers often will be unable to design contracts that enable patients to obtain the same benefits from contracted-for liability as they can from tort liability because tort liability benefits patients through the incentives to invest in care (to benefit all patients) provided by the threat of liability for injuries to other patients, now and in the future. Providers may not be able to replicate this collective, multi-period liability by contract. Patients unable to replicate the benefits of tort liability by contract may rationally reject contractual liability, even when they would have benefited from (and voted for) tort liability for malpractice. If so, contractual liability makes these patients worse off. Patients also are worse off if they are not sufficiently informed to contract in their own best interests. Accordingly, while malpractice liability reform is essential, policymakers cannot assume that it would be better accomplished by private contracting because contractual liability and tort liability are quite different products.

Schroeder on Lacey on Hart with a Psychoanalytic Twist Jeanne L. Schroeder (Cardozo Law School) has posted Beautiful Dreamer: A Book Review of Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (University of Colorado Law Review, Vol. 77, 2006) on SSRN. Here is the abstract:
    This essay reviews Nicola Lacey's recent biography of H.L.A. Hart. The essay claims that Hart's jurisprudence is fraught with unacknowledged psychoanalytic content. Lacey's book shows that Hart's life is equally as fraught as the jurisprudence is.

Sunday, June 12, 2005
Legal Theory Lexicon: Legitimacy
    Introduction Legitimacy. It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times, but what do they mean? Can we give an account of “legitimacy” that makes that concept meaningful and distinctive? Is “legitimacy” one idea or is it several different notions, united by family resemblance rather than an underlying conceptual structure.
    This entry in the Legal Theory Lexicon theory will examine the concept of legitimacy from various angles. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
    Normative and Sociological Legitimacy Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false beliefs. The opposite can be true as well: for example, Bush v. Gore might have been perceived as illegitimate, when, in fact, it actually was a legitimate decision.
    Conceptions of Legitimacy
      Concepts and Conceptions The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.
      So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy.
      Four Conceptions of Legitimacy
        Legitimacy as Democratic Process One very important and influential idea of legitimacy is connected with democratic procedures. Let’s begin with a simple example. Suppose you belong to a small-scale organization of some kind—maybe a law-school faculty. The executive of the organization can take various actions on her own authority, but there are some matters that must be decided by democratic procedures. For example, suppose the Dean of a law school decided that all first-year classes should be taught in small-groups with cooperative-learning techniques and without the traditional case method and Socratic questioning. This might be a marvelous innovation. (I’m not saying it would be.) But if the Dean made the decision without the input of the faculty (or a vote of the faculty), then it is quite likely that there would be vociferous opposition to the new organization of the curriculum on the grounds that the Dean’s decision lacked democratic legitimacy.
        Let’s take a more familiar example. Federal judges are not directly elected. They are appointed for life terms. Although the President (who nominates federal judges) and the Senate (which confirms them) are both elected bodies, the judges who sit at any given time have an indirect and diffuse democratic pedigree. Moreover, there life terms make them relatively insular. So there is a question of legitimacy about the institution of judicial review. Does the fact that Supreme Court Justices are not elected make it illegitimate for them to invalidate actions taken by elected officials? Of course, that’s a big question. For our purposes, the important point is that the question itself is one of democratic legitimacy.
        Legitimacy as Legal Authority Another conception of legitimate seems to focus on legal authority. For example, when President Truman ordered the seizure of the steel mills during the Korean War, there was not question but that he had been elected in 1948. But despite the fact that Truman was elected democratically, there was still a question about the legitimacy of his action. Even if his action was democratic, it may not have been legal. When an official acts outside her sphere of legal authority, we sometimes say that here decision was “illegitimate.” When we use “legitimacy” in this way, we seem to be relying on the idea that legitimacy is connected to legal authority. Actions that are not legally authorized are frequently called “illegitimate” whereas actions that are lawful are sometimes seen as legitimate for that reason.
        Legitimacy as Reliability Yet another theory ties legitimacy to the reliability of the process that produces the decision. To see the point of the “reliability conception” of legitimacy, we need to step back for a moment. There is a difference between the “correctness” or “justice” of a decision, on the one hand, and its “legitimacy” on the other. Indeed, this seems to be a crucial feature of “legitimacy.” We think that an incorrect decision can nonetheless be legitimate, whereas a correct decision can lack legitimacy.
        Reliability theories acknowledge this “gap” between legitimacy and justice, but insist that there is nonetheless a strong connection between the two. The idea is that legitimacy requires a decision making process that meets some threshold requirement of reliability. So tossing a coin would not be a legitimate method for deciding legal disputes. Even if the coin toss came out the right way and the party that would have won in a fair trial did win the coin toss, the decision that resulted from the flip of a coin would be criticized as illegitimate.
        One important example of a reliability theory of legitimacy is found in Randy Barnett’s book, Restoring the Lost Constitution. Barnett argues that the legitimacy of a constitution depends on its reliability in producing just outcomes. A legitimate constitution guarantees a tolerable level of justice. A constitution that does not provide such a guarantee is illegitimate—or so Barnett argues.
        The Liberal Principle of Legitimacy Let’s do one more theory of legitimacy. John Rawls’s has advanced what he called “the liberal principle of legitimacy.” Here is how Rawls states the principle:
          [O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.”
        Unpacking Rawls’s principle could take a whole article, but let me make three observations:
        • The distinctive feature of the principle is that it makes reasons count. That is, the principle bases legitimacy on reasonable endorsement “in the light of principles and ideals acceptable to . . . common human reason.” Readers of past lexicon entries will note that Rawls’s is referring her to his idea of public reason.
        • The principle does not require that citizens actually endorse the constitutional essentials. Rather, the requirement is that citizens “may reasonably be expected to endorse” the constitutional essentials. In other words, the constitutional essentials must be justified by public reasons in such a way that the justification is one that reasonable citizens could be expected to accept.
        • Citizens are asked to endorse the constitutional essentials “as free and equal”. That is, the principle assumes a certain political conception of citizens as free and equal members of society. The reasons are addressed to citizens conceived in this way, and not to citizens as they are, if that includes their rejection of the notion that each and every citizen should be regarded as a free and equal member of society.
        Rawls’s liberal principle of legitimacy point us in the direction of a whole family of ideas about legitimacy. Rawls’s principle is tied to his idea of public reason, but we can imagine other theories of legitimacy that include particular kinds of reasons as legitimating or exclude categories of reasons as illegitimate.
      Competing versus Complementary Conceptions We began our investigation of various conceptions of legitimacy with the working hypothesis that these would be “competing conceptions,” i.e., that only one of these theories of legitimacy could be correct for a given domain of application. Now, let’s take a second look at that assumption.
      Is it really the case that the various conceptions of legitimacy compete with one another? There is another possibility—that some (or all) of these conceptions are complementary. For example, we might say that a given judicial decision has legitimacy in the sense that it was made by legally authorized officials, but that the same decision lacks democratic legitimacy, because it was made by unelected judges contrary to the will of democratically elected legislators. If this way of talking is sensible, then it may be the case that the various conceptions of legitimacy do not compete with one another, but rather exist in some sort of complementary relationship.
    Conclusion We’ve barely scratched the surface, but I hope this entry has given you food for thought about the idea of “legitimacy.” My own sense is that one should be very wary about deploying the idea of legitimacy. Because legitimacy has different senses and is undertheorized, it is very easy to make claims about legitimacy that are ambiguous or theoretically unsound.

Saturday, June 11, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Sovereign Virtue: The Theory and Practice of Equality by Ronald Dworkin. Dworkin is one of the key participants in the "equality of what" debate--one of the key controversies in contemporary political theory. Dworkin's views were developed in a series of articles, in Philosophy and Public Affairs and elsewhere. That material has been reworked as this book, which is essential reading for anyone interested in the theory of distributive justice and egalitarianism. Here's a blurb:
    In this ambitious investigation into the very bedrock of a democratic society, Dworkin, one of our leading legal thinkers (he teaches at NYU), explores the "popular but mysterious political ideal" of equality, looking into its theoretical underpinnings and then showing how a proper conception of equality informs hot-button issues such as campaign finance reform, affirmative action and antisodomy laws. Dworkin (Freedom's Law) advocates a fundamental "equality of resources," arguing that government must provide a form of material equality for everyone. In probing this proposition, he rejects conservative and paternalistic notions of democracy, advocating an "ethical individualism" that makes it government's obligation to treat the life of each person as having great and equal importance. Many of the questions Dworkin raises are of grave concern for America as it faces a new century: What form of democracy is most appropriate to an egalitarian society? How much should a nation like ours spend on its citizens' health? What are the ethical implications of genetic engineering? While in places his abstract discussions of liberty and democracy can be slow going, Dworkin also offers refreshingly pointed commentary on the 1996 Welfare Reform Act ("a plain defeat for social justice"), America's lack of national health-care coverage (a "national disgrace") and other important issues. Two chapters on affirmative action, in which Dworkin argues that sketchy factual evidence about race-based admissions has distorted the debate, are especially insightful. Whatever one's political convictions, it is difficult not to be moved by this book's final, forceful imperative that human lives be successful rather than wasted.
Highly recommended!

Download of the Week The Download of the Week is Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence by Max M. Schanzenbach and Emerson H. Tiller. Here is the abstract:
    We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" - fact-based and law-based determinations made during the sentencing phase - to maximize the judges' sentencing preferences subject to the Guideline's constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the other hand, are routinely used to maximize sentencing preferences regardless of party alignment between the two courts. Our regression analyses suggest that the theory is largely supported. We find that: (1) Democrat appointees generally gave lower prison sentences relative to Republican appointees for crimes of violence, theft and drug-trafficking; and (2) sentencing instruments were selectively used to raise or lower the prison sentence based on the political ideology of the judge, the type of crime, and whether there was political alignment between the district and circuit court.
Download it while its hot!

Friday, June 10, 2005
Sunstein on a New Progressivism Cass R. Sunstein (University of Chicago Law School) has posted A New Progressivism (Stanford Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:
    Based on an address for a conference on Law and Transformation in South Africa, this paper explores problems with two twentieth-century approaches to government: the way of markets and the way of planning. It urges that the New Progressivism simultaneously offers (1) a distinctive conception of government's appropriate means, an outgrowth of the late-twentieth-century critique of economic planning, and (2) a distinctive understanding of government's appropriate ends, an outgrowth of evident failures with market arrangements and largely a product of the mid-twentieth-century critique of laissez faire. It emphasizes the need to replace bans and commands with appropriate incentives, and to attend to social norms and social meanings in leading human behavior in welfare-promoting directions. The ultimate goal is to promote some of the goals associated with America’s New Deal and Europe's social democracy, but without using the crude, inflexible, and often counterproductive methods associated with those approaches. Some attention is devoted to the effects of globalization, the AIDS crisis, crime prevention, and the role of economic growth.

Abramowicz and Tiller on Judicial Citation ot Legislative History Michael Abramowicz and Emerson H. Tiller (The George Washington University Law School and Northwestern University - School of Law) have posted Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis on SSRN. Here is the abstract:
    Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make such choices in a broader context than Judge Levanthal's statement suggests. We posit that an opinion writing judge would cite legislative statements supporting an outcome preferred by the opinion-writing judge, when such statements come from legislators who share the same political-ideological perspective as the opinion-writing judge's colleagues or superiors. This should be so regardless of whether the cited legislator shares the broader perspectives of the opinion-writing judge himself. Put in Leventhal's terms, instead of looking for their own ideological friends, judges look over the heads of the guests for the legislative friends of the judge's colleagues on the bench (or superiors on higher benches). We test this approach with court opinion data gathered from LEXIS and find evidence of hierarchy (high court oversight) and panel (co-members on a court) effects in citation to legislative history, effects that appear related to the political-ideological identification of judges who review or are co-members on a panel of the authoring judge. Specifically, we find that the higher the proportion of Republicans in the reviewing court or sitting on the same three-judge panel, the higher the proportion of legislative history cites that will be to Republican legislators, independent of the political orientation of the authoring judge.

Wu on Decision Architectures Tim Wu (University of Virginia School of Law) has posted Intellectual Property, Innovation, and Decision Architectures (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
    This essay proposes a new way to assess the desirability of intellectual property rights. Traditionally, intellectual property assignment is assessed based on a incentive/monopoly pricing tradeoff. I suggest they should be further assessed by their effects on the decision architectures surrounding the property right - their effects on how firms make product innovation decisions. The reason is that different decisional structures for product development can be are fundamental to the performance of firms, industries, and even the economy as a whole. The organizational economics literature can help with this assessment. It makes an important and useful distinction between hierarchical (centralized) and polyarchical (decentralized) decision architectures. The key point of this paper is that government's decisions with respect to property assignments can steer decision architectures toward a polyarchical or hierarchical architecture, respectively. Each may be optimal in difference scenarios. In industries where technologies are stable and where the industry is flat or in decline, avoiding mistakes is more important, and uncertainty may be more limited, meaning that a hierarchy supported by strong rights may produce a more profitable outcome. Conversely, strong IP rights may undesirable in fast growing-industries where the technologies in flux, because overly centralized decision-making may block the emergence of the most innovative ideas.

Rosenfeld on Stressful Balancing Michel Rosenfeld (Cardozo Law School) has posted Judicial Balancing in Times of Stress: Comparing Diverse Approaches to the War on Terror on SSRN. Here is the abstract:
    This article explores the proper role of judicial balancing in cases arising out of the war on terror. The relevant cases have all relied on judicial balancing in spite of criticism suggesting that in relation to the war on terror the judicial role should be minimized or confined to application of preestablished categorical standards. The article advances the thesis that judicial balancing is appropriate and indispensable in this context, but that it has thus far not been used properly. This is because existing cases fail to distinguish between states of emergency and conditions of stress and seem caught between a criminal law paradigm,a law of war paradigm and a police powers law paradigm. After comparing recent decisions of the U.S. Supreme Court, the U.K. Law Lords and the Israeli Supreme Court, the article suggests that judicial balancing combined with a process-based institutional approach could be optimal, provided it is circumscribed by a conception of the war on terror as creating conditions of stress and a new hybrid legal paradigm, the war on terror law paradigm.

Thursday, June 09, 2005
Barnett on Raich Randy Barnett, the oralist for the Respondents, has a short piece on Gonzales v. Raich on National Review Online. Here's a taste:
    The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit's ruling favoring individuals engaged in the wholly intrastate non-economic activity of growing and consuming cannabis for medical purposes as recommended by a doctor and permitted by state law, or retreat from the landmark Commerce Clause decisions of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the Ninth Circuit wins. But with Justices Kennedy and Scalia on the liberal side of the Court, the Ninth Circuit won big. So did Judge Stephen Reinhardt, who first implemented this strategy in the child-porn case of U.S. v. McCoy.

Schanzenbach and Tiller on PPT & the Judging Under the Sentenching Guidelines Max M. Schanzenbach and Emerson H. Tiller (Northwestern University - School of Law and Northwestern University - School of Law) have posted Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence on SSRN. Here is the abstract:
    We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" - fact-based and law-based determinations made during the sentencing phase - to maximize the judges' sentencing preferences subject to the Guideline's constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the other hand, are routinely used to maximize sentencing preferences regardless of party alignment between the two courts. Our regression analyses suggest that the theory is largely supported. We find that: (1) Democrat appointees generally gave lower prison sentences relative to Republican appointees for crimes of violence, theft and drug-trafficking; and (2) sentencing instruments were selectively used to raise or lower the prison sentence based on the political ideology of the judge, the type of crime, and whether there was political alignment between the district and circuit court.

Stout on Inefficient Markets Lynn A. Stout (University of California, Los Angeles - School of Law) has posted Inefficient Markets and the New Finance (Journal of Financial Transformation, Forthcoming) on SSRN. Here is the abstract:
    By the early 1980s, the Efficient Capital Market Hypothesis (ECMH) had become one of the most widely-accepted and influential ideas in finance. More recently the idea of market efficiency has fallen into disrepute as a result of market events and growing empirical evidence of inefficiencies. This article, which is extracted from a longer essay, argues that the weaknesses of efficient market theory are and were apparent from inspection of its initial premises, including the presumptions of homogeneous investor expectations, effective arbitrage, and investor rationality. By the same token, a wide range of phenomena inconsistent with the ECMH can be explained using market models that modify these three assumptions. To illustrate, this article explores three important strands of today's finance literature: (1) work on asset pricing when investors have heterogeneous expectations; (2) scholarship on how and why arbitrage may move public information into prices more slowly and incompletely than earlier writings suggested; and (3) the exploding literature in "behavioral finance." Taken together, these literatures provide the framework for building a new and more powerful working model of securities markets.

Keenan on Crime in the Age of Globalization Patrick Keenan (University of Illinois College of Law) has posted The New Deterrence: Crime and Policy in the Age of Globalization (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
    Crime has historically been a local phenomenon. Most murder victims know their killers; most victims of child abuse know their abusers; victims of theft often need not look beyond their own neighborhoods for the thieves. Crime is regulated locally. In the United States, it is the states, not the federal government, that prosecute the vast majority of criminal cases. Globalization is changing this in ways that have yet to be fully explored. Although crime as an event will always have a substantial local component because it is typically responded to by officials and victims in the place it occurs, it is becoming much more of a transnational phenomenon. It is increasingly common for activity that is regulated in one country because it is dangerous or unwanted to become more common in other countries where the activity is equally (or almost equally) unwanted but much less effectively regulated. What happens when activity that is unwanted in two places is more effectively regulated in one place than in the other? Does the unwanted activity migrate from the first state to the second? How much of it migrates, and what factors influence the amount of displacement? How should we conceive of regulation in these circumstances - as a local response to a local problem or as part of a broader effort to reduce the overall incidence of the unwanted activity? These questions are fundamental to determining what globalization will mean in the new century, but so far have not been fully explored. The existing scholarship on deterrence will be of limited use in a globalized context. This article is the first attempt to fill the gap by developing a richer approach to deterrence for a globalized world. I draw insights from both law-and-economics and criminology literature to enrich our understanding of deterrence. To ground my theoretical discussion in a real-world problem, throughout the article I use sex tourism as an example of the kind of unwanted activity that now crosses borders and has complicated our understanding of deterrence. I focus on two issues central to deterrence in a globalized world that have not gotten sufficient scholarly attention: the phenomenon of displacement and the role of status. I add three important considerations. First, I argue that informal sanctions, as opposed to formal, legal sanctions, are increasingly important and must be part of any effective deterrence policy. Second, I argue that substitution - when activity migrates from one location to another because of changes in enforcement policy in the first place - is a complicated process that can be manipulated to enhance deterrence. Finally, I argue that when unwanted behavior involves people from different countries, we must consider the role of status in deterrence. Differences in status can distort the social processes of judgment and disapproval that allow communities to control unwanted behavior without recourse to law. These are vitally important issues. Because globalized crime is so widely dispersed, it will be almost impossible for the local communities affected to get together and develop a coordinated plan. If we are to prevent law enforcement successes in the West from turning into social disasters for those in the developing world, we must bring theory into step with the ways that globalization has changed the reality of crime.

Book Announcement: Sullivan on Religious Freedom
    The Impossibility of Religious Freedom by Winnifred Fallers Sullivan To read the entire book description or the introduction, please visit: The Constitution may guarantee it. But religious freedom in America is, in fact, impossible. So argues this timely and iconoclastic work by law and religion scholar Winnifred Sullivan. Sullivan uses as the backdrop for the book the trial of Warner vs. Boca Raton, a recent case concerning the laws that protect the free exercise of religion in America. Cloth | $29.95 / £18.95 | ISBN: 0-691-11801-9

Griffith on Mandatory Disclosure of D&O Policies Sean J. Griffith (University of Connecticut - School of Law and University of Pennsylvania - School of Law) has posted Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies on SSRN. Here is the abstract:
    This Essay explores the connection between corporate governance and D&O insurance. It argues that D&O insurers act as gatekeepers and guarantors of corporate governance, screening and pricing corporate governance risks to maintain the profitability of their risk pools. As a result, D&O insurance premiums provide the insurer's assessment of a firm's governance quality. Most basically, firms with good corporate governance pay relatively low D&O premiums while firms with worse corporate governance pay more. This simple relationship could signal important information to investors and other capital market participants. Unfortunately, the signal is not being sent. Corporations lack the incentive to produce this disclosure themselves, and U.S. securities regulators do not require registrants to provide this information. This Essay therefore advocates a change to U.S. securities regulation, making disclosure of D&O policy details - specifically premiums, limits and retentions under each type of coverage, as well as the identity of the insurer - mandatory.

Wednesday, June 08, 2005
Rosenberg & Shavell on Litigation Costs David Rosenberg and Steven Shavell (Harvard Law School and Harvard Law School) have posted A Simple Proposal to Halve Litigation Costs on SSRN. Here is the abstract:
    This article discusses a simple proposal that could reduce litigation costs in the country by about half, yet without compromising the functioning of the liability system in a significant way. Under the proposal (1) only half the cases brought before a court would be randomly chosen for litigation, and (2) damages would be doubled in cases accepted for litigation. The first element of the proposal saves litigation costs and the second preserves deterrence of undesirable behavior. The effect of the proposal on settlement is emphasized, one important implication of which is that settlement is likely to occur before cases are filed (and possibly randomly eliminated), in which event plaintiffs will definitely be compensated.
I don't know quite what to make of this proposal--which is almost a reductio of the consequentialist approach to procedure. Here are a few observations:
  • The proposal would undoubtedly result in many cases being dismissed by lottery. Of course, most cases would settle at their expected value, but not all--for a variety of reasons. This lottery would be intolerable as a matter of procedural justice, and would surely put the proposal outside the "feasible choice set" given political realities.
  • The 50% chance of being selected for random dismissal would be especially burdensome to risk-averse plaintiffs. Being risk-averse may be rational where the settlement of one's claims is necessary to provide for medical expenses from a serious injury. If defendants know about this risk aversion, they should be able to hold out for settlements at less than the expected value of the claims. The author's recognize this point: "Risk aversion, however, gives parties a stronger motive to settle before filing under the proposal than they now have." (p. 8)
  • There is a relationship between the two points made above. If plaintiffs EVER hold out for a better settlement, then the lottery will leave some plaintiffs uncompensated. If plaintiff's NEVER hold out, the natural inference is that risk aversion is so great that plaintiff's are unable to hold out even if the offer is below the expected value of the claim.
  • The authors observe that first-party insurance may be available to cover the risks. Of course, some people lack first-party insurance because of wealth effects.
  • The authors offer a number of replies to the fairness argument, including the following:
      [S]ociety already employs policies that display the unfair features of our proposal that are under discussion, and it does so in order to secure advantages similar to those of our proposal. In particular, society often decides to limit the ability of individuals to use the legal system for reasons of cost or efficiency. For example, many states have passed no-fault automobile statues, preventing individuals from bringing suit for harm suffered in automobile accidents.
    Ths is a spectacularly bad argument. No-fault insurance is designed to insure uniform compensation--not a lottery that compensates some and not others. If there were utilitarian advantages to a no-fault system that compensated only half of accident victimes, the unfairness of the system would surely be a complete bar to its adoption. More fundamentally, the presence of SOME unfairness in the system is not a moral justification for MORE unfairness! (Imagine an execution lottery justified by the fact that we already executive some innoncent defendants!)
I could go on, but let me end by recommending this fascinating paper!

Baird on INS v. AP Douglas G. Baird (University of Chicago Law School) has posted Property, Natural Monopoly, and the Uneasy Legacy of INS v. AP on SSRN. Here is the abstract:
    International News Service v. Associated Press held that a wire service had the right to prevent rivals from copying its bulletin. It established the doctrine of misappropriation and justified it on the ground that someone that invests in gathering and disseminating information is entitiled to the fruits of its labor. The Supreme Court, however, missed the strong anti-competitive undercurrents in the case. INS and AP were not conventional rivals. The most important AP member (and the person who stood to gain the most from AP's anticompetitive activities) - also owned INS. Far from being about first principles, the case illustrates how common law reasoning quickly loses its moorings in the absense of a bona fide dispute. The long-recognized failing of the case - that it sets out a principle wiht no obvious boundaries - was deeply embedded in the facts and illusrates, even in this iconic environment, that the domains of intellectual property and antitrust cannot be easily separated.

Bradford on Secondary Use in Copyright Laura R. Bradford (New York University - School of Law) has posted Parody and Perception: An Alternative Approach to Secondary Use in Copyright (Boston College Law Review, Summer 2005) on SSRN. Here is the abstract:
    This Article draws on cognitive research to examine a conflict within copyright doctrine. Scholars typically analyze unauthorized secondary use of expressive works using an economic or a free speech analysis. The former views copyrighted works primarily as products, the latter primarily as speech. Both paradigms focus on the person speaking or distributing informational works. However, copyrighted works contain unique communicative properties that implicate both expression and understanding of that expression. This Article argues that because copyright is a right to control certain types of information, how we process information is relevant in determining copyright's scope. By incorporating lessons from cognitive research on memory, attention, and preference, courts can formulate rules that provide a better balance between the rights of owners and the need for open engagement with expressive works. More generally, a cognitive approach to secondary use refocuses the debate from a question of what owners deserve to look at what audiences require in choosing and consuming such works. This focus is in keeping with copyright's goal of promoting innovation to further the public good.

Two by Levy Jacob Levy (Chicago, Political Science) has posted two new papers on SSRN:
    Beyond Publius: Montesquieu, Liberal Republicanism, and the Small-Republic Thesis (forthcoming, History of Political Thought):
      The thesis that republicanism was only suited for small states was given its decisive eighteenth-century formulation by Montesquieu, who emphasized not only republics’ need for homogeneity and virtue but also the difficulty of constraining military and executive power in large republics. Hume and Publius famously replaced small republics’ virtue and homogeneity with large republics’ plurality of contending factions. Even those who shared this turn to modern liberty, commerce, and the accompanying heterogeneity of interests, however, did not all agree with or know about Publius’ institutional responses to the problems of executive and military power. Throughout the late eighteenth and early nineteenth centuries, and on both sides of the Atlantic, it remained a live question whether large states could be stable moderate republics, with responses ranging from embraces of Montesquieuian limited monarchy, to denials that there was any real large-republic problem at all, with a variety of institutional solutions in between for those who thought there was a real but soluble large-republic problem.
    Loyalties in Federalism and Liberal Thought:
      When federalism has not been neglected or dismissed altogether in contemporary political theory, it has typically been justified in terms of exit or voice, with exit justifications resting on Tiebout sorting, competitive federalism, or both. None of these justifications are good fits with the institutional shape of really-existing federalism, in which provinces or states are too big, too rigidly entrenched, too exclusive of more-local levels of government, and too often ethnoculturally demarcated. For a justification of federalism that matches the real institution we are better served looking at a kind of argument that was once common in liberal and constitutional thought, one advocating a separation of loyalties between the central state and provinces (or other units such as ethnocultural nations) in order to keep the central state in check. The Federalist Papers, Tocqueville, Acton, and Constant all relied on accounts like this. This defense of federalism is an instance of a more general category of argument, bulwark liberalism, that relies on intermediate institutions that can correct for tendencies toward the centralization of power.
    I'm a big fan of Levy's work! Download it while its hot!

Competition Announcement: European Philosophy
    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.

Tuesday, June 07, 2005
Welcome to the Blogosphere . . . to four new members of the LawProf Blog Network:
    China Law Prof Blog, by Donald C. Clarke (George Washington) Clinical Law Prof Blog, by Pamela R. Metzger (Tulane) Corporate Compliance Prof Blog, by Paul R. McGreal (South Texas) Environmental Law Prof Blog, by Susan L. Smith (Willamette)

Corrado on Responsibility & Control Michael L. Corrado (University of North Carolina at Chapel Hill - School of Law) has posted Responsibility and Control (Hofstra Law Review, Forthcoming) on SSRN. Here is the abstract:
    In the sex predator cases, Hendricks and Crane, the Supreme Court resurrected a standard that has been unpopular with politicians and theoreticians and has been on its way out of the law for the past thirty or forty years. The Supreme Court ruled, over strong objection, that the sex predator could be indefinitely detained only if he could not control his unlawful behavior. That idea - that someone might not be able to control his behavior - had been ridiculed as meaningless and was all but abandoned when Hendricks was decided. In this paper I argue that control or volitional disabilities do make sense and should be recognized. I show that the arguments against such disabilities, although they appear to have carried the day, are not convincing and certainly should not be the basis for policy decisions. I provide a coherent definition of control disabilities, a definition I believe can help us begin a rational discussion aimed at circumscribing the use of indefinite detention of, among others, unlawful combatants. An understanding of the notion of control is a critical part of understanding responsibility, which in turn is central to our understanding of the limits of the state's ability to detain. Recent work has eviscerated that notion and has, consequently, allowed conclusions that do not accord with our more considered opinion of what the state ought to be doing. Stephen Morse argues we are all in control of our intentional behavior, and that includes sex predators (with the exception of those entitled to the insanity defense). Sex predators should therefore be punished but not detained; those who are insane, on the other hand, should be detained but not punished. Christopher Slobogin, though he agrees with Morse that the class of persons who cannot control their behavior is empty, argues that indefinite detention is appropriate for some sex offenders who are not insane. Indefinite detention, in Slobogin's view, is appropriate for anyone whose criminal activity is not deterrable, including the insane on one hand and the terrorist on the other. The persistent sex offender who either cannot understand the consequences of his actions or who simply will not control his behavior falls into that camp. Morse's approach would support the imprisonment of addicts and those suffering from compulsive disorders. Slobogin's approach would support the indefinite detention of recidivists, on grounds of future dangerousness. Neither approach allows us to draw the distinctions that we will need to draw if we are to rationally and conservatively limit the state's power to indefinitely detain. My hope is that the Supreme Court's resurrection of the notion of volitional disability coupled with the definition of that disability proposed in this paper will enable that discussion to begin.

Event Announcement: Law & Political Philosophy Discussion Group The first meeting of the Law and Political Philosophy discussion group of the University of Wales, Aberystwyth, UK, will be held on Wednesday, 15th of June, from 1-2pm at the Law Seminar room of the University. The presentation is going to be by Roland Pierik (Tilburg University Law School, The Netherlands) and the title is 'Slavery Reparations and Distributive Justice'. (The url for our blog is

Conference Announcement: Privacy Law at Villanova
    PRIVACY LAW IN THE NEW MILLENNIUM: A TRIBUTE TO RICHARD C. TURKINGTON Saturday, October 29, 2005, Villanova University School of Law Panelists and contributors (by area of specialty): Constitutional Privacy: Anita Allen-Castellitto, University of Pennsylvania David Meyer, University of Illinois Mark Rahdert, Temple University Information Privacy: Gaia Bernstein, Seton Hall University Neil Richards, Washington University Peter Swire, Ohio State University Health and Medical Privacy: Ellen Wright Clayton, Vanderbilt University Barry Furrow, Widener University Radhika Rao, University of California-Hastings For more information, please contact Lori Freda-McFadden at (610) 519-7053. We hope you will be able to attend.

Perry on a Right to Religious Freedom Michael J. Perry (Emory) has posted A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture on SSRN. Here is the abstract:
    This Essay is the basis of a presentation I made to a symposium on religious freedom at the Roger Williams University School of Law in October 2004. I inquire, in the Essay, whether we who affirm (what I call) the morality of human rights should want the international law of human rights to protect a right to religious freedom. Along the way, I offer some reflections on the relevance of cultural relativity to the project of universalizing human-rights-claims.

Conference Announcement: MIND2005 at Edinburgh
    MIND2005 Graduate Conference in Philosophy of Mind June 30th - July 1st, 2005 Edinburgh University, Informatics Conference Room, 2 Buccleuch Place Invited Speakers: Professor Hans-Johan Glock (Reading University) - Concepts: Representation vs Ability Professor Christopher Peacocke (Columbia University) - Understanding: Justification, Realism, and the Past Professor Timothy Williamson (Oxford University) - Externalism and the Explanation of Action Graduate speakers: Asunciòn Alvarez (King's College London) - Two Problems with Peacocke's Theory of Concepts Gloria Ayob (Warwick University) - Can Conscious Attention Restore Uncritical Realism? Treasa Campbell (Limerick University) - Human Philosophy: Hume on Natural Instincts and Belief Formation Richard Hamilton (Trinity College Dublin) - Heidegger and the Possibility of AI and Modelling the Mind Nick Jones (Nottingham University) - Change Blindness and Counterfactual Dependence Elif Kirmizi, Nilufer Yesilot, and Sinem Elkatip (CUNY) - Consciousness and Identity Anders Nes (Oslo University) - Perception and Phenomenal Modes of Presentation Charlie Pelling (Reading University) - Conceptualism, Demonstrative Colour Concepts, and the Problem of Illusory Experience Francisco Pereira (King's College London) - Metaphysical Disjunctivism and the Intentional Theory of Perception Markus Schlosser (St-Andrews University) - On the Causal Exclusion Argument - In Defence of Non-reductive Physicalism Leo Townsend (Cape Town University) - Sticks and Stones in the Debate over Mental Anomalism Dave Ward (Edinburgh University) - Deflationism about qualia The Programme of the conference will be announced soon (check the website for updates). Registration is open until June 23rd: follow the link below or just email indicating your participation. A few attendance bursaries will be available on a first-come, first-served basis. When registering, please indicate if you wish to apply for a bursary and if you wish to attend the conference dinner. For all other information (including accomodation), please check our website. With the kind support of: The Mind Association Scottish Postgraduate Philosophy Association Philosophy at Edinburgh University The Analysis Trust Scots Philosophical Club Ezio Di Nucci & Conor McHugh Mind2005: Graduate Conference in Philosophy of Mind

Monday, June 06, 2005
Gonzales v. Raich, Part I: A Guide to the Posts This post will be updated throughout the day. Last update was made at 4:32 p.m. PDST. Given the length of the posts, I have divided my coverage into four Parts as follows:

Gonzales v. Raich, Part II: An Analysis of the Decision
    Introduction Today, June 6, 2005, the United States Supreme Court decided Gonzales v. Raich, the most significant commerce-clause case since United States v. Lopez and United States v. Morrison. In Raich, the Supreme Court reversed a decision by the United States Court of Appeal for the Ninth Circuit. The Ninth Circuit’s decision essentially held that the Controlled Substances Act could not constitutionally be applied to the noncommercial possession or use of marijuana for medical purposes in California. The gist of the Ninth Circuit’s reasoning was that the application of the Act to that category of conduct would exceed Congress’s power under the Commerce Clause and the Necessary and Proper Clause of the United States Constitution. Raich was decided by a 6-3 majority. The Opinion of the Court was written by Justice Stevens. Justice Scalia wrote a separate concurrence. There were two dissenting opinions, one by Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas and the other by Justice Thomas, writing alone.
    The ultimate meaning of Supreme Court opinions is rarely apparent on the day they are decided. For one thing, it takes time to digest the opinions in complex cases. A sentence or two in a footnote can loom large once their significance is appreciated. A concurring opinion or dissent may become more significant in retrospect. Moreover, the meaning of one case frequently depends on the way that it is followed or distinguished, by lower courts and by the Supreme Court itself. So early assessments of Supreme Court decisions should always be prefaced by a note of caution. The opinions in this post have been formed after a few hours of study and thought, but they may not represent my own opinion in a few days—much less represent the settled judgment of history!
    Background Today’s decision in Raich can be seen as the confluence of two powerful forces. On the one hand, Raich is one stage in an ongoing social movement for the legalization (or decriminalization) of the medical use of marijuana. On the other hand, Raich represents a moment in the evolution of constitutionalism federalism, and may even mark the end of the “New Federalism” as a significant movement in the jurisprudence of the United States Supreme Court. Both of these forces deserve a few more words, before we get to Raich itself.
    That there is a significant movement for the legalization of medical use of marijuana is unquestionable. That movement has resulted in the passage of initiatives and other legislation in several states, including California. These statutes typically legalize the possession and use of marijuana for medical purposes pursuant to a doctor’s written authorization. The medical marijuana movement is connected to a broader movement for the decriminalization of marijuana for all purposes, but many supporters of the legalization of medical marijuana do not support general decriminalization. The medical marijuana movement has been successful in several states, but it has not been able to persuade either the FDA (Food and Drug Administration) or Congress to legalize medical marijuana. Because federal law trumps state law under the Supremacy Clause of the Constitution, the movement turned to litigation. To be successful, the movement would need to convince the federal courts of one of three propositions: (1) that the Controlled Substances Act did not prohibit medical use of marijuana, (2) that there is a constitutional right to use marijuana for medical purposes, or (3) that Congress lacked authority to regulate home-grown medical marijuana. All of these arguments have been tried in various courts, but the movements greatest litigation success came in Raich when the Ninth Circuit ruled against the government on the third theory—that Congress lacked power to prohibit the use and possession of noncommercial medical cannabis.
    There is a second force at work in Raich--the so-called “New Federalism” as a doctrine in constitutional law. To understand the “New Federalism,” we need to take a step back. Beginning in 1937, the United States Supreme Court began to issue a series of opinions that substantially broadened Congress’s power under the interstate commerce clause and the necessary and proper clause of the Constitution. In a series of decisions over about three decades, the New Deal Court and later the Warren Court gradually erased most of the significant restrictions on Congress’s legislative power. By the early 1980s, the generally accepted view was that Congress had “plenary” or unlimited power to regulate. For better or worse, the conventional wisdom was that Congress’s commerce clause powers were virtually unlimited. In 1995, however, the Court struck down the Gun Free School Zones Act in United States v. Lopez. Then in 2000, the Court decided United States v. Morrison, striking down the Violence Against Women Act. Together, Lopez and Morrison suggested that the commerce clause power was not plenary, and that the Supreme Court might be willing to reinvigorate the original constitutional scheme of a federal government with limited enumerated powers.
    One way of viewing the decision in Raich is that it represents a defeat for both the medical marijuana movement and for the Supreme Court’s New Federalism jurisprudence. In sense, these two different forces were brought together in Raich by coincidence rather than by any deep connection. The medical marijuana movement would have been happy if Congress had forced the states to accept legalized medical marijuana. Advocates of the New Federalism might well have preferred if the next big Supreme Court case had involved something other than drugs. Nonetheless, these two forces did come together in Raich.
    What Is the Significance of Raich The primary aim of this post is to assess the constitutional significance of the United States Supreme Court’s decision in Raich. Does Raich signal the end of the New Federalism? After Raich will Lopez and Morrison have continued vitality as significant limits on the power of Congress?
    To answer these questions, we need to begin by laying out the constitutional doctrine as it existed before Raich was decided. Then, we will need to take a close look at the opinions in Raich and assess their significance in light of the preexisting doctrinal structure. So let’s get to it!
    The Structure of Commerce Clause Doctrine Prior to Raich Lopez and Morrison established a general framework for the analysis of commerce-clause issues. The precise contours of that framework were contested. Opponents of the New Federalism had narrow readings of Lopez and Morrison. Friends of the New Federalism read those cases more broadly. What I am about to offer is my take on the doctrinal framework. Unsurprisingly, I think I’m right. In fact, I am fairly sure that the analysis that I offer here provides the best understanding of the New Federalism prior to Raich, but I am just as certain that some very smart constitutional scholars would disagree.
    We need to begin with three categories—(1) channels, (2) instrumentalities, and (3) effects. Ultimately, I don’t think these categories mean much. They come from a case called Perez v. United States, but if you trace them back through the case law, you will discover that the meaning of the three categories changed significantly over time. But were are stuck with them. What do they mean? Congress is said to have power over three categories of activity involving commerce: (1) regulation of the channels of commerce, (2) regulation of the instrumentalities of commerce, and (3) regulation of activities with a substantial effect on commerce. Forget categories one and two. We will be concerned with category three.
    Let’s step back for a moment. Congress can regulate interstate commerce itself. Of course, that’s what the commerce clause itself authorizes. But what if congress wants to regulate something that is noncommercial or wholly intrastate? In Wickard v. Filburn, the Supreme Court upheld a statute that regulated wheat that was consumed on a farm and never entered the interstate market; indeed, the wheat was never sold at all. The Court concluded that the “cumulative effect” on interstate commerce of regulating wheat that was used on all the farms in the country could be substantial, and therefore, that the regulation was a valid exercise of the commerce clause power.
    So in Lopez and Morrison, the Supreme Court had to limit the reach of Wickard v. Filburn. After all, couldn’t the regulation of gun possession near schools or violence against women have a significant cumulative effect on interstate commerce? Justice Rehnquist’s opinions in Lopez and Morrison suggested that the Wickard cumulative effects test had a limited domain of application—that Congress could only regulate intrastate economic activity based on a significant effect on interstate commerce.
    Here is my summary of the doctrinal structure that emergence in the new federalism cases:
      Step One: Is the regulation at issue a regulation of the channels or instrumentalities or channels of interstate commerce? If yes, then the regulation is valid under the commerce clause. If no, go to step two.
      Step Two: Does the regulation target economic activity with a significant effect on interstate commerce? If yes, then the regulation is valid under the necessary and proper clause. If no, go to step three.
      Step Three: Is the regulation of noneconomic intrastate activity essential to a larger regulatory scheme? If yes, then the regulation is valid under the necessary and proper clause of the Constitution. If no, then the regulation is invalid.
    One more thing. “Step Three” wasn’t actually at issue in either Lopez or Morrison, but it was suggested in dicta in Lopez
    The Application of the Structure to Raich So how does this framework apply to Raich? There are many subtleties and complications. So I want to proceed as follows. Initially, we will do a very simple analysis under the three step test outline above, then we add the complexities back into our understanding of the issues, one at a time. Here goes:
      Step One: Is the regulation at issue a regulation of the channels or instrumentalities or channels of interstate commerce? No, the class of conduct at issue in Raich is intrastate noncommercial medical marijuana use and possession. Interstate commerce is not involved.
      Step Two: Does the regulation target economic activity with a significant effect on interstate commerce? No, the activity in Raich is not economic, because no sale or barter was involved.
      Step Three: Is the regulation of noneconomic intrastate activity essential to a larger regulatory scheme? Maybe, the record in Raich contains virtually nothing that speaks to this question, and even the briefs have very little to say about this issue.
    Given this framework, we would expect that the action in Raich would be at Step Three, and that the allocation of the burdens of persuasion and production would determine the outcome of the case. To some extent that did happen, but a close reading of Justice Stevens’s opinion suggests that it has introduced a revised framework for the analysis of these questions, while allocating the burdens of proof in a way that it makes it very difficult for future commerce clause challenges to succeed.
    What Is “Economic” Activity? Under Lopez and Morrison, the Wickard v. Filburn cumulative-effects test was applied only if the activity that Congress regulated was “economic” in nature. But those cases did not provide a clear definition of what “economic” meant. Justice Stevens did supply such a definition today in Raich Here is what he said:
      Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster?s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.36 Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.
    Stevens definition of “economic” represents a significant development. Before Raich, the best understanding of “economic” activity centered on the idea of exchange. “Economic” activity included the sale or barter of goods or services. That definition would not apply to the activity in Raich, because the marijuana was home grown or a gift—no sale or barter was involved. But under Stevens definition, the activity in Raich was economic, because it involved a “commodity.”
    Digression: Stevens definition is actually quite bizarre. First, it includes only commodities. It would suggest that the category of “economic” activity excludes services entirely—even if the service is sold or bartered. That can’t be right. Second, it includes anything that can be categorized as a commodity—even if the commodity in question has no connection to sale or barter. If a child plucks daisy’s from a home garden and weaves them into a garland, that is “economic” activity according to Justice Stevens. End of Digression.
    In other words, Raich provides a new definition of “economic” that significantly expands the sphere of activity to which Wickard v. Filburn applies—as compared to the Lopez and Morrison framework.
    Defining the Class of Activity So far, we have been assuming that the relevant class of activity is noncommercial medical marijuana use and possession. That is the class that was identified by the Respondents and by the Ninth Circuit. But is that the relevant class? The government argued that the relevant class of activity is defined by the statute itself. In other words, the question is not whether noncommercial medical marijuana can be regulated by Congress, but instead is whether all cannabis use can be regulated by Congress. In other words, the government took the position that the validity of the statute depends entirely on whether the statute withstands a “facial” challenge. In fact, the government took the position that there is no such thing as an “as applied” challenge to a statute under the commerce clause.
    The Opinion of the Court, authored by Justice Stevens, is less than perfectly clear on this issue. Certainly, Justice Stevens did not adopt the government’s opinion. In fact, there is no reference to the idea of a “facial” challenge in Stevens opinion, and his analysis seems to assume that “as applied” challenges are appropriate. Here is the most extensive discussion of the class definition issue in Stevens’s opinion:
      The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities that it held to be beyond the reach of federal power, defined as “the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law.” 352 F. 3d, at 1229. The court characterized this class as "different in kind from drug trafficking." Id., at 1228. The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress? contrary policy judgment, i.e., its decision to include this narrower ?class of activities? within the larger regulatory scheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in determining that none of the characteristics making up the purported class, whether viewed individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined by the Court of Appeals was an essential part of the larger regulatory scheme.
    As I read this passage, Stevens has accepted the idea that the relevant class was the narrow one defined by the Court of Appeals, but the statute may be validly applied to that class if Congress could rationally believe that regulation of the narrow class was “an essential part of the larger regulatory scheme.” In other words, at this stage of the opinion, Justice Stevens has moved to Step Three of the Lopez/Morrison framework. You might ask, “What about Justice Stevens broad definition of economic” activity?” Because if Raich involved economic activity, then we ought to be able to validate the regulation using the cumulative effects test identified in Step Two. We would never need to discuss Step Three. I think that should have been right. Justice Stevens does not seem to have appreciated the importance of his discussion of the meaning of “economic.” It came in a section that aimed at distinguishing Morrison, as if Morrison had stood for the proposition that Congress cannot regulate noneconomic activity under any circumstances. If I am right, then Justice Stevens opinion is simply confused on this point.
    Putting this confusion to the side, let me reiterate the main point: for Justice Stevens, Raich is all about the question whether the regulation of noncommercial medical use and possession of intrastate marijuana is “essential” for a larger regulatory scheme. But that leads us to the next issue: what standards of review (burdens of production and persuasion) govern this issue?
    The Burdens of Production and Persuasion and Standards of Review Let’s forget about the litigation for a moment. Does Congress really need to regulate noncommercial use and possession of intrastate medical cannabis in order to achieve the purposes of the Controlled Substances Act? I hope you will forgive me for being blunt, but I think it is pretty clear that the answer to this question is obviously “No!” In fact, if Congress were to amend the CSA to create a state option to legalize medical cannabis, it is unlikely that there would be any significant effect on the market for illegal cannabis. Sure, there would be some leakage from the legal medical market to the illegal recreational market, but given the overall size of the recreational market, that leakage would be insignificant. This is especially true in light of the fact that the Raich decision is unlikely to have any significant effect in discouraging the medical use of marijuana, much less the recreational use of pot.
    But the legal question has very little to do with the real world. In the legal context, the crucial questions are: who has the burden of showing that the regulation of medical noncommercial intrastate marijuana is essential to the regulation of the interstate recreational market. And how strong must the evidence be?
    Again, Justice Stevens’s opinion is not perfectly clear, but the general thrust of his opinion is that the government can meet its burden by a showing that Congress could rationally believe that the regulations were essential. The word “rational” has a special meaning here. This is the “rational” of the “rational basis test” that is familiar to every student of American constitutional law. The general idea is that Congress does not need to be right. Congress does not even need to make credible findings of fact. Nor does the government need to make a credible showing in an evidentiary hearing before a judge. The rational basis test can be passed if the lawyers for the government can make an argument about what the facts might be, and Congress would not be “irrational” (or crazy) to have believed that argument.
    Here are some excerpts from Justice Stevens’s opinion that use the rational basis test:
    • In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home consumed marijuana outside federal control would similarly affect price and market conditions.

    • In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

    • Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels,33 we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.
    The conventional wisdom is that the government will almost never fail to show that a given regulation fails the rational-basis test. There are some exceptions—cases in which the Court appears to be applying a so-called “rational basis plus” test, but Raich does not seem to be going in that direction.
    Implications for the New Federalism What are the implications of all of this for the New Federalism? Justice O’Connor suggests in her dissenting opinion that Raich is the death knell for the Lopez and Morrison as significant constraints on Congress’s power. Here is how she put it:
      Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was “not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,” 514 U. S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21?22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation" thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones.
    Is Justice O’Connor right? Justice Stevens did not answer her charge directly, and that is quite revealing! Justice Scalia did respond in his concurrence:
      Today’s principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to “little more than a drafting guide.” Post, at 5 (opinion of O’CONNOR, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.
    But this passage begs the crucial question—which concerns the standard of review. If the government were required to make a real showing that the regulation of wholly interstate noneconomic activity was “essential,” then Scalia would be right. Scalia would surely be right if the government had to carry this issue by a “preponderance of the evidence.” But under the majority approach, all the government needs to do is suggest a “rational basis.” It is very revealing that the word “rational” appears zero times in Justice Scalia’s opinion. Let me repeat that. It is very revealing that the word “rational” appears zero times in Justice Scalia’s opinion. Do a search yourself if you doubt me!
    In other words, it appears that Justice O’Connor is right. After Raich, it seems unlikely that any lower court will use Lopez and Morrison as the basis for invalidating any statute that Congress wants to survive. Of course, there may be some older statutes that suffer from the same defect as did the Gun Free School Zones Act and the Violence Against Women Act. That is, in statutes that predate Raich, Congress may have drafted badly by isolating a wholly intrastate, noneconomic class of activity for regulation.
    But even these older statutes may be saved by Justice Stevens opinion. Why? Because it surely does not matter whether a given provision is passed by Congress in a separate bill—as opposed to being passed as part of a larger statutory scheme. That would be a purely formal distinction, and a pretty silly one at that. Surely Congress can add to an existing regulatory scheme through incremental legislation that addresses a particular intrastate noneconomic activity. So long as the government can argue that Congress could rationally have concluded that the new increment is “essential,” then the statute should survive after Raich.
    But wait a minute, you exclaim, wouldn’t that same reasoning have saved the statutes in Lopez and Morrison? Maybe! It is certainly possible that Lopez and Morrison will now be confined to their facts. It is also possible that these decisions will continue to live a curious sort of “half life,” continuing to be invoked when Congress fails legislate cleverly.
    Conclusion This post is already far too long, and I’ve only gotten started. I may have more to say later, but for now, I will close by saying this: It looks like Raich is a landmark decision that signals the end of the New Federalism as a significant limit on the powers of Congress.

Gonzales v. Raich, Part III: Excerpts from the Opinions
    Gonzales v. Raich, the medical marijuana case, was decided today. The decision was 6-3 to reverse the Ninth Circuit's opinion, which held that the Controlled Substances Act of 1970 exceeded Congress's power when applied to noncommercial marijuana consumed for medical use pursuant to a doctor's recommendation. Justice Stevens authored the majority opinion, and Justice O'Connor authored a dissenting opinion joined by the Chief Justice and Justice Thomas, and Justice Thomas also wrote a dissent. Justice Scalia wrote a concurrence in the judgment.
    This is one of four posts that deal with Raich. This post links to the opinions and provides extensive excerpts from them.
    Links to the Opinions All of these are links to PDF files. All four opinions in one file are 79 pages long. Here are the links, both to the individual opinions, and to a single file that contains all four: Excerpts from the Opinions
      The Opinion of the Court (Justice Stevens) Stevens's opinion for the Court gets to "the beef" with this passage:
        In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress? assertion of authority thereunder, has evolved over time.24 The Commerce Clause emerged as the Framers? response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation.25 For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.26 Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress ?ushered in a new era of federal regulation under the commerce power,? beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.27 Cases decided during that ?new era,? which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.
        Our case law firmly establishes Congress? power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. * * * As we stated in Wickard, ?even if appellee?s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.? Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the "total incidence" of a practice poses a threat to a national market, it may regulate the entire class. (emphasis added)
      And here is the crucial discussion of Wickard v. Filburn:
        Our decision in Wickard, 317 U. S. 111, is of particular relevance. In Wickard, we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn?s 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn argued that even though we had sustained Congress? power to regulate the production of goods for commerce, that power did not authorize ?federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm.? Wickard, 317 U. S., at 118. Justice Jackson?s opinion for a unanimous Court rejected this submission:
          The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.? Id., at 127?128.
        Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
        The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed ?to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . ." and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. See nn. 20?21, supra. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would similarly affect price and market conditions. (emphasis added)
      And what is the "rational basis"? Here is Justice Stevens explanation:
        More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress? commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. (emphasis added)
      Stevens then addressed three possible reasons for distinguishing Wickard:
        Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a ?quintessential economic activity??a commercial farm?whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court?s reasoning.
        The fact that Wickard's own impact on the market was "trivial by itself" was not a sufficient reason for removing him from the scope of federal regulation. 317 U. S., at 127. That the Secretary of Agriculture elected to exempt even smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was significant, nor did that fact play any role in the Court's analysis. Moreover, even though Wickard was indeed a commercial farmer, the activity he was engaged in "the cultivation of wheat for home consumption" was not treated by the Court as part of his commercial farming operation.30 And while it is true that the record in the Wickard case itself established the causal connection between the production for local use and the national market, we have before us findings by Congress to the same effect.
      Footnote 30 states:
        See Wickard, 317 U. S., at 125 (recognizing that Wickard?s activity "may not be regarded as commerce").
      This footnote may be the subject of some controversy--watch for future versions of this post. Justice Stevens then went on to address the lack of particularized fact finding by Congress:
        Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see Lopez, 514 U. S., at 562; Perez, 402 U. S., at 156, absent a special concern such as the protection of free speech, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664?668 (1994) (plurality opinion). While congressional findings are certainly helpful in reviewing the substance of a congressional statutory scheme, particularly when the connection to commerce is not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress? authority to legislate.32
      The next paragraph of Stevens's opinion contains two crucial points (indicated by bolding):
        In assessing the scope of Congress? authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ?rational basis? exists for so concluding. Lopez, 514 U. S., at 557; see also Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276?280 (1981); Perez, 402 U. S., at 155?156; Katzenbach v. McClung, 379 U. S. 294, 299? 301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 252?253 (1964). Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels,33 we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity,Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to ?regulate Commerce . . . among the several States.? U. S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.
      The last two sentences--especially the notion that regulating "some purely intrastate activity if of no moment" may be an excess of rhetoric or it might actually signal a shift away from Lopez and Morrison. The next Section of Stevens's opinion addresses Lopez and Morrison:
        As an initial matter, the statutory challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress? commerce power in its entirety.
      This is certainly a distinction--and the implication is that if Congress had regulated noncommercial medical marijuana in a separate statute--that regulation might be unconstitutional, even though it would be functionally identical to the application of the Controlled Substances Act that was attacked in Raich. Stevens continues:
        Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster?s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.36 Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.
      The Opinion then turns to the crucial "class definition" issue:
        The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities that it held to be beyond the reach of federal power, defined as ?the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law.? 352 F. 3d, at 1229. The court characterized this class as "different in kind from drug trafficking." Id., at 1228. The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress? contrary policy judgment, i.e., its decision to include this narrower ?class of activities? within the larger regulatoryscheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in determining that none of the characteristics making up the purported class, whether viewed individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined by the Court of Appeals was an essential part of the larger regulatory scheme.
      Stevens then turns to a criticism of the dissent:
        More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the "outer limits? of Congress? Commerce Clause authority" post, at 1 (O?CONNOR, J., dissenting), it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those "outer limits," ? whether or not a State elects to authorize or even regulate such use.
      Stevens then points out the relevance of his understanding of the dissent's position:
        One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity.
      Stevens then argues that the fact that the State of California legalized medical use is not relevant:
        [L]imiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents? activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is "superior to that of the States to provide for the welfare or necessities of their inhabitants," however legitimate or dire those necessities may be.
      Of course, the Respondents did not question this proposition--which is elementary black letter law. Stevens then goes on to address the argument they did make--that the fact of state regulation insulates medical marijuana from the commercial market for recreational pot:
        Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State of California,? and thus remain ?entirely separated from the market". Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning. See n. 38, supra this page. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected.
      Stevens then goes on to note that the California law did not provide the kind of tight regulations that would isolate the medical market from the recreational one:
        The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor?s permission to recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic.39 And our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so.
      Justice Stevens's Opinion for the Court excplicitly reserves the medical necessity defense for another day:
        Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases.
      Justice Scalia's Concurrence Scalia leads with a classic Scalia line:
        I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.
      But he then gets down to business, discussing the three Perez categories (channels, instrumentalities, effects), and focusing on the third (activities that substantially effect interstate commerce):
        The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete.
        It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress?s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. * * * And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
      After some basic exposition of doctrine, Scalia turns to Lopez and articulates his understanding of the structure of its doctrine:
        As we implicitly acknowledged in Lopez, however, Congress ?s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."
      This is exactly the framework that the Respondent advanced in Randy Barnett's oral argument. Addressing O'Connor's dissent, Scalia then articulates what he sees as the limiting principal of his framework:
        Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.
      He then applies the framework and its limiting principle to Raich:
        Congress has prohibited almost all intrastate activities related to Schedule I substances? both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U. S. C. §§841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress?s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.
        By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate? from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities.
      Scalia ends by summarizing his position (in a way that shows it is significantly narrower than the reasoning of the majority):
        I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market ?could be undercut? if those activities were excepted from its general scheme of regulation. See Lopez, 514 U. S., at 561. That is sufficient to authorize the application of the CSA to respondents.
      Justice O'Connor's Dissent Justice O'Connor leads by framing the issue broadly, emphasizing the importance of federalism and the role of the states as labortories of democracy and state medical marijuana laws as an "experiment." She then summarizes her position:
        Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause?nestling questionable assertions of its authority into comprehensive regulatory schemes?rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U. S. 598 (2000). Accordingly I dissent.
      After some exposition, she then takes on the Stevens's attempt to distinguish Lopez:
        The Court?s principal means of distinguishing Lopez from this case is to observe that the Gun-Free School Zones Act of 1990 was a "brief, single-subject statute," ante, at 20, see also ante, at 19, whereas the CSA is "a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of "controlled substances," ibid.Thus, according to the Court, it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing local activity (there gun possession in school zones), whereas the local activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be separated from the general drug control scheme of which it is a part.
        Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme.
      O'Connor then notes the implications of Stevens's distinction. It would seem that Lopez and Morrison apply only when Congress legislates in a piecemeal fashion:
        Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was ?not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,? 514 U. S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21?22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation" thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones.
      O'Connor then tackles the really tough question: "How can the class of activity be defined in a way that avoids unlimited Congressional power or a requirement of a case-by-case finding of impact on interestate commerce?" Here is her answer:
        A number of objective markers are available to confine the scope of constitutional review here. Both federal and state legislation?including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation?recognize that medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently.
      Having defined the class of conduct at issue, she proceeds to the next step:
        Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and possession of marijuana for one?s own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme.
      O'Connor then turns to Justice Steven's definition of economic activity:
        The Court?s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. * * * the Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach.
      The next step of her argument is to draw out the far-reaching consequences of Stevens's approach:
        It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic.
      Justice O'Connor did not use the example that came up during oral argument--sex within marriage is, of course, a substitute for commercial sex. O'Connor then turned to Wickard v. Filburn:
        The Court suggests that Wickard, which we have identified as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," Lopez, supra, at 560, established federal regulatory power over any home consumption of a commodity for which a national market exists. I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for xcess production. 317 U. S., at 115?116. The AAA itself confirmed that Congress made an explicit choice not to reach?and thus the Court could not possibly have approved of federal control over?small-scale, noncommercial wheat farming. In contrast to the CSA?s limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. Id., at 130, n. 30. Wickard, then, did not extend Commerce Clause authority to something as modest as the home cook?s herb garden.
      And then O'Connor qualifies her point:
        This is not to say that Congress may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress? reach.
      O'Connor then turns to the critical issues regarding the burdens of prooof and persuasion:
        [T]he Government has made no showing in fact that the possession and use of homegrown marijuana for medicalpurposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress? excursion into the traditional domain of States be justified.
      O'Connor then turns to the impact of the "necessary and proper clause" on her analysis:
        That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. * * * As JUSTICE SCALIA recognizes, see ante, at 7 (opinion concurring in judgment), Congress cannot use its authority under the Clause to contravene the principle of state sovereignty embodied in the Tenth Amendment. Ibid. Likewise, that authority must be used in a manner consistent with the notion of enumerated powers--a structural principle that is as much part of the Constitution as the Tenth Amendment's explicit textual command. Accordingly, something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not selfevident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation.
      Given that the burden is on the government, has it been met?
        There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market?or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See Lopez, 514 U. S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial.
      Justice Thomas's Dissent Justice Thomas employed an entirely different framework for his analysis--focusing on the original meaning of the commerce clause and the necessary and proper clause. For example:
        As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586?589 (concurring opinion). The Clause's text, structure, and history all indicate that, at the time of the founding, theterm "commerce" consisted of selling, buying, and bartering, as well as transporting for these purposes. Id., at 585 (THOMAS, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586?587 (THOMAS, J., concurring). Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange?not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (THOMAS, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112?125 (2001). The term "commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857?862 (2003).
      From an originalist perspective, the Controlled Substances Act would seem to sweep far beyond Congress's power:
        On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U. S. C. §801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market, intrastate or interstate, noncommercial or commercial, for marijuana. Respondents are correct that the CSA exceeds Congress? commerce power as applied to their conduct, which is purely intrastate and noncommercial.
      But this is not the end of the matter, because a regulation not authorized by the commerce clause itself, might be "necessary and proper":
        More difficult, however, is whether the CSA is a valid exercise of Congress? power to enact laws that are ?necessary and proper for carrying into Execution? its power to regulate interstate commerce. Art. I, §8, cl. 18. The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.1 Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.
      Thomas then suggests a middle way--that avoids both a latitudinarian and an impossible strict standard for "necessary and proper":
        To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise ?prohibited? by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the [C]onstitution."
      Thomas then distinguishes the application of this standard to facial as opposed to as applied challenges:
        On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 9? 10, 19 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is ?necessary and proper? as applied to medical marijuana users like respondents.
      But in this case, California law has isolated medical marijuana from other marijuana activities:
        California?s Compassionate Use Act sets respondents? conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to ?seriously ill Californians, Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), and prohibits ?the diversion of marijuana for nonmedical purposes, §11362.5(b)(2).4 California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, §11362.5(b)(1)(A), and that he obtain a physician?s recommendation or approval, §11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. §§11362.715? .76. Moreover, the Medical Board of California has issued guidelines for physicians? cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. * * *
        This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws * * * presumption here: Nothing suggests that California?s controls are ineffective. The scant evidence that exists suggests that few people?the vast majority of whom are aged 40 or older?register to use medical marijuana.
      And then:
        But even assuming that States? controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. * * * It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market.
      Thomas then makes another argument--even if regulation of home grown noncommercial medical marijuana were "necessary" to enforce the nation's drug laws, it would not be "proper," because:
        If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress? Article I powers?as expanded by the Necessary and Proper Clause?have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."
        Here, Congress has encroached on States? traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.
      After a point-by-point engagement with the reasoning of Stevens's majority opinion, Thomas concludes:
        The majority prevents States like California from devising drug policies that they have concluded provide muchneeded respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of ?displac[ing] state regulation in areas of traditional state concern,? id., at 583 (KENNEDY, J., concurring). The majority?s rush to embrace federal power ?is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.? United States v. Oakland Cannabis Buyers? Cooperative, 532 U. S. 483, 502 (2001) (STEVENS, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.

Gonzales v. Raich, Part IV: Links This is the fourh of four posts on the Raich case. This part supplies excerpts from and links to news reports and blogospheric reaction to the case.

Tiller & Cross on Legal Doctrine Emerson H. Tiller and Frank B. Cross (Northwestern University - School of Law and University of Texas at Austin - Department of Management Science & Information Systems) have posted What is Legal Doctrine? on SSRN. Here is the abstract:
    Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others' efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe the concept of legal doctrine and propound various theories of how legal doctrine may matter in judicial decision making and how those theories may be empirically tested.

The Future of Family Law The the Institute for American Values has published The Future of Family Law. Here is a description:
    Can a child have three legal parents? Should parenthood be routinely determined by something other than biology? Should we extend the right to marriage to same-sex couples? To groups of people? Or should we abolish marriage as a legal institution all together?<
    These are some of the questions currently being discussed in the field of family law, where arguments about the future of the family have moved far beyond the question of same-sex marriage. The Future of Family Law: Law and the Marriage Crisis in North America, a new report released by the Council on Family Law, takes a close look at how two influential legal organizations, the American Law Institute and the Law Commission of Canada, are proposing to answer them. Written by Daniel Cere of McGill University, this report holds up for clear view the fundamentally different models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood.

The Next Justice? Tony Mauro has a piece entitled On the Trail of the Latest High Court Contender over at Here's a taste:
    Capitol Hill sources and other players in the increasingly frenzied Supreme Court sweepstakes place McConnell, a judge on the 10th U.S. Circuit Court of Appeals, at or near the top of the short list of possible picks for the high court if a vacancy occurs later this month.

Sunday, June 05, 2005
Legal Theory Lexicon: The Attitudinal Model & the New Institutionalism
    Introduction The legal academy is not the only locus for serious study of the law. Legal phenomena are examined in a variety of other disciplines—ranging from philosophy and sociology to history and anthropology, but political science (or “politics” or “government”) is the academic discipline that is most strongly associated with the study of law outside of the law schools. This entry in the Legal Theory Lexicon introduces two distinctive traditions for the study of the law from the perspective of political science. The first of these is the so-called “attitudinal model”—an approach that views courts—especially the United States Supreme Court—as policymaking institutions that are similar to legislatures and administrative agencies. The second approach is sometimes called “the new institutionalism” and it integrates a concern for legal doctrine and rules with other social science tools.
    As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance. It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy.
    The Legal Model and the Attitudinal Model Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.”
    Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patters, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example.
    Within the legal academy, the connection between judicial decisionmaking and politics is associated with American legal realism (and, more recently, with the Critical Legal Studies movement). But in political science, this same insight has been developed in an empirically more rigorous way, and frequently is called “the attitudinal model.”
    The basic insight of the attitudinal model is that judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes of judges. Thus, a simple attitudinal model might code each justice as occupying a point on a real line from left to right. A judge at the left-most point on the line would be very liberal. A judge on the right-most point of the line would be very conservative. The model might then predict how a judge’s attitudes (or position in attitudinal space) would correlate with positions on particular issues. Conservative judges are likely to vote against a right to abortion; liberal judges may be likely to uphold assertions of national power against challenges on federalism grounds.
    Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser!
    There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound.
    When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted.
    More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics.
    The New Institutionalism And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists.
    From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context.
    From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions.
    Conclusion It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law!
      Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).
      Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993).
      Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
      Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964).
      Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001).
      Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.)
      Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999).
      The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999).

Saturday, June 04, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Optional Law : The Structure of Legal Entitlements by Ian Ayres. Here is a blurb:
    Spurred by the advances in option theory that have been remaking financial and economic scholarship over the past thirty years, a revolution is taking shape in the way legal scholars conceptualize property and the way it is protected by the law. Ian Ayres's Optional Law explores how option theory is overthrowing many accepted wisdoms and producing tangible new tools for courts in deciding cases. Ayres identifies flaws in the current system and shows how option theory can radically expand and improve the ways that lawmakers structure legal entitlements. An option-based system, Ayres shows, gives parties the option to purchase-or the option to sell-the relevant legal entitlement. Choosing to exercise a legal option forces decisionmakers to reveal information about their own valuation of the entitlement. And, as with auctions, entitlements in option-based law naturally flow to those who value them the most. Proposing a practical approach to the ongoing question of how to effectively structure legal entitlements, Optional Law will be applauded by legal scholars and professionals who continue to seek new and better ways of fostering the fairest legal judgments possible.
And here is the text from the flap:
    Spurred by the advances in option theory that have been remaking financial and economic scholarship over the past thirty years, a revolution is taking shape in the way legal scholars conceptualize property and the way it is protected by the law. Ian Ayres's Optional Law explores how option theory is overthrowing many accepted wisdoms and producing tangible new tools for courts in deciding cases. Ayres identifies flaws in the current system and shows how option theory can radically expand and improve the ways that lawmakers structure legal entitlements. An option-based system, Ayres shows, gives parties the option to purchase--or the option to sell--the relevant legal entitlement. Choosing to exercise a legal option forces decisionmakers to reveal information about their own valuation of the entitlement. And, as with auctions, entitlements in option-based law naturally flow to those who value them the most. Seeing legal entitlements through this lens suggests a variety of new entitlement structures from which lawmakers might choose. Optional Law provides a theory for determining which structure is likely to be most effective in harnessing parties' private information. Proposing a practical approach to the foundational question of how to allocate and protect legal rights, Optional Law will be applauded by legal scholars and professionals who continue to seek new and better ways of fostering both equitable and efficient legal rules.

Download of the Week The Download of the Week is Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past? by Steven Douglas Smith. 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.
Download it while its hot!

Friday, June 03, 2005
Gordon on the Agricultural Labor Movement Jennifer Gordon (Fordham University School of Law) has posted A Movement in the Wake of a New Law: The United Farm Workers and the California Agricultural Labor Relations Act on SSRN. Here is the abstract:
    How does the passage of a new law affect the social movement that pursued it? Law and social movements scholarship suggests that the "implementation phase" following a legislative victory is a particularly challenging one, with agency capture, bureaucratic foot-dragging, and state co-optation undermining the movement's capacity to deliver what it has promised. This paper, however, tells a different story. In 1975, the United Farm Workers (UFW) succeeded in passing the Agricultural Labor Relations Act, an extraordinary law governing farm labor organizing in California, with provisions much more pro-worker than the National Labor Relations Act. For several years beginning in 1975, the UFW used the new law as a springboard to build its farm worker representation to new heights, despite challenges introduced by the state's comprehensive regulation of the unionization process. I analyze why the Act proved so helpful to the UFW during this period, both drawing on and contesting the more pessimistic law and social movement literature. I conclude that the implementation phase is a richer one than we commonly recognize, with possibilities that depend greatly on the political environment, the type of law in question, and on the particular movement's history, experience with law as a part of its organizing strategy, and level of cohesion and engagement at the time of the law's passage. These possibilities coexist with the tensions that inevitably plague efforts to make new rights real.

Walter on Trafficking in Humans Marilyn R. Walter (Brooklyn Law School) has posted Trafficking in Humans: Now and in Herman Melville's 'Benito Cereno' (William & Mary Journal of Women and the Law, Vol. 12, 2005) on SSRN. Here is the abstract:
    Every year, up to 800,000 persons, many of them women and girls, are recruited, abducted, or sold and then trafficked across international borders. In this multi-billion dollar industry, victims are trafficked for purposes of forced prostitution, forced labor, domestic service, involuntary marriage, debt bondage, and begging. Once they arrive, the trafficking victims are often helpless to escape their slavery-like conditions, and are controlled by physical violence or psychological coercion. Trafficking in human beings is an old story. The slave trade, along with slavery, was protected by this country's laws from the beginning of our history. Commenting on this, Herman Melville wrote Benito Cereno. It is the story of a failed slave mutiny at sea, the slaves' trial, and their execution. Melville shows how the legal system rejected the slaves' right to freedom under natural law, and instead enforced the laws against the victims of slavery. This indifference was reflected in contemporary judicial decisions dealing with the slave trade, slave mutinies, and the fugitive slave laws. Melville's Benito Cereno offers lessons in dealing with modern trafficking, which falls most heavily on the most vulnerable. His novel shows that first, there must be a powerful statement which condemns trafficking as immoral and which supports the natural right of people to be free. Then, laws must be enacted which punish the traffickers and not the victims of trafficking. Finally, these laws must be aggressively enforced by the prosecutors and the courts. These principles mean that current efforts to stop trafficking will not succeed without renewed commitment to aggressive and widespread enforcement of the laws, particularly against organized crime. And to get at the roots of trafficking, this must be accompanied by intensified efforts to change the cultural practices which subjugate the women and girls who are most often its victims.

Hoffman & Tarzian on End-of-Life Care Diane E. Hoffmann and Anita J. Tarzian (University of Maryland - School of Law and University of Maryland, Baltimore County - General) have posted Dying in America - An Examination of Policies that Deter Adequate End-of-Life Care in Nursing Homes (Journal of Law, Medicine and Ethics, Vol. 33, No. 2, Summer 2005) on SSRN. Here is the abstract:
    This article examines current health care policies and government practices that deter appropriate end-of-life care, focusing on the use of hospice services for dying nursing home patients. The authors conclude that hospice and nursing home regulations, reimbursement for hospice and nursing homes, and enforcement of the fraud and abuse rules collude to "chill" utilization of hospice by nursing homes and result in inadequate end-of-life care for many nursing home patients. They argue that these policies and practices have at their roots a number of questionable assumptions and call for a shift in existing paradigms affecting care to this group and a realigning of incentives among these various government policies to achieve consistent policy goals.

Thursday, June 02, 2005
Gilson on the Function of Corporation Law Ronald J. Gilson (Stanford Law School) has posted Separation and the Function of Corporation Law on SSRN. Here is the abstract:
    This article is part of a symposium in honor of William Klein on the subject of a functional typology of corporation law. Any typology must be animated by an underlying theory whose terms dictate the lines the typology draws. Here the focus is on the level of the theory that might animate the architecture of the grid. In particular, the article addresses the separation theorem, which states the implications of complete capital markets on shareholder preferences concerning corporate investment policy. The proposition is that the presence of markets in the characteristics that determine equity value makes a radical difference in the function played by corporate law, in these circumstances essentially limiting the criteria for good corporate law to a single overriding goal: facilitating the maximization of shareholder wealth. I will illustrate the usefulness of a uni-critierion view of corporate law by briefly taking up two familiar issues that span the corporate law domain: the idea of a stakeholder-oriented board of directors in public corporations and the role of the courts in enforcing the reasonable expectations of private corporation shareholders.

Deadline Reminder: Society for Applied Philosophy
    A FINAL REMINDER Registration is closing THIS FRIDAY ( 1 JUNE) for: 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. Registrations via email will be accepted. Registration forms can be found at: Conference Website:

Conference Announcement: LatCrit
    We are pleased to invite you to the Tenth Annual LatCrit Confernece, which will take place October 7-10, 2005 in San Juan, Puerto Rico, where the “LatCrit” subjet position was coined in 1995. Featuring approximately 175 program participants and focused on “Critical Approaches to Economic In/Justice,” the LCX conference program is a reflection of the diverse community and transdisciplinary discourse that we have produced during the past decade. The Program Schedule and registration materials are posted to our website for your easy review, downloading and completion, and timely return: please visit and click on “Annual Conferences” in the tool bar on the upper left hand corner, and then click on “LatCrit X” to access the conference program and registration materials. Just in case, we also are mailing hard copies of these materials, together with other resources, including an updated copy of the LatCrit Informational CD, which you should receive in the next week or so. To register for the conference, please follow the instructions on the LCX Registration Form. The conference registration includes the two “related events” that precede and follow the conference – the Junior Faculty Development Workshop and the Annual LatCrit Planning Retreat (see program schedule for more details). To make your lodging reservations at the conference hotel in San Juan, please contact the Caribe Hilton directly at 1-800-468-8585 from 8 AM to 7 PM (local PR time) or send an email to Please specify that you are with the “LatCrit Group” to receive the discount rate of $140 (plus taxes). The hotel is centrally located and may be reached by van or shuttle from the airport in 15-20 minutes. The hotel’s main phone number is 787-721-0303. We hope you will begin making you advance travel plans now to join us for the conference and the two “related events” (see above), and we look forward to seeing you in sunny San Juan this fall! Abrazos a todas/os!

Wednesday, June 01, 2005
Ramsey on Descriptive Trademarks and Freedom of Speech Lisa P. Ramsey (University of San Diego - School of Law) has posted Descriptive Trademarks and the First Amendment (Intellectual Property Law Journal, Vol. 36, p. 271, 2004; and Tennessee Law Review, Vol. 70, p. 1095, 2003) on SSRN. Here is the abstract:
    The protection of exclusive rights in descriptive trademarks is an unconstitutional restriction of speech under the First Amendment. Trademark laws that prohibit a competitor from using trademarked descriptive words to sell a product fail to satisfy the Central Hudson test for evaluating the constitutionality of commercial speech regulations. The use of a descriptive term to accurately describe a product is not misleading expression regardless of whether another business claims trademark rights in that term. Although the government has a substantial interest in protecting the ability of consumers to identify and distinguish among the products of a business and its competitors, descriptive trademark laws do not directly advance this interest and are more extensive than necessary. Descriptive marks do not identify the source of a product as well as a mark that is fanciful, arbitrary, or suggestive because descriptive marks retain their original descriptive meaning. As descriptive marks quickly and cheaply provide consumers with information regarding the attributes of a product, protecting exclusive rights in such marks does not directly and materially further trademark law's goal of helping consumers identify and distinguish among the products of competing manufacturers. Current trademark law also stifles the free flow of commercial information more than necessary when it protects exclusive rights both in inherently distinctive marks and descriptive marks. The consumer-oriented goals of trademark law are satisfied if the government grants and enforces trademark rights only in inherently distinctive marks.

Bibas on Blakely & Substance versus Procedure Stephanos Bibas (University of Iowa, College of Law) has posted The Blakely Earthquake Exposes the Procedure/Substance Fault Line (Federal Sentencing Reporter, Vol. 17, No. 4, April 2005) on SSRN. Here is the abtract:
    In Blakely v. Washington, the Supreme Court required that juries, not judges, find beyond a reasonable doubt facts that raise maximum sentences under sentencing guidelines. The Justices of the Supreme Court have equivocated on whether this rule is procedural or substantive. If it is substantive, it should automatically apply retroactively on collateral review, and the Ex Post Facto Clause should hamstring substantive legislative fixes. If it is procedural and not a watershed rule, then Blakely's rule should not be retroactive on collateral review and legislatures should enjoy more freedom to repair guideline systems. The majority and dissenters in Apprendi v. New Jersey and Blakely seemed to be talking past each other instead of engaging these issues. The majority's rhetoric suggests that Blakely protects essential substantive definitions of crimes. Logically, then, it should be fully retroactive, but Justices in the majority have been inconsistent on this point. The dissenters, in contrast, view the majority's rule as a mindless formalism, a mere procedural hoop through which legislatures must jump. On this logic, Blakely's rule should be procedural and non-retroactive. Once again, though, the dissenting Justices have been inconsistent on this point. Apprendi and Blakely have posed fundamental questions of what is an element of a crime and what justifies punishment. Sadly, Booker v. United States retreated from engaging these deep questions. And when the Court has addressed the right questions, it has given the wrong answers by shoehorning substantive rights into the Fifth and Sixth Amendments, which do not discuss the definitions of crimes and punishments. Instead, the Court should have addressed these concerns via the Eighth Amendment, which naturally links crimes to punishments.