Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Tuesday, January 31, 2006
Hasen on the Failure of the Alito Filibuster Read The Failed Alito Filibuster, with an excellent analysis of Hasen's own failed prediction that Alito would be defeated. Here's a taste:
With respect to the Gang of 14 and the agreement, I certainly agree that the agreement did not help Democrats or hurt Republicans--contrary to the hew and cry at the time. But I don't think the agreement itself, actually hurts Democrats much either. It is not the agreement among the Gang of 14 that prevents a successful filibuster. That's because the agreement is not much more than "cheap talk." Any Senator who wanted to vote against Alito could reasonably claim exceptional circumstances. It is the political preferences of the Senators and not the agreement or the chumminess of the gang that is doing the work. Rowe & Baskauskas on the Rooker-Feldman Doctrine Thomas D. Rowe, Jr. and Edward L. Baskauskas (Duke University School of Law and Golden Gate University - School of Law) have posted 'Inextricably Intertwined' Explicable at Last? Rooker-Feldman Analysis After the Supreme Court's Exxon Mobil Decision (Federal Courts Law Review, Forthcoming) on SSRN. Here is the abstract:
Comande on Adjudicating Personal Injury Damages Giovanni Comande (Sant'Anna School of Advanced Studies - Faculty of Law) has posted Towards a Global Model for Adjudicating Personal Injury Damages: Bridging Europe and the United States (Temple International & Comparative Law Journal, Vol. 19, No. 2, 2005) on SSRN. Here is the abstract:
Tuesday Calendar
McGovern on Claims Resolution Faciliites Francis E. McGovern (Duke University School of Law) has posted The What and Why of Claims Resolution Facilities (Stanford Law Review, Vol. 57, p. 1361, April 2005) on SSRN. Here is the abstract:
Rosenthal on the Theory of Government Damages Liability Lawrence Rosenthal (Chapman University - School of Law) has posted The Theory and Practice of Government Damages Liability: Torts, Constitutional Torts, and Takings. Here is the abstract:
Monday, January 30, 2006
Constitutional Abstraction and Originalism I've been thinking and reading a good deal about constitutional theory recently, and coincidentally have come across several versions of a familiar argument against originalism. It goes something like this:
Second, this argument conflates the crucial distinction between what can be labeled original meaning originalism and original intent originalism. With few exceptions, contemporary originalists believe that the relevant inquiry is into the original public meaning of the constitution--not into the expectaitons or intentions of the framers with respect to how the constitution should or would be applied. Ironically, the move presupposes the relevance of both original public meaning and original intentions as it attempts to argue against them. Third, this argument is usually offered without the necessary supporting evidence. The constitution uses the phrase "equal protection of the laws" and "due process of law." Those phrases might be construed as general and abstract principles of equality and fairness, but they might not. Either phrase, or both, might have a relatively particular, sharp edged meaning. Whether they do or not cannot be answered by hand waving. You need to dig into the text and evidence about the public meaning of the phrasss at the time they were drafted and adopted. Fourth, the argument does not establish that expectations about application are irrelevant to constructiona and interpretation--merely that they would be relevant in a particular fashion. For example, even if the equal protection clause establishes some kind of equality principle, the question remains, "What principle?" Assume that it is possible that the idea was to establish judicial license to articulate some conception of equality and that the clause embodies only the general concept. (I am deploying the well known concept/conception distinction, best known from Rawls and Dworkin.) Evidence about expectations and intentions would be relevant to the question whether the "concept of equality" was the original public meaning and, if so, what the even the general concept meant. Monday Calendar
UCLA Law: Professor Bill Henderson Indiana University School of Law-Bloomington, "An Empirical Study of Single-Tier versus Two-Tier Partnerships in the AM Law 200" Hofstra Law: Seth Harris, New York Law School, “Law, Economics, and Accommodations in the Internal Labor Market” NYU Law: Richard Primus. Patterson on Morawetz on Wittgenstein Dennis Patterson (Rutgers University School of Law, Camden) has posted Wittgenstein on Understanding and Interpretation (Comments on the Work of Thomas Morawetz) (Philosophical Investigations, Vol. 29, No. 2, April 2006) on SSRN. Here is the abstract:
Garrett & Vermeule on Budget Process Transparency Elizabeth Garrett and Adrian Vermeule (University of Southern California - Law School and University of Chicago Law School) have posted Transparency in the Budget Process on SSRN. Here is the abstract:
Broughton on Capital Punishment J. Richard Broughton (United States Department of Justice - Capital Case Unit) has posted The Second Death of Capital Punishment on SSRN. Here is the abstract:
Raustiala & Sprigman on the Piracy Paradox and Fashion Design Kal Raustiala and Chris Sprigman (University of California, Los Angeles - School of Law and University of Virginia - School of Law) have posted The Piracy Paradox: Innovation And Intellectual Property In Fashion Design on SSRN. Here is the abstract:
Joseph on "Smart Intelligence" Anne M Joseph (UC Berkeley Law) has posted The Architecture of Smart Intelligence: Balancing Unification and Redundancy in Agency Design and Congressional Oversight (California Law Review, Vol. 94, 2006) on SSRN. Here is the abstract:
Degan on Taxing Commuting Expenses Tsilly Dagan (Bar-Ilan University, Faculty of Law) has posted Ordinary People Necessary Choices on SSRN. Here is the abstract:
Sunday, January 29, 2006
Legal Theory Calendar The Calendar is still in progress.
UCLA Law: Professor Bill Henderson Indiana University School of Law-Bloomington, "An Empirical Study of Single-Tier versus Two-Tier Partnerships in the AM Law 200" Hofstra Law: Seth Harris, New York Law School, “Law, Economics, and Accommodations in the Internal Labor Market” NYU Law: Richard Primus.
NYU Legal History: Claire Priest, Northwestern, “Creating an American Property Law: Alienability and its Limits in American History” Ohio State Law: Omri Ben-Shahar, Contracts Without Consent UCLA Legal History: Dennis J. Ventry, Jr., UCLA, "Family Tax Inequities and Community Property Law, 1913-1930"
Stanford Law & Economics: Daniel Kelly (U.S. Court of Appeals for the Second Circuit), "The 'Public Use' Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence" Lewis & Clark Law: Anita Bernstein, Emory, Keep It Simple: An Explanation of the Rule of No Recovery for Pure Economic Loss Boston University Law: Mike Meurer and Maureen O'Rourke, Contract and Coordination Failure: Mandatory and Prohibited Terms in Intellectual Property Licenses. Brooklyn Law: Wendy Seltzer, Brooklyn Law School, The Chilling Effects of Legal Threats to Online Speech—and Ways to Warm the Air. Florida State Law: Suzanna Sherry, Vanderbilt University Law School. Fordham Law: Thomas H. Lee, Fordham & Visiting Columbia, "The World Balance of Power and the Evolution of U.S. Foreign Relations Law" UC Berkeley, Kadish Center: Lawrence Sager, Texas. NYU Colloquium on Tax Policy & Public Finance: Jason Furman, NYU Wagner School, “Coping With Demographic Uncertainty.” Northwestern Law, Advanced Topics in Taxation: Steven A. Bank, Professor of Law, University of California at Los Angeles, "Dividends and Tax Policy in the Long-Run" Oxford Comparative Law Discussion Group: Dr Péter Gárdos, Fundamental Conceptions of the Basis of Civil Liability: Insights from the Draft Hungarian Civil Code
Notre Dame Law: Ernest A. Young, Texas. Georgetown Law & Economics: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements: The Role of Termination Clauses" Boston College Law: Michelle J. Anderson, Professor of Law, Villanova University School of Law. University of Illinois Law: East Asia Undisciplined: Law, Economics, and Institutions in East Asia
Legal Theory Lexicon: Balancing Tests
Case-by-Case versus Systemic Balancing The first distinction to master when thinking about balancing tests is that between case-by-case and systemic balancing. When a court adopts a case=by-case balancing test, the test is applied to each case, one case at a time. For example, in personal jurisdiction law, a case-by-case balancing test is used to determine whether assertions of personal jurisdiction are consistent with the Due Process Clause. But not all balancing is done on a case-by-case basis. For example, Mathews v. Eldridge announced a balancing test for determining whether pre-deprivation hearings are required by Due Process. This balancing test is applied to general categories (types) of deprivations. Once it has been determine that the balancing test does not require a hearing in category (e.g. Social Security disability benefit cases), the result is a categorical rule that can be applied to the category without further balancing. There is, of course, an analogy between the difference between case-by-case versus systemic balancing and the difference between act and rule utilitarianism. Act utilitarianism makes the rightness of an action depend on the consequences of that individual action. Rule utilitarianism makes the rightness of an action depend on whether the action conforms to the system of rules that would produce the best consequences. This analogy points to a larger concept--the scope of decision problem. Many legal theories assume that the scope of decision is an individual action or case, whereas others look to individual legal rules and yet others look to types of rules. Here is a nifty move, made famous by David Lyons (the legal philosopher who teaches at Boston University). Lyons argued that rule utilitarianism could be shown to be extensionally equivalent to act utilitarianism. His argument was beautifully simple. Take a rule and a particular action that would be required by act utilitarianism but forbidden by the utility maximizing rule. Now imagine an exception to the rule that would allow the utility maximizing action to be treated differently. The new rule-plus-exception produces more utility than the old rule. Hence rule utilitarianism requires the new rule. Lyons argued that we can iterate this move until rule utilitarianism and act utilitarianism require exactly the same results. One more point about case-by-case versus systemic balancing. Both kinds of balancing can be done ex post (backwards looking) or ex ante fowards looking. Take the Learned Hand balancing test for negligence. This test requires us to compare the cost of safety (ex post) against the benefits (ex post). This is ex post, case-by-case balancing. But when courts decide whether to issue an injunction, they sometimes "balance the equities," ex ante, asking whether the injuries done if the injunction does not issue will outweigh those that will result if the injunction is entered--in the future. Likewise, systemic balancing can be done either ex post or ex ante. What is Balanced? Yet another question that must be faced by any balancing test is "What is balanced?" Courts seem to think that just about any sort of interest or factor can be balanced. One kind of balancing test is represented by the International Shoe test for personal jurisdiction. This test balances interests--i.e. the interest of the plaintiff in the forum, the interest of the forum in the dispute, and so forth. Another kind of balancing test takes a varity of so-called factors into account: "prejudice to the defendant," "the impact on nonparties," and so forth in the case of tests for mandatory joinder. Properly speaking, such factors cannot really be balanced. Interests belong on the same scale--at least if they are the right kind of interests, but "factors" are usually considerations that bear in complex ways on a decision. The integration of multiple factors into a decision may involve balancing, but it also may involve reasoning that doesn’t actually weigh and compare commensurables. The Commensurability Problem This last point about balancing tests leads to a very fundamental idea in legal theory. Some approaches to moral theory make all ultimate values commensurable. In contemporary law and economics, for example, one approach reduces all value to preference-satisfaction, which then can be weighed via a Bergson-Samuelson social utility function. W(x) = F {U1(x), U2(x), . . UN(x)}, where F is some increasing function, U1 is the utility of state of affairs X for individual number 1, and so forth. Although some forms of consequentialism have the property of making all values commensurable, many moral theories do not have this property. Deontological ethics and virtue ethics, for example, generally are interpreted as maintaining that not all values are commensurable and hence as denying that balancing is even possible in some choice situations. The commensurability problem also provides a nifty move for legal theorists. If someone proposes a balancing test, ask yourself if the things that it requires to be weighed are such that they really can be measured on the same scale. If not, then the proposed balancing test simply will not be able to do the work assigned to it. Balancing Tests and the Rule of Law Yet another issue concerning balancing tests is the fancy version of the law student's intuition that balancing tests are subjective. Justice Scalia, for example, has argued that balancing tests undermine the rule of law because of their subjectivity and elasticity. If we believe that the rule of law values--certainty and predictability of the law--are very great social goods, then we have a general reason to prefer categorical rules to balancing tests. On the other hand, some balancing tests may be actually be more predictable than some rules with respect to a particular problem. For example, a case could be made that the "purposeful availment" component of the International Shoe test for personal jurisdiction is more subjective than the multifactor balancing component of the Shoe test. Some rules are very fuzzy; some balancing tests are quite precise. Conclusion Balancing tests are so common in American law, that you might begin to take them for granted, but that would be a mistake. Almost every balancing test raises interesting issues of legal theory. I hope this post has provided you with the tools to begin asking those questions. Saturday, January 28, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Educating Oneself in Public : Critical Essays in Jurisprudence by Michael S. Moore. Here's a blurb:
Download of the Week The Download of the Week is Law, Science, and Morality: A Review of Richard Posner's The Problematics of Moral and Legal Theory by John Mikhail. Here is the abstract:
Friday, January 27, 2006
Friday Calendar
Oxford Centre for Competition Law & Policy: Peter Willis & Taylor Wessing, The privilege against self-incrimination in competition investigations All Souls College, Oxford, Neill Lecture: The Honourable Michael Beloff QC, Paying the Judges - Who, Whom, How Much and Why? Vanderbilt Faculty Workshop: Don Herzog, University of Michigan Law School, "The Kerr Principle, State Action and Legal Rights" University of Syracus, Sawyer Law and Politics Program Research Workshop: Petra Hejnova, Maxwell School, "Women's Mobilization and Democratic Transitions: A Study of Regional Patterns" University of Georgia Law: Ronald Rotunda (George Mason), The Detainee Cases of 2004 and Their Aftermath Michigan State University: THIRD ANNUAL INTELLECTUAL PROPERTY & COMMUNICATIONS LAW AND POLICY SCHOLARS ROUNDTABLE Rossi on Gardner on State Constitutions Jim Rossi (Florida State University College of Law) has posted The Puzzle of State Constitutions on SSRN. Here is the abstract:
Ryan on Breyer and Sunstein James E. Ryan (University of Virginia School of Law) has posted Does It Take a Theory? Originalism, Active Liberty and Minimalism (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Greeen on Employment Discrimination Mediation Michael Z. Green (Texas Wesleyan University) has posted Tackling Employment Discrimination With ADR: Does Mediation Offer A Shield for the Haves or Real Opportunity for the Have-Nots? (Berkeley Journal of Employment and Labor Law, Forthcoming) on SSRN. Here is the abstract:
White on Jackson's Youngstown Opinion Adam White has posted Justice Jackson’s Draft Opinions In The Steel Seizure Cases on SSRN. Here is the abstract:
Kaplan on Tax Policy and Family Care for Older Adults Richard Kaplan (Illinois) has posted Federal Tax Policy and Family-Provided Care for Older Adults (Virginia Tax Review (vol. 25, no. 2), Fall 2005 issue, pp. 509-562) on SSRN. Here's the abstract:
Thursday, January 26, 2006
Thursday Calendar
Boston University Law: David Walker, Financial Accounting, Corporate Behavior, and the Promise of Offensive Accounting Brooklyn Law: Margaret A. Berger, Brooklyn Law School, Vioxx: A Roadmap of Fissures in Our Legal and Healthcare Systems Florida State Law: Charlene Luke, Florida State University School of Law UC Berkeley, Kadish Center: Charles Beitz, Professor of Politics, Princeton University Kings College, London: Angus Dawson (Keele) Children's vaccinations, best interests and parental disagreement. Forum for European Philosophy, Institut Français, London: Rupert Read (UEA), Rawls and Habermas: Liberalism is inherently inegalitarian and unsustainable. Oxford EC Law Discussion Group & Oxford Comparative Law Discussion Group: Vanessa Mak, Harmonisation of European Contract Law: Problem Areas in the Sale of Goods Law UCLA Legal Theory Workshop: Annelise Riles. UCLA Tax Policy and Public FInance Workshop: Michael Livingston, Rutgers School of Law - Camden, Rendering Unto Caesar: Religious Perspectives on Progressive and Flat Taxation University College London, Current Legal Problems Lecture: Mr Gavin Phillipson (King's College London), "Deference, Discretion and Democracy: Judicial Reasoning under the Human Rights Act" University of Michigan, Law & Economics: Richard Nelson, Columbia, The Market Economy, and the Scientific Commons University of Texas Colloquium on Constitutional and Legal Theory: Jane Schacter (Wisconsin, Stanford), "Political Accountability, Proxy Accountability, and Democratic Legitimacy" & "Democracy Diminished" Yale Law Economics & Organizations: Professor James Poterba, MIT, Economics, Defined Contribution Plans and Retirement Saving Risk and also here. Wednesday, January 25, 2006
Wednesday Calendar
University College London, International Law Society: Professor Christine Chinkin, LSE, "Gender and international peace and security" Philosophy of Education, London: John Marshall, Multiculturalism and Culturual Plurality Revisited. NYU Law & History: Barry Friedman, Jacob D. Fuchsberg Professor of Law, NYU School of Law, "Neither Force Nor Will: The Popular Foundations of Judicial Review" Oxford, The Ethox Centre and Oxford Genetics Knowledge Park Seminar Series 2006: Professor Bartha Maria Knoppers, "The Public Population Project in Genomics (P3G) International Consortium for Linking Population Genomic Studies: What it is and what it offers." Oxford Criminology Seminar Series 2005/06: Julian Roberts, The Virtual Prison: Community Custody and the Evolution of Imprisonment Oxford Law Faculty: Jeremy Horder, A New Homicide Act for England and Wales? (Consultation Paper no.177) University of Toronto: Lisa Philipps, York University, Partners in Business, Partners in Love: Tax Law and the Two-Person Career Villanova Law: David Wilkins, Harvard Law School. Mikhail on Posner John Mikhail (Georgetown) has posted Law, Science, and Morality: A Review of Richard Posner's The Problematics of Moral and Legal Theory on SSRN. Here is the abstract:
Frost on Judicial Recusal Amanda Frost (American University) has posted Keeping Up Appearances on SSRN. Here is the abstract:
More on Open Access Publishing & e-prints Michael Froomkin writes about his Copyright Experiences Wiki--a site that provides information about copyright policies of various legal publishers. It's a Wiki--so you (or we) can share information about various journals. Here's the description from the site:
Tuesday, January 24, 2006
Are Reprints Obsolete?--with an Update Dan Solove has a very interesting post over at Concurring Opinions. Here's a taste:
Update: Michael Froomkin comments on Solove's post:
2. With respect to those who you email links, there is the problem of public access. Of course, if you publish in a journal that allows or provides a public access (free, downloadable) electronic version, this is not a problem. But some peer-reviewed journals charge a truly prohibitory fee for one-time downloads by nonsubscribers, i.e. $30 for one copy of one article. The best solution is do not publish in these journals. Book Announcement: Happy Lives & the HIghest Good by Lear
Tuesday Calendar
Chicago IP Colloquium, Chicago-Kent College of Law: Professor Rebecca Eisenberg, The University of Michigan Law School, Drug Regulation as Intellectual Property. Lewis & Clark Law: Geoffrey Manne, The Cost of Disclosure Oxford Human Rights Discussion Group: Kai Moller, Two Conceptions of the Constitutional Right to Privacy Merton College, Oxford: Chris Hale, Private Equity USC-Caltech Center for the Study of Law & Politics, Challenges of Participatory Democracy Workshop: Donald Green, Yale Unviersity, Department of Political Science, What Can Be Done to Increase Voter Turnout? Putting the Party Back into Politics: Results of an Experiment Designed to Increase Voter Turnout through Music, Food and Entertainment & The Impact of Radio Advertisements on Voter Turnout and Electoral Competitiveness University of Chicago, Coase Lecture: Lior Strahilevitz, Information Asymmetries and the Rights to Exclude. Monday, January 23, 2006
Monday Calendar
Florida State Law: Douglas Baird, University of Chicago Law School London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Raimo Tuomela (Helsinki), Cooperation and the We-Perspective University of Texas Law: Abe Wickelgren (UT Economics) "Why Divorce Laws Matter: Incentives for Non-Contractible Marital Investments Under Unilateral and Consent Divorce Vanderbilit Law & Politics Seminar: Virginia Hettinger, University of Connecticut Political Science, & Wendy Martinek, SUNY Binghamton Political Science, "Judging on a Collegial Court: Influences on Federal Appellate Decision Making" Welcome to the Blogosphere . . . . . . to Feminist Law Professors, with Ann Bartow and Wendy Gordon, Caitlin Borgmann, Jenny Rivera, Rebecca M. Bratspies, Ruthann Robson, Katherine Franke, Susan Sturm, Martha Fineman, Sonia Katyal, Rebecca Tushnet, Amy Adler, Sylvia Law, Kimberly Yuracko, Margaret Chon, Deborah Rhode, Ellen Podgor, JoAnne Epps, Kathryn Stanchi, Madhavi Sunder, Berta Hernandez, Nancy Dowd, Elizabeth B. Brandt, Maureen Laflin, Anita L. Allen-Castellitto, Regina Austin, Fran Ansley, Jennifer Hendricks, Joan MacLeod Heminway, Mae Quinn, Llewellyn Gibbons, and Jessica Litman. That's quite a line up! Symposium Announcement: The Future of Unenumerated Rights
Sunday, January 22, 2006
Legal Theory Calendar
Florida State Law: Douglas Baird, University of Chicago Law School London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Raimo Tuomela (Helsinki), Cooperation and the We-Perspective University of Texas Law: Abe Wickelgren (UT Economics) "Why Divorce Laws Matter: Incentives for Non-Contractible Marital Investments Under Unilateral and Consent Divorce Vanderbilit Law & Politics Seminar: Virginia Hettinger, University of Connecticut Political Science, & Wendy Martinek, SUNY Binghamton Political Science, "Judging on a Collegial Court: Influences on Federal Appellate Decision Making"
Chicago IP Colloquium, Chicago-Kent College of Law: Professor Rebecca Eisenberg, The University of Michigan Law School, Drug Regulation as Intellectual Property. Lewis & Clark Law: Geoffrey Manne, The Cost of Disclosure Oxford Human Rights Discussion Group: Kai Moller, Two Conceptions of the Constitutional Right to Privacy Merton College, Oxford: Chris Hale, Private Equity USC-Caltech Center for the Study of Law & Politics, Challenges of Participatory Democracy Workshop: Donald Green, Yale Unviersity, Department of Political Science, What Can Be Done to Increase Voter Turnout? Putting the Party Back into Politics: Results of an Experiment Designed to Increase Voter Turnout through Music, Food and Entertainment & The Impact of Radio Advertisements on Voter Turnout and Electoral Competitiveness University of Chicago, Coase Lecture: Lior Strahilevitz, Information Asymmetries and the Rights to Exclude.
University College London, International Law Society: Professor Christine Chinkin, LSE, "Gender and international peace and security" Philosophy of Education, London: John Marshall, Multiculturalism and Culturual Plurality Revisited. NYU Law & History: Barry Friedman, Jacob D. Fuchsberg Professor of Law, NYU School of Law, "Neither Force Nor Will: The Popular Foundations of Judicial Review" Oxford, The Ethox Centre and Oxford Genetics Knowledge Park Seminar Series 2006: Professor Bartha Maria Knoppers, "The Public Population Project in Genomics (P3G) International Consortium for Linking Population Genomic Studies: What it is and what it offers." Oxford Criminology Seminar Series 2005/06: Julian Roberts, The Virtual Prison: Community Custody and the Evolution of Imprisonment Oxford Law Faculty: Jeremy Horder, A New Homicide Act for England and Wales? (Consultation Paper no.177) University of Toronto: Lisa Philipps, York University, Partners in Business, Partners in Love: Tax Law and the Two-Person Career Villanova Law: David Wilkins, Harvard Law School.
Boston University Law: David Walker, Financial Accounting, Corporate Behavior, and the Promise of Offensive Accounting Brooklyn Law: Margaret A. Berger, Brooklyn Law School, Vioxx: A Roadmap of Fissures in Our Legal and Healthcare Systems Florida State Law: Charlene Luke, Florida State University School of Law UC Berkeley, Kadish Center: Charles Beitz, Professor of Politics, Princeton University Kings College, London: Angus Dawson (Keele) Children's vaccinations, best interests and parental disagreement. Forum for European Philosophy, Institut Français, London: Rupert Read (UEA), Rawls and Habermas: Liberalism is inherently inegalitarian and unsustainable. Oxford EC Law Discussion Group & Oxford Comparative Law Discussion Group: Vanessa Mak, Harmonisation of European Contract Law: Problem Areas in the Sale of Goods Law UCLA Legal Theory Workshop: Annelise Riles. UCLA Tax Policy and Public FInance Workshop: Michael Livingston, Rutgers School of Law - Camden, Rendering Unto Caesar: Religious Perspectives on Progressive and Flat Taxation University College London, Current Legal Problems Lecture: Mr Gavin Phillipson (King's College London), "Deference, Discretion and Democracy: Judicial Reasoning under the Human Rights Act" University of Michigan, Law & Economics: Richard Nelson, Columbia, The Market Economy, and the Scientific Commons University of Texas Colloquium on Constitutional and Legal Theory: Jane Schacter (Wisconsin, Stanford), "Political Accountability, Proxy Accountability, and Democratic Legitimacy" & "Democracy Diminished" Yale Law Economics & Organizations: Professor James Poterba, MIT, Economics, Defined Contribution Plans and Retirement Saving Risk and also here.
Oxford Centre for Competition Law & Policy: Peter Willis & Taylor Wessing, The privilege against self-incrimination in competition investigations All Souls College, Oxford, Neill Lecture: The Honourable Michael Beloff QC, Paying the Judges - Who, Whom, How Much and Why? Vanderbilt Faculty Workshop: Don Herzog, University of Michigan Law School, "The Kerr Principle, State Action and Legal Rights" University of Syracus, Sawyer Law and Politics Program Research Workshop: Petra Hejnova, Maxwell School, "Women's Mobilization and Democratic Transitions: A Study of Regional Patterns" University of Georgia Law: Ronald Rotunda (George Mason), The Detainee Cases of 2004 and Their Aftermath Michigan State University: THIRD ANNUAL INTELLECTUAL PROPERTY & COMMUNICATIONS LAW AND POLICY SCHOLARS ROUNDTABLE
Legal Theory Lexicon: Procedural Justice
Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome. Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,
In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:
The final notion is "pure procedural justice." Rawls writes:
Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:
But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy. The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:
Consider for example, Richard Posner?s economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs. The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures. On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:
Online Resource Bibliography Saturday, January 21, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Bad Acts and Guilty Minds : Conundrums of the Criminal Law by Leo Katz. Here's a description:
Download of the Week The Download of the Week is Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law bv Bob Bone. Here is the abstract:
Friday, January 20, 2006
Posting on Friday & Saturday I'm attending a roundtable on intention and responsibility in Death Valley, California. No broadband, no wireless, and no public computer at the hotel! I'm putting up Friday's posts very early in the morning on Friday & will put up Saturday's posts very late on Saturday night. A more regular posting schedule will resume on Sunday! Friday Calendar
Oxford Centre for Competition Law & Policy: Simon Priddis, Senior Director for Competition Casework , OFT, The Law and Economics of Conglomerate Mergers. Syracuse, Sawyer Law and Politics Program: Amanda DiPaolo, Maxwell School, "All Laws But One: The American Civil War and the Writ of Habeas Corpus", Discussant Jason Plume, Maxwell School. University of Texas Law: John Robertson, Embryo Culture and the 'Culture of Life': Constitutional Issues in the Embryonic Stem Cell Debate Gulati & Choi Study Securities Disclosure Practices G. Mitu Gulati and Stephen J. Choi (Georgetown University Law Center and New York University - School of Law) have posted An Empirical Study of Securities Disclosure Practices on SSRN. Here is the abstract:
O'Cinneide on Antidiscrimination Law in Britain Colm O'Cinneide (University College London - Faculty of Laws) has posted Fumbling Towards Coherence: The Slow Evolution of Equality and Anti-Discrimination Law in Britain (Northern Ireland Legal Quarterly, Forthcoming) on SSRN. Here is the abstract:
Ross Compares Italy & the US on Transnational Undercover Policing Cooperation Jacqueline E. Ross (University of Illinois College of Law) has posted Impediments to Transnational Cooperation in Undercover Policing: A Comparative Study of the United States and Italy (American Journal of Comparative Law, Vol. 52, No. 3, pp. 569-624, 2004) on SSRN. Here is the abstract:
Raeder on Crawford Myrna Raeder (Southwestern University School of Law) has posted Remember the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases (Brooklyn Law Review, Vol. 71, p. 311, Fall 2005) on SSRN. Here is the abstract:
Corporate Lawyers & Perjury Thomas D. Morgan (George Washington University Law School) has posted The Corporate Lawyer and 'The Perjury Trilemma' (Hofstra Law Review, 2006) on SSRN. Here is the abstract:
Conference Announcement: Trade & Legal Aid in Nassau
Thursday, January 19, 2006
Thursday Calendar With an updated entry at the end of the post.
Boston College Criminal Law Roundtable: Carol Steiker, Harvard Law School, "No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, And The Death Penalty" UC Berkeley, Kadish Center: Meier Dan-Cohen, REVISING THE PAST:ON THE METAPHYSICS OF REPENTANCE, FORGIVENESS, AND PARDON. Dan-Cohen's work is always interesting! Boston University Law: Jack Beerman, The Supreme Common Law Court of the United States University of North Dakota, Indian Law: Angela R. Riley, "Sovereignty and Il/liberalism" University of Michigan Law & Economics: Bronwyn Hall, UC-Berkeley, Intellectual Property Strategy in the Global Cosmetics Industry. Florida State Law: Nancy Staudt, Washington University School of Law, Auditing the Court: Congressional Oversight of Supreme Court Decision-Making. Fordham Law: Ronald J. Mann, University of Texas School of Law, "Contracting for Credit" Ohio State Criminal Law: Tracy Thomas, Akron (summary here) UCLA Tax Policy: Beth Garrett, USC Law School, Report of the Advisory Panel on Federal Tax Reform. UCLA Politics and International Law Colloquium: Beth Simmons, Department of Government, Harvard University, "International Human Rights: Law, Politics, and Accountability" University College, London, Faculty of Law: David Ormerod (University of Leeds), ‘Making Sense of Statutory Conspiracies’ New: NYU Colloquium on Tax Policy & Public Finance: Alex Raskolnikov, Columbia Law School, “An Economic Analysis of Tax Enforcement and the Self-Adjusting Penalty.” Leipold on Pretrial Process & Wrongful Convictions Andrew D. Leipold (University of Illinois College of Law) has posted How the Pretrial Process Contributes to Wrongful Convictions (American Criminal Law Review, Vol. 42, pp. 1123-1165, 2005) on SSRN. Here is the abstract:
Pollack on ISP Liability Malla Pollack (Univ. of Idaho, College of Law) has posted Rebalancing Section 512 to Protect Fair Users from Herds of Mice-Trampling Elephants, or A Little Due Process Is Not Such A Dangerous Thing (Santa Clara Computer and High Technology Law Journal, Vol. 22, No. 3, 2006) on SSRN. Here is the abstract:
Singel & Fletcher on Tribal Property Wenona Singel and Matthew L.M. Fletcher (University of North Dakota - School of Law and University of North Dakota - School of Law) have posted Power, Authority, and Tribal Property (Tulsa Law Review, forthcoming) on SSRN. Here is the abstract:
Flood, Webb, and Boon on Postmodern Professionalism and Legal Education John Flood , Julian Webb and Andrew Boon (University of Westminster , University of Westminster - School of Law and University of Westminster - School of Law) have posted Postmodern Professions: The Fragmentation of Legal Education (Journal of Law and Society, Vol. 32, No. 3, pp. 473-492, September 2005) on SSRN. Here is the abstract:
Call for Proposals: Environmental Ethics
Wednesday, January 18, 2006
Wednesday Calendar
NYU Legal History: Tamar Herzog, Professor, Stanford University, History Dept., “‘Us’ and ‘Them’ in the Early Modern Spanish Atlantic World” UCLA Legal History Workshop: Amalia D. Kessler, Stanford School of Law, "From Public Hazard to Social Good: The Parisian Merchant Court and the Rise of a New Conception of Commerce" Fanto on Paternalistic Regulation of Management James A. Fanto (Brooklyn Law School) has posted Paternalistic Regulation of Public Company Management: Lessons from Bank Regulation on SSRN. Here is the abstract:
Berger on the Precariousness of the Criminal Law Benjamin L. Berger (University of Victoria - Faculty of Law) has posted On the Book of Job, Justice, and the Precariousness of the Criminal Law (Law, Culture, and the Humanities, Forthcoming) on SSRN. Here is the abstract:
Daicoff on Lawyering as Healing Susan (Florida Coastal School of Law) has posted Law As A Healing Profession: The Comprehensive Law Movement (Pepperdine Dispute Resolution Law Journal, Fall 2005) on SSRN. Here is the abstract:
Vischer on Phramacist Rights Robert K. (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace on SSRN. Here is the abstract:
Call for Papers: Religion, Science and Public Concern
Tuesday, January 17, 2006
Tuesday Calendar
Northwestern Constitutional Theory: Kent Greenawalt, Affiliated Professor of Law, Columbia University, "Religion and Fairness, Vol. II: Establishment" New: University of Pennsylvania Tax Policy Workshop: Anne Alstott & Benjamin Novick, “Revisiting the Fiscal Politics of the 1920s" Welcome to the Blogosphere . . . . . . to Truth on the Market with Josh Wright, Bill Sjostrom Geoffrey Manne, Keith Sharfman, Pseudonym on the Market, and Thom Lambert. Bone on Good Will in Trademark Law Robert G. Bone (Boston University School of Law) has posted Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
Cox & Thomas on the Failure of Financial Institutions to Participate in Securities Class Action Settlements James D. Cox and Randall S. Thomas (Duke Law School and Vanderbilt University - School of Law) have posted Letting Billions Slip Through Your Fingers: Empirical Evidence and Legal Implications of the Failure of Financial Institutions to Participate in Securities Class Action Settlements (Stanford Law Review, Vol. 58, p. 411, November 2005) on SSRN. Here is the abstract:
Penalver & Katyal on Property Outlaws Eduardo M. Penalver and Sonia Katyal (Fordham University School of Law and Fordham University School of Law) have posted Property Outlaws on SSRN. Here is the abstract:
Call for Papers: Joint Session 2006
Monday, January 16, 2006
Legal Theory Calendar Assistance If you have a workshop series, one-time event, or something else that you believe is appropriate for the calendar, you can send me an email to: lsolum@gmail.com. It would be an enormous help if you used the following format for the subject line: "Legal Theory Calendar YYYY-MM-DD" with the date of the event filled in. I would especially appreciate links to web pages that list the workshop or colloquium calendars. I check about 30-40 or these each week, but I must be missing several (or even dozens!). Thanks! Weekend Update On Saturday, the Download of the Week was Religion, Division, and the First Amendment by Rick Garnett, and the Legal Theory Bookworm recommended Improving Healthcare: A Dose of Competition edited by by David Hyman. On Sunday, the Legal Theory Lexicon entry was Intention, and the Legal Theory Calendar listed this weeks workshops and other events. Monday Calendar Only one event today, because of the MLK holiday in the United States and start of term time in the UK.
Kitrosser on Secrecy and Separated Powers Heidi Kitrosser (University of Minnesota - Twin Cities - School of Law) has posted Secrecy and Separated Powers: Executive Privilege Revisited on SSRN. Here is the abstract:
Sherwin Demystifies Legal Reasoning Emily L. Sherwin (Cornell University - School of Law) has posted Demystifying Legal Reasoning: Part I (Demystifying Legal Reasoning, Forthcoming) on SSRN. Here is the abstract:
Proulx on the Jurisdiction of the International Criminal Court Vincent-Joël Proulx (New York University) has posted Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity? (American University International Law Review, Vol. 19, No. 5, pp. 1009-1089, 2004) on SSRN. Here is the abstract:
Conference Announcement: Historical Reflections on Human Nature at Boulder
Fulbright Distinguished Chairs
Sunday, January 15, 2006
Legal Theory Calendar
Northwestern Constitutional Theory: Kent Greenawalt, Affiliated Professor of Law, Columbia University, "Religion and Fairness, Vol. II: Establishment"
NYU Legal History: Tamar Herzog, Professor, Stanford University, History Dept., “‘Us’ and ‘Them’ in the Early Modern Spanish Atlantic World” UCLA Legal History Workshop: Amalia D. Kessler, Stanford School of Law, "From Public Hazard to Social Good: The Parisian Merchant Court and the Rise of a New Conception of Commerce"
Boston College Criminal Law Roundtable: Carol Steiker, Harvard Law School, "No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, And The Death Penalty" UC Berkeley, Kadish Center: Meier Dan-Cohen, REVISING THE PAST:ON THE METAPHYSICS OF REPENTANCE, FORGIVENESS, AND PARDON. Dan-Cohen's work is always interesting! Boston University Law: Jack Beerman, The Supreme Common Law Court of the United States University of North Dakota, Indian Law: Angela R. Riley, "Sovereignty and Il/liberalism" University of Michigan Law & Economics: Bronwyn Hall, UC-Berkeley, Intellectual Property Strategy in the Global Cosmetics Industry. Florida State Law: Nancy Staudt, Washington University School of Law. Fordham Law: Ronald J. Mann, University of Texas School of Law, "Contracting for Credit" Ohio State Criminal Law: Tracy Thomas, Akron (summary here) UCLA Tax Policy: Beth Garrett, USC Law School, Report of the Advisory Panel on Federal Tax Reform. UCLA Politics and International Law Colloquium: Beth Simmons, Department of Government, Harvard University, "International Human Rights: Law, Politics, and Accountability" University College, London, Faculty of Law: David Ormerod (University of Leeds), ‘Making Sense of Statutory Conspiracies’
Oxford Centre for Competition Law & Policy: Simon Priddis, Senior Director for Competition Casework , OFT, The Law and Economics of Conglomerate Mergers. Syracuse, Sawyer Law and Politics Program: Amanda DiPaolo, Maxwell School, "All Laws But One: The American Civil War and the Writ of Habeas Corpus", Discussant Jason Plume, Maxwell School. University of Texas Law: John Robertson, Embryo Culture and the 'Culture of Life': Constitutional Issues in the Embryonic Stem Cell Debate Legal Theory Lexicon: Intention
A Note on Terminology Legal theory is most concerned with "intentions" of the ordinary sort: "The defendant intended to kill" or "The Framers intended 'commerce' to exclude 'agriculture' in the commerce clause."--uses like these involve the ordinary legal use of "intention." There are, however, two related philosophical concepts that might be confused with this sense of intention. Philosophers use the word "intentionality" to refer to the ability of mental states to represent things, properties and states of affairs: in this special sense, all mental states are intentional. And philosophers also have a more technical concept of "intensionality"--spelled with an "s" rather than a "t" after the second "n"--that is used to refer to an important logical feature of words and sentences. A sentence is an intensional context if its truth value is sensitive to the substitution of referentially equivalent descriptions: don't worry, the jargon will be explained!. Ordinary intentions exhibit intentionality, intention sentences are intensional--hence the potential for confusion. Actions Are Intended Under a Description Jane hears a knock on the door and sees someone in the uniform of a package delivery company with a package. She invites the person in. She does not know that the person she has invited into her home is "the Westside rapist"--a serial rapist who disguises himself as a delivery person. If we ask her, did you intend to let "him" in, her answer will depend on the description we give. Did you intend to let the man in the delivery uniform in? Her answer will be "Yes." Did you intend to let the Westside rapist in? Her answer will be "No." The lesson of this example is that actions are intentional under a description. The very same individual was both "the man in the delivery uniform" and "the Westside rapist," but Jane's intentions were not the same with respect to the two different descriptions. Transparent and Opaque Contexts Actions are intentional under a description. Because of that fact, philosophers say that intention is a referentially opaque context. Boy, that is mouthful. What does that mean? Let's take a context that does not involve intentionality. The sentence "The Westside rapist entered Jane's house" does not involve an attribution of an intention. And we can substitute a different description for "Westside rapist" without affecting the truth value of the statement. Assuming that the Westside rapist did enter Jane's house and that his name was Norman Heathcliff, then all of the following statements would be true:
Now, let's go back to intention. Suppose that Jane lets the man into her house, but does not know that he is the Westside rapist or that he is named "Norman Heathcliff." Truth value now will vary depending on how the man is described :
The distinction between opaque and transparent contexts is fundamental to the philosophy of language, and this distinction figures prominently in philosophical writing about "intention." This may all sound a bit abstract, but this distinction is worth mastering. If you don't know it, you will not be able to follow any really sophisticated discussion about intention. What difference does the distinction between referentially transparent and opaque contexts make to the law? That's a big question, but here is one example. Some theories of constitutional or statutory interpretation assert that questions about the applicability of a legal rule can be settled by reference to the intentions of the authors of the statute. One line of attack on this view focuses on the question whether a collective body (e.g. a legislature or constitutional convention) has intentions in the same sense as does an individual. Putting that objection to the side, the distinction between opaque and transparent contexts can be used to build a different sort of objection. Suppose that we have only one legislator, Rex, and that Rex enacts a legal rule. Now a judge, Solomon, must apply the rule in a case where the meaning of the rule is either vague or ambiguous. Can Solomon simply apply the rule as Rex would intend? In some cases, the answer to this question may be "yes," but not in all. Why not? Because Rex may have intended the rule to apply to the case under some descriptions of the case, but not under others. Boy, that's abstract. Can you make your point more concrete? Consider this example. The same Congress that enacted the 14th Amendment's equal protection clause also segregated the schools of the District of Columbia. Suppose that this Congress had the following two intentions: (1) Congress intended that the equal protection clause should prohibit discrimination on the basis of race, and (2) Congress intended that the equal protection clause should not prohibit segregation of the public schools. Now suppose that we believe a third thing: segregation of the public schools is discrimination on the basis of race. Given this situation, the "intentions of Congress" cannot directly settle a particular case, e.g. Brown v. Board of Education. Under one description, Congress would intend that the case should be decided for Brown; under another description, Congress would intend that the case should be decided for the Board. Both descriptions are true of the case. Of course, I haven't developed this objection or the possible responses in a deep or thorough way. There is lots more to say. But the point is this. Legal rules are the product of intentional actions. Like all actions, lawmaking is intentional under a description. This means that statements about legislative intentions are referentially opaque. But when we apply a legal rule to a fact situation, we can describe the facts in many different ways. (A vast number of descriptions can refer to any particular legal dispute.) If intentions are to be used to as the basis for interpreting legal rules, it cannot be on the basis of a theory that says only, "Decide the case as the intentions of the lawmaker require." More will be required to make such a theory work. Intention and Foreseeable Consequences Does "intending an action" make a difference to either moral or legal responsibility? The distinction between intentional and unintentional action certainly seems to be important to both tort law and criminal law. Tort law differentiates between intentional torts and torts based on negligence or strict liability. Criminal law involves what is called mens rea or the "mental state" that is an element of the crime. In ordinary morality, we differentiate between intentional infliction of harm as more culpable than mere negligence. Most law students encounter the problem of foreseeable but unintended consequences in both criminal law and torts. Consider the following examples:
--Example Two: Carlos plants a bomb under the bridge. He wants to destroy the bridge, but he also knows that when he triggers the bomb Dawn is on the bridge right over the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some miracle Dawn would live. --Example Three: Edgar is holding Francis and Gertrude captive. When Edgar's demands aren't met, he executes Francis. Edgar regrets that he had to do this, but he believes this is the only way that he will be able to intimidate Francis and Gertrude's employer into paying a ransom for Francis. --Example Four: Harry shoots in the air on New Year's Eve. The bullet goes up and comes down, killing Ingrid. Harry did not intend to kill anyone, but he did recognize that there was a small risk that his bullet might strike and injure or kill.
In example two, Carlos intended to blow up the bridge and Dawn's death was a foreseen and very likely consequence of this intentional act, but Carlos did not directly intend to kill Dawn. In example three, Edgar intended to kill Francis, but her death was a means to a further end--payment of the ransom. In example four, Harry did not intend to kill Ingrid, but his intentional act foreseeably resulted in her death. Trolley Problems In all four cases described above, the action that results in death is clearly wrongful. But that is not so clear in the famous "Trolley Problem." Here is a statement of the problem:
Our discussion of the Trolley Problem has been very brief and superficial. For more, you can follow this link. For our purposes, the point of the trolley problem is to suggest that intention is potentially important to questions of culpability. Conclusion Every legal theorist needs a basic mastery of "intention." But this is a very deep topic. If you are drawn to the theory of criminal law or the theory of torts or to constitutional theory or statutory interpretation, you will want to know more about "intent." Hopefully, this entry will get you started. Saturday, January 14, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Improving Healthcare: A Dose of Competition, edited by by David Hyman. Here's a blurb:
Download of the Week The Download of the Week is Religion, Division, and the First Amendment by Rick Garnett. Here is the abstract:
And while I'm at, there were several fabulous papers this week, check out:
What a Strange Place to Put a Church: The Political Economy of 'Just Compensation' by Nicole Garnett, and The Economics of Federalism by Larry Ribstein. Friday, January 13, 2006
Sherwin on Moral Anxiety About Good Property Rights Emily L. Sherwin (Cornell University - School of Law) has posted Three Reasons Why Even Good Property Rights Cause Moral Anxiety on SSRN. Here is the abstract:
Garnett on the Political Economy of Just Compensation Nicole Stelle Garnett (Notre Dame Law School) has posted What a Strange Place to Put a Church: The Political Economy of 'Just Compensation' on SSRN. Here is the abstract:
Ribstein on the Economics of Federalism Larry Ribstein (Illinois) has posted The Economics of Federalism on SSRN. Here is the abstract:
Hanson & Benforado on Supreme Court Drift Jon D. Hanson and Adam Benforado have a new piece entitled The Drifters: Why the Supreme Court makes justices more liberal at Boston Review. Here's a taste:
Thursday, January 12, 2006
Thursday Calendar The Legal Theory Calendar will be back in full swing next week, but in the meantime, here are two events today:
NYU Colloquium on Tax Policy and Public Finance: Daniel Shaviro, Households and the Fiscal System. Northwestern Tax Policy Colloquium: Gregg Polsky (Minnesota) & Ethan Yale (Georgetown), Reforming the Taxation of Deferred Compensation. Rodriguez & McCubbins on PPT, Law, and the Judiciary Daniel B. Rodriguez and Mathew D. McCubbins (University of San Diego School of Law and University of California at San Diego) have posted The Judiciary and the Role of Law: A Positive Political Theory Perspective (HANDBOOK ON POLITICAL ECONOMY, B. Weingast & D. Wittman, eds., Oxford University Press, 2006) on SSRN. Here is the abstract:
Conference Announcement: Portugese Society for Analytic Philosophy at Lisbon
Wednesday, January 11, 2006
New York Times on Blogger Reaction to Alito Check out Blogger Reaction to the Alito Hearings, with links to Howard Bashman, Rick Hasen, Orin Kerr, Steve Bainbridge, and others. Conference Announcement: MLEA 2006 at Kansas This year's meeting of the Midwestern Law & Economics Association will be held at the University of Kansas School of Law on October 20 & 21, 2006. More on Blogging and Scholarship Following my post of Monday, Blogging, Legal Scholarship, and Academic Careers, Doug Berman (of the excellent Sentencing Law and Policy blog) offers the following anecdote:
2. On Thursday afternoon, Jan 5, I did a long post critical of Pho. 3. On Monday, Jan. 9, a district court in Florda issued a long opinion citing my critique of Pho (in footnote 17): http://sentencing.typepad.com/sentencing_law_and_policy/2006/01/remarkable_new_.html Garnett on Religious Division Richard Garnett (Notre Dame) has posted Religion, Division, and the First Amendment on SSRN. Here is the abstract:
Tuesday, January 10, 2006
New from Tulane Congratulations to the Tulane Law Review for Volume 80, Issue Number 1:
Memorial to Luther Love McDougal III by Mark McDougal In Memoriam - Luther L. McDougal III by Martin L.C. Feldman A Colleague's Memorial to Luther L. McDougal III by M. David Gelfand The Judge as Comparatist by Sir Basil Markesinis & Jörg Fedtke Constitutional Comparativism in South Africa: A Response to Sir Basil Markesinis and Jörg Fedtke by Laurie W.H. Ackermann Response to The Judge as Comparatist: Comparison in Public Law by Aharon Barak The Constitutional Judge and the International Constitutionalist Dialogue by Brun-Otto Bryde La pratique du droit compare par les cours supremes Breves reflexions sur le dialogue des juges dans les experiences française et europeenne: en commentaire de l'article de Sir Basil Markesinis et Jörg Fedtke Le juge en tant que comparatiste by Guy Canivet Comparative Law in Constitutional Adjudication: The South African Experience by Sir Sydney Kentridge The European Judge as Comparatist by Christos L. Rozakis A Response to The Judge as Comparatist by Konrad Schiemann Comment: Multistate Class Actions Properly Frustrated by Choice-of-Law Complexities: The Role of Parallel Litigation in the Courts by Jeremy T. Grabill Book Review: Comparative Law in the Courtroom and Classroom: The Story of the Last Thirty-Five Years. By Sir Basil Markesinis, reviewed by James Gordley Thanks to Paul Caron for the link! Public Awareness of the Supreme Court Check out FindLaw's US Supreme Court Awareness Survey. Here's a taste:
Alito on Precedent & Super (Duper) Precedent I'm listening to the Alito hearings as Senator Specter asks Judge Alito about the doctrine of stare decisis. Alito says, "it is not an inexorable demand but it is a general presumption." Of course, that is a fairly common view of stare decisis--that it is a presumption, which as Alito puts it, "can be overcome by a special justification." Framed in that way, of course, we really have no idea what Alito's view of precedent really is. Everything would depend on what makes a justification "special." The realist view of precedent is that this is an instrumental question--through and through. Specter's follow-up questioning of Alito focused on Casey, Miranda, and the concept of the reliance interest in stare decisis. Of course, this is still quite vague, but the focus on reliance suggests that both Specter and Alito see stare decisis as a prudential judgment--about the costs and benefits of following precedent and not as a doctrine that binds the Supreme Court. Specter is now asking Alito about the concept of "super precedent" or "super stare decisis. Alito says that he would not use the label "super," but he says that when a precedent is reaffirmed, it strengthens the precedent. Reaffirmance "should be taken into account." And he agrees that there are "precednets on precedents." Stare decisis is " a judgment that has to be made taking into account all the factors." This exchange is, of course, not unexpected. Specter is trying to get Alito to commit to Casey and Roe. Alito is trying to avoid commitment. But something of jurisprudential interest is occuring underneath the exchange. The concept of "super precedent" is really an attempt to return to an older and more formalist conception of stare decisis. Of course, this "old fashioned" approach is very much alive today in the doctrines of "vertical stare decisis--the binding effect of precedents on lower courts and the doctrine of "horizontal stare decisis" in intermeidate courts of appeal. (In the 3rd Circuit, for example, each panel considers circuit precedent "binding" and not simply a "presumption" that can be overcome by balancing "all the factors." In other words, the idea of "super precedent" is an attempt to revive the notion of "binding stare decisis" within a realist/instrumentalist framework that denies that Supreme Court precedent should ever truly be binding. Conference Announcement: Federalism Past & Future at St. John's
10:05 Opening lecture, Akhil Reed Amar, Southmayd Professor of Law, Yale Law School 10:45 Panel I: Federalism Past: The Current State of the “Revolution”
John Q. Barrett, Professor, St. John’s University School of Law & Elizabeth S. Lenna Fellow, Robert H. Jackson Center Neal Devins, Goodrich Professor of Law, Professor of Government & Director, Institute of Bill of Rights Law, College of William & Mary, Marshall-Wythe School of Law Barbara D. Underwood, Counsel to the United States Attorney, Eastern District of New York; formerly both Principal Deputy Solicitor General of the United States and Acting Solicitor General of the United States 1:30 Panel II: Federalism Future: the prospects for future revolutions
Stephen M. Griffin, Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School William W. Van Alstyne, Lee Professor of Law, College of William & Mary, Marshall-Wythe School of Law Timothy Zick, Associate Professor, St. John’s University School of Law Monday, January 09, 2006
Weekend Update On Saturday, the Download of the Week was Suzanna Sherry's Politics and Judgment and the Legal Theory Bookworm recommended The Place of Families: Fostering Capacity, Equality, and Responsibility by Linda C. McClain. Sunday's Legal Theory Lexicon was on Speech Acts. Unable to Resist Temptation As the Chair of the Constitutional Law Section of the Association of American Law Schools, I was the organizer and moderator of a session entitled "The Constitution in Exile" featuring a discussion with Randy Barnett, Cass Sunstein, and several distinguished members of the audience. Please accept my apologies for being unable to resist the temptation to quote from Sunstein and Barnett at AALS posted by Kaimi Wenger on Concurring Opinions:
Thank you Kaimi! And thanks to Barnett & Sunstein for agreeing to participate! Blogging, Legal Scholarship, and Academic Careers
Blogging and Legal Scholarship
Blogging Is Part of a Larger Set of Interrelated Phenomena One more thing. It is a mistake to look at blogging in isolation. The "blog" or "weblog" are just the tip of the iceberg or of several iceberts. Weblogs are simply ways of using the "World Wide Web" and the Web is just one way of using the Internet to transform scholarship and the academy. And blogs are significant in part because they are "defacto" open source publications--that is, bloggers allow their material to be quoted in whole or part and to be republished via RSS feeds. The "blog" itself may be replaced in a few years (or even months), but it represents larger and more enduring trends. Seven reasons that the internet may be important to legal scholarship Here they are:
The Open Source Revolution Blogs are part of and related to another significant trend in the dissemination of legal scholarship--what we might call the "open source" revolution, by way of analogy with "open source" software. The "old" legal scholarship was copyrighted--usually with the copyright held by law journals and academic or legal presses. The "new" legal scholarship may be copyrighted, but increasingly legal scholars are demanding that their publications be available for free downloading and duplication. Almost everything I publish now includes the following "copyright notice":
Google & Full Text Searching And one of the "other important phenomena" is the interrelationship between googleing, full-text searchability, free-downloads, and the blogs. Anyone who runs a blog can testify to the importance of Google to readership. But this points to something else--the importance of Google and full-text searching to new modes of academic research. Ask anyone under 25 how they do research. Frankly, I'd be surprised if there were more than a tiny fraction of frank answers that failed to include Google. I suspect that that a very substantial percentage of young researchers start and end their systematic search for "starting points"--the articles that yield the further sources that then complete the research process--with Google and Google alone. Disintermediation The dissemination of legal scholarship has traditional been dominated by intermediatires--institutions that stand between the author and audience. Blogs, Google, SSRN & BE Press, are all part of a process of disintermediation. What does that mean? To understand "disintermediation," we need to take a look back at the "old intermediary institutions," which can be further divided into two categories, the "old-old intermediaries" and the "new-old intermediaries." The old-old intermediaries were student-edited law journals (like the Harvard Law Review or the Yale Law Journal) and legal presses (like West and Matthew-Bender). If you wanted to disseminate anything other than a treatise, you sent off a manuscript to a buch of student-edited law journals. Sooner or later, some journal would accept your article and then several months to several years later, it would come out in pring. (Several years is a bit of an exaggeration, but the delay between acceptance and publication could easily be more than two years given the vagaries of student editorial boards.) Of course, venue mattered. Publication in the Harvard Law Review guaranteed a wide audience. Publication in the East-West Overshoe Law Journal almost (but not quite) guaranteed a narrow audience. Over the course of the past two decades, the old-old intermediaries have increasingly been supplemented and even sometimes displaced by the new-old intermediaries: the peer-reviewed journals and academic presses. The emergence of the new-old intermediaries has gone hand and hand with the trend towards "interdisciplinarity" in legal scholarship. That is, as law and economics, law and philosophy, law and history, law and psychology, law and political science, and other "law and" approaches have become more important in the legal academy, legal scholarship has increasing turned towards the venues of (or modeled on) other disciplines. There is an irony about the turn towards academic presses and peer-reviewed journals. By and large, publication in a peer-reviewed journal or academic press tends to work against open-source legal scholarship. Academic presses also tend to be the back-end publishers of peer-reviewed journals. And academic presses are under tremendous pressure to break even or show a "profit," even if they are formally subsidiary to a nonprofit insitution such as a university. Since copyrights in scholarship are the only assets that academic presses own, it is hardly surprising that most academic presses are unwilling to give scholarship away for free. Hence, an article pubished in a peer-reviewed journal is less likely to be available for free downloading on SSRN or BE Press than an article published by a student-edited law review. And that means that an article published in a peer-reviewed journal may be less likely to be the subject of a blog post. Lifting the Cone of Silence You remember the cone of silence! From "Get Smart!" One of the complaints about the legal academy is that legal academics operate as if they were within a virtual cone of silence--able to talk only to each other and inaudible to the outside world. We might call this phenomenon, the "acoustic isolation of the legal academy." Blogs, open-source, and Google all operate to lift the cone of silence and make the ideas advanced by legal academics available to a larger world. Every prominent academic blogger has personal experience of this phenomenon. I get email from high-school students, undergraduates, lawyers, judges, stay-at-home dads and moms, investment bankers, retired generals, and importantly journalists. Blogs and google make scholarship available at lower cost and through somewhat random processes. Globalization Just as blogs disseminate ideas beyond the academy, they also faciliate the international distribution of legal scholarship. In the past week, I've recieved emails from readers of Legal Theory Blog in India, the United Kingdom, China, and Romania. Over the past few years, I've heard from readers on every continent and from dozens (perhaps over a hundred) different nations. Of course, this is hardly a systematic study of the globalization of legal scholarship. But anecdotal evidence suggests that many other academic bloggers have similar evidence of the "globalizing" effect of the blogosphere. American law reviews and peer-edited scholarly journals are not globally available. That's because they are so expensive. Indeed, once you get past the most prominent law reviews and peer-edited journals, they are almost completely unavailable outside of North America and the wealthiest academic libraries of Europe, Oceana, and Asia. Just ask a second or third tier American law review how many foreign subscriptions they have. Or ask a peer-reviewed journal that specializes in "law and x" the same question. The point is that distribution of open-source legal scholarship by the Internet makes difference! As an aside, I've heard it argued that lifting disintermediation, penetration of the acoustic isolation of the legal academy, and the globalization of legal scholarhsip are trivial rather than significant phenomena. One such argument focuses on the idea that only a few specialists are capable of understanding, digesting, evaluating, and interacting with "high level legal scholarship"--the kind published by the best peer-reviewed journals and student-edited law reviews. Of course, there is something to that! The blogosophere may degrade the "signal to noise ratio" of feedback on legal scholarship. I suspect that Legal Theory Blog gets better than average email feedback. After all, it is called "Legal Theory Blog" and it contains an awful lot of purely academic content. Nonetheless, I do get some comments that require patience and good humor. On the other hand, I have been astonished by the thoughtful and genuinely informative comments and blog posts that have come from nonacademic sources. I'm proud to be an academic and I believe in the value of academic institutions. But I think it is both wrong and silly to think that credentials matter more than content. Changing the Marketplace of Ideas Blogs, the Internet, and open-source legal scholarship have all worked together to change the marketplace of ideas, much as eBay has changed markets for collectables and used electronics. What makes eBay important is the transparency and relatively low transaction costs that it provides. The same thing is true for the emerging new electronic agora of ideas. Of course, blogs are not perfect. They can spread falsehoods as wells as truths. But they aggregate opinions and argument rapidly and accessibly. Bad ideas tend to die quickly in the blogosphere. Good ideas tend to spread rapidly--especially if they are embodied in appealing memes. The answer to these questions is undoubtedly "no." Not replace or displace. It is not the end of the world as we know it. But it is a change. If you are like me and I know that many readers of Legal Theory Blog are, then you probably read more papers for the first time on SSRN or BE Press than by getting the latest copy of the Yale Law Journal sent to your office (or by browsing it in the library). Of course, I still read lots of "published versions." Especially, if I am doing research for an article. But my impression of what is hot, current, and happening is shaped by the online world, not the paper world.
On the other hand, I am of the opinion that blogging can be a very interestng option for law students. Before blogging, there was really no way for a law student from School X to get to know professors from other law schools. But blogging does change that--especially thoughtful blogging that reacts to issues of concern to legal academics. This year's entry-level job market included a handful of candidates who I "know" from their student blogs--many of which had subsequently been discontinued after they became law clerks or entered practice. When I read their AALS forms as a member of the appointments committee, I read very carefully and (in most cases) with a favorable preconception. A Cautionary Note (with Special Salience for the Untenured) Let me try to be a bit more concrete about a potential downside of blogging. If you say something intemperate, ill-informed, or offensive on a blog, it may create a lasting negative impression. This is not speculation. I know of more than one academic blogger--both senior and junior--who has prompted multiple negative remarks. I think that I may hear such remarks more than most legal academics--because most everyone I meet in the business knows that I have a blog. In one case, more than a dozen faculty members at several different law schools have made negative comments about someone at an early career stage who would otherwise be invisible except through her or his scholarship. If you blog and you are developing a negative reputation, you may be "the last to know." Of course, there are some very prominent legal academics who blog and whose blogging has provoked some negative reaction; I doubt the negative reaction to the blogs of the already prominent is any worse or much different than the negative reaction to their other prominent academic doings. A Bit More on the Upside But there is also an upside. I also am familiar with several "juniorish" (untenured or recently tenured) legal academics who have gotten "ahead of the curve" through excellent blogging. The reasons are obvious. Really good blogging gets you readers that otherwise would come at a later stage in an academic career. Short Form and Long Form At the AALS session on Blogging, Randy Barnett made the point that blog entries tend to be short form and hence are no substitute for "long form" legal scholarship. On the one hand, I agree with Barnett about this. Most blogging is very much "short form" and hence is (usually) part of a different enterprise than long forml legal scholarship in the form of longer articles and books. But Barnett's point can be exaggerated. Blogging can be part of long-form scholarship in a variety of ways. Most obviously, blogging provides a forum for "trial baloons" that can be incorporated in larger projects. And blogs can, in fact, be a forum for long-form scholarship. For example, the Legal Theory Bookclub on Larry Lessig's last book Free Culture was published by the Texas Law Review. Another example of a longer piece is Water Wells and MP3 Files: The Economics of Intellectual Property, part of an exchange with Eugene Volokh. Another way in which blogging can interact with long-form scholarship stems from the fact that blogging allows criticism and really good criticism is invaluable. Jack Balkin's criticism of two posts (A Neoformalist Manifesto and Fear and Loathing in New Haven) served an important catalytic role in the development of my thinking about neoformalism as a legal theory. So while I agree with Barnett, the short form is no substitute for the long form, I would add that blogging can have an important role to play in long-form legal scholarship. Legislative Marvels Department CNET reports:
Pollack on a Feminist Theory of the Public Domain Malla Pollack (Univ. of Idaho, College of Law) has posted Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United States' Copyrightable and Patentable Subject Matter (William & Mary Jounral of Women and the Law, Vol. 12, No. 3, 2006) on SSRN. Here is the abstract:
Kang & Banaji on a Behavioral-Realist Revision of Affirmative Action Jerry Kang and Mazharin Banaji (University of California, Los Angeles - School of Law and Harvard University - Radcliffe Institute for Advanced Study) have posted Fair Measures: A Behavioral Realist Revision of 'Affirmative Action' (California Law Review, Forthcoming) on SSRN. Here is the abstract:
Davis & Chang on the Old & New Identity Wars Adrienne D. Davis and Robert S. Chang (University of North Carolina at Chapel Hill - School of Law and Loyola Law School (Los Angeles)) have posted The Adventure(s) of Blackness in Western Culture: An Epistolary Exchange on Old and New Identity Wars (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:
Sunday, January 08, 2006
Legal Theory Lexicon: Speech Acts
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory. Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value. O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values. Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions. Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance. Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions: A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish: Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle. Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action. Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed. If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below. Links Saturday, January 07, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends The Place of Families : Fostering Capacity, Equality, and Responsibility by Linda C. McClain. (Sample chapter here.) And here is a description:
Download of the Week The Download of the Week is Politics and Judgment by Suzanna Sherry. Here is the abstract:
Friday, January 06, 2006
Ohnesorge on Financial Crisis & the Rule of Law in Asia John K.M. Ohnesorge (University of Wisconsin Law School) has posted Asia's Legal Systems in the Wake of the Financial Crisis: Can the Rule of Law Carry Any of the Weight? on SSRN. Here is the abstract:
Guiora & Page on Theories of Judicial Activism Amos N. Guiora and Erin M. Page (Case Western Reserve University School of Law and Case Western Reserve University - School of Law) have posted Going Toe to Toe: President Barak's and Chief Justice Rehnquist's Theories of Judicial Activism (Hastings International and Comparative Law Review, Vol. 29, No. 1, p. 51, 2006) on SSRN. Here is the abstract:
Edwards & Waverman on Public Ownership & Regulatory Independence Geoff A. Edwards and Leonard Waverman (Haas School of Business - Business & Public Policy Group and University of London - Department of Economics) have posted The Effects of Public Ownership and Regulatory Independence on Regulatory Outcomes: A Study of Interconnect Rates in EU Telecommunications on SSRN. Here is the abstract:
Thursday, January 05, 2006
Verkuil on the Duty to Govern Paul R. Verkuil (Cardozo Law School) has posted The Nondelegable Duty to Govern on SSRN. Here is the abstract:
Dubber on the Integration of American Criminal Law Markus Dirk Dubber (University at Buffalo - Law School) has posted The Integration of Substantive Criminal Law in the United States on SSRN. Here is the abstract:
Wednesday, January 04, 2006
Sherry on Politics & Judgment Suzanna Sherry (Vanderbilt University School of Law) has posted Politics and Judgment (Missouri Law Review, Vol. 70, 2005) on SSRN. Here is the abstract:
Perez & Teubner on Legal Pardoxes and Inconsistencies Oren Perez and Gunther Teubner (Bar-Ilan University, Faculty of Law and Goethe University Frankfurt - Law Area) have posted Paradoxes and Inconsistencies in the Law (PARADOXES AND INCONSISTENCIES IN THE LAW, Oren Perez and Gunther Teubner, eds., Hart Publishing, December 2005) on SSRN. Here is the abstract:
Mandel on Hindsight Bias and Obviousness Gregory N. Mandel (Albany Law School) has posted Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational on SSRN. Here is the abstract:
Cassidy on Grand Jury Independence Michael Cassidy (Boston College Law School) has posted Toward a More Independent Grand Jury: Recasting and Enforcing the Prosecutor's Duty to Disclose Exculpatory Evidence (Georgetown Journal of Legal Ethics, Vol. 13, pp. 361-403, 2000) on SSRN. Here is the abstract:
Breen & Scaperlanda on Stenberg v. Carhart John M. Breen and Michael Scaperlanda (Loyola University of Chicago - School of Law and University of Oklahoma - College of Law) have posted Never Get Out'a the Boat: Stenberg v. Carhart and the Future of American Law on SSRN. Here is the abstract:
Tuesday, January 03, 2006
Berman on Lesser Evils Mitchell N. Berman (University of Texas School of Law) has posted Lesser Evils and Justification: A Less Close Look (Law and Philosophy, Vol. 24, p. 681, 2005) on SSRN. Here is the abstract:
Jacobson on Authority, Derrida, & Quaintance Arthur J. Jacobson (Cardozo Law School) has posted Authority: An Hommage to Jacques Derrida and Mary Quaintance (Cardozo Law Review, Vol. 27, p. 791, 2005) on SSRN. Here is the abstract:
Dickinson on Public Law Values & Privatization Laura Dickinson (University of Connecticut - School of Law) has posted Public Law Values in a Privatized World (Yale Journal of International Law, 2006) on SSRN. Here is the abstract:
Book Announcement: Welfare & the Constitution by Barber
Monday, January 02, 2006
Weekend Update On Saturday, the Download of the Week was Contract as Statute by Stephen J. Choi and G. Mitu Gulati, highly recommended! And the Legal Theory Bookworm recommended the best translation of Hegel's Elements of the Philosophy of Right. Sunday's Legal Theory Lexicon entry was on Causation. Levy on Modus Vivendi Approaches to Constitutionalism Jacob Levy (Chicago, Political Science) has posted Contextualism, Constitutionalism, and Modus Vivendi Approaches on SSRN. Here is the abstract:
Welcome to the Blogosphere . . . . . . to Blackprof.com from Richard Banks, Paul Butler, Devon Carbado, Richard Delgado, Darren Hutchinson, Sherrilyn Ifill, Tracey Meares, Spencer Overton, Dorothy Roberts, and Adrien Wing. Call for Papers: The Social Sciences & Democracy
Book Announcement: Hutson on the Founders on Religion
Book Announcement: Skach on Constitutional Design
Conference Announcement: 6th East Asian Conference on Philosophy of Law
Sunday, January 01, 2006
Happy New Year My best wishes for flourishing and happiness in the New Year to all the readers of Legal Theory Blog! Legal Theory Lexicon: Causation
Cause-in-Fact & Legal Cause Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks! Cause-in-Fact What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause. Necessary and Sufficient Causes The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause." X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart. The Role of Counterfactuals The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim. What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation. Overdetermination Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben. Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause. The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation. Coincidence Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences. Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident. Legal Cause What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause. First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law. Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable. Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away. Probability Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post. Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y. Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events. Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:
--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1. Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation. Conclusion Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn. Bibliography
Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley. |
