Legal Theory Blog

All the theory that fits!


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

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Saturday, May 31, 2003
Blogging From Rutgers: Legal "Realism" Yesterday was the final day of the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson and Kim Ferzan. Colin McGinn was the speaker and his topic was realism. McGinn's position is that, pace Michael Dummett, there is no single sense in which realism is used in the various realist/antirealist philosophical debates. Rather, McGinn, suggests, that there are at least three senses of realism:
    --Realism as Reference. In the first sense, we say that realism is connected with reference. Hence, realist about mathematics is someone who says that mathematic objects or propositions refer to something. A moral realist is someone who believes that moral terms or propositions refer. And reference is understood here in a philosophical sense, as specified, for example by the way that Frege or Russell used the term "reference."
    --Realism as Objectivity. In a second sense, one is a realist about something if one believes that thing is "objective" as opposed to "subjective," where objective is understood as meaning independent of the mind. In this sense, one is a realist about the external world if one believes that mountains and stars exist independly of human minds.
    --Realism as Determinacy. In a third sense, one is a realist about a domain if one believes that propositions with the domain are determinant in the sense that they are either true or not true. (To simplify, true or false.) Thus "Hamlet has a mole on his left shoulder" is neither true nor false, because Shakespear never tells us whether Hamlet does or does not have such a mole--therefore, on the determinacy conception of realism, one would be an antirealist about Hamlet's mole.
We might then what about law? Is law real? Or are legal propositions such as "affirmative action violates the equal protection clause" real? Consider each of the three sense of realism:
    --Reference. Does the proposition Affirmative action violates the equal protection clause refer to anything? Or to simplify, does "The University of Michigan Law School's affirmative action program violate the equal protection clause" refer. There is a complex event to which the phrase "the University of Michigan Law School's affirmative action program" refers. On Frege's theory, the proposition will refer if it has a truth value. If Dworkin's right answer thesis is correct, then we might say that propositions like X violates the equal protection clause do have have truth values. If, on the other hand, we deny that legal questions have right answers, then we might conclude that such sentences do not refer, and hence that law is not real.
    --Objectivity. Is the question whether affirmative action violates equal protection mind independent? In one sense, obviously not. The equal protection caluse is a product of the human mind. On the other hand, we might say that given that humans have created the equal protection clause, it's meaning is independent of what we think about its meaning.
    --Determinacy. And of course, there is (or was) a raging jurisprudential debate over the determinacy of law. So those who hold that the law is indeterminate, are not realists in this sense.
And then we get the question, were the American legal realists "realists" in any sense that relates to other forms of philosophical realism. Once the question is framed this way, it seems that the "realists" were anti-realist in more than one sense. The American legal realists thought that legal concepts lacked referents--hence the famous claims of "transcendental nonsense." The legal realists sometimes claimed that the law was mind dependent--or in the case of Frank's famous aphorism about judges and breakfast, stomach dependent. And the legal realists were famous for their claims about the indeterminacy of law. McGinn was marverlous.

Friday, May 30, 2003
New Papers on the Net Here is the roundup:
    Roderick Hills (Michigan) uploads Against Preemption: How Federalism Can Improve the National Legislative Process. From the abstract:
      How easily should courts infer that federal statutes preempt state law? An ongoing debate exists on the question in Congress and among scholars and judges. One side calls for judges to protect federalism by adopting a rule of statutory construction that would bar preemption absent a clear statement of preemptive intent. Opponents argue against such a "clear statement" rule by arguing that state control over preemptable topics is often presumptively inefficient, because common-law juries lack expertise and because states are prone to imposing external costs on their neighbors.
      This article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution and instead concentrating on constituency service. Non-federal politicians can disrupt this tendency to ignore or suppress political controversy, by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress' agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress' agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote more highly visible, vigorous style of public debate in Congress.
    A. Mitchell Polinsky (Stanford) and Daniel Rubinfeld (UC Berkeley) post two papers:
      A Note on Settlements under the Contingent Fee Method of Compensating Lawyers. From the abstract:
        It is commonly thought that a lawyer working under a contingent fee arrangement has an excessive motive - relative to his client's interest - to settle the case, leading to a lower-than-desirable settlement amount and a high settlement rate. The conventional analysis that generates this conclusion omits an important consideration - that if the case were to go to trial, the lawyer would spend an inadequate amount of time on it. We demonstrate that once this effect is taken into account, the lawyer could have an insufficient motive to settle, the opposite of what is usually believed. Specifically, the lawyer's settlement demand could be too high and the resulting settlement rate too low.
      Aligning the Interests of Lawyers and Clients. From the abstract:
        The potential conflict of interest between lawyers and clients is well known. If a lawyer is paid for his time regardless of the outcome of the case, the lawyer may wish to bring the case even when it is not in the best interest of the client, may spend more hours working on the case than the client would want, and may reject a settlement when the client would be better off if it were accepted. Alternatively, if the lawyer is compensated according to the conventional contingent fee arrangement - under which he is paid a fraction of any trial award or settlement but bears all of the cost of litigation - the lawyer may have an insufficient incentive to bring the case, may spend too little time working on it if it is brought, and may encourage a settlement when the client would be better off going to trial. In this article we propose a method of compensating lawyers that overcomes the conflict of interest between the lawyer and the client. Our system is a variation of the conventional contingent fee system, but, in contrast to that system, we would have the lawyer bear only a fraction of the cost of litigation - the same fraction that the lawyer obtains of the award or settlement. We demonstrate that when the fraction of the cost that the lawyer bears equals the fraction of the award or settlement that he obtains, he will have an incentive to do exactly what a knowledgeable client would want him to do with respect to accepting the case, spending time on the case, and settling the case. Under our modified contingent fee system, a third party would compensate the lawyer for a certain fraction of his costs, in return for which the lawyer would pay that party an up-front fee. In this way, the client would not bear any costs, even if the case is lost, just as under the conventional contingent fee system.
    Anthony Sebok offers The Fall and Rise of Blame in American Tort Law, forthcoming in the Brooklyn Law Review. From the abstract:
      It is well known that Legal Realists were skeptical of "transcendental nonsense" in all its forms. In torts, this meant a realist-led revolution against defining terms such as "proximate causation," "duty" and "fault" in terms of conceptualist language. The attack on fault was led by Fleming James and Albert Ehrenzweig, who viewed the term as a dangerous mystification of important policy questions. James, in particular, felt that an immature attachment to a moralized concept of fault impeded the adoption of strict liability, since it provided defenders of the status quo with a moral argument against cost-spreading. In the post-war era, many tort doctrines changed in response to the realists' effort to promote cost-spreading through tort liability. In this essay I argue that although the doctrinal recommendations of realists such as James were adopted by progressive torts scholars and lawyers, his philosophical rejection of fault was not. Today, modern progressive tort law is filled with the language of blame. The resistance to no-fault auto insurance on the part of consumer groups is often explained by a need to hold faulty parties accountable. Similarly, the critique of the “tort reform” movement is often couched in terms of the need to hold wrongdoers—such as doctors who commit malpractice—accountable for their blameworthy conduct. This essay explores the irony that the world that the realists helped create seems to have rejected utterly their rejection of blame. This essay is part of the symposium "Responsibility & Blame: Psychological and Legal Perspectives," published in Volume 68 of the Brooklyn Law Review.

Leiter on the Hermeneutics of Suspicion Today at Oxford, Brian Leiter (Texas, Law & Philosophy) presents The Hermeneutics of Suspicion.

Thursday, May 29, 2003
Balkin on Hibbs Jack Balkin has a very good post on Nevada Department of Human Resources v. Hibbs, the Supreme Court's most recent 11th Amendment decision in which O'Connor & Rehnquist both joined the liberal/moderate wing of the Court.

Hasen on a Truce in the Confirmation Wars Check out Rick Hasen here critiquing my most entitled Confirmation Wars: Transformational Moves.

New Papers on the Net Here is the roundup:
    F. Gregory Lastowka (Dechert LLP) and Dan Hunter (University of Pennsylvania, Legal Studies) upload The Laws of the Virtual Worlds, forthcoming in the California Law Review. Here is the abstract of this very interesting paper
      What if you could check out of your world, and enter a place where the social environment was different, where real world laws didn't apply, and where the political system could be anything you wanted it to be? What if you could socialize there with family and friends, build your own palace, go skiing, and even hold down a job there? And what if there wasn't one alternate world, there were hundreds, and what if millions of people checked out of Earth and went there every day? Virtual worlds - online worlds where millions of people come to interact, play, and socialize - are a new type of social order. In this Article, we examine the implications of virtual worlds for our understanding of law, and demonstrate how law affects the interests of those within the world. After providing an extensive primer on virtual worlds, including their history and function, we examine two fundamental issues in detail. First, we focus on property, and ask whether it is possible to say that virtual world users have real world property interests in virtual objects. Adopting economic accounts that demonstrate the real world value of these objects and the exchange mechanisms for trading these objects, we show that, descriptively, these types of objects are indistinguishable from real world property interests. Further, the normative justifications for property interests in the real world apply - sometimes more strongly - in the virtual worlds. Second, we discuss whether avatars have enforceable legal and moral rights. Avatars, the user-controlled entities that interact with virtual worlds, are a persistent extension of their human users, and users identify with them so closely that the human-avatar being can be thought of as a cyborg. We examine the issue of cyborg rights within virtual worlds and whether they may have real world significance. The issues of virtual property and avatar rights constitute legal challenges for our online future. Though virtual worlds may be games now, they are rapidly becoming as significant as real-world places where people interact, shop, sell, and work. As society and law begin to develop within virtual worlds, we need to have a better understanding of the interaction of the laws of the virtual worlds with the law of this world.
    Devon Carbado (UCLA) and Gaurang Gulati (Georgetown) offer The Law and Economics of Critical Race Theory, forthcoming in the Yale Law Journal. Here is the abstract:
      Legal academics often perceive law and economics (L&E) and critical race theory (CRT) as oppositional discourses. Using a recently published collection of essays on CRT as a starting point, we argue that the understanding of workplace discrimination can be furthered through a collaboration between L&E and CRT. L&E's strength is in its attention to incentives and norms, specifically its concern with explicating how norms incentivize behavior. Its limitation is that it treats race as exogenous and static. Thus, the literature fails to consider how institutional norms affect, and are affected by, race. To put the point another way, L&E does not discuss how norms incentivize racial behavior, obscuring that how people present their race (or themselves as racial subjects) is a function of norms. The strength of CRT is its conception of race as a social construction. Under this view, race is neither biologically determined nor fixed. Instead, race is ever evolving as a function of social, political, legal, and economic pressures. A limitation of CRT is that much of its analysis of race as a social construction is macro-oriented. Thus, CRT has paid insufficient attention to the social construction of race within specific institutional settings, like the workplace. Further, CRT has virtually ignored the agency people of color exercise to shape how their racial identity is interpreted - that is say, constructed. Explicitly incorporating L&E's focus on incentives and norms into CRT provides CRT with a means by which to articulate the notion of race as a social construction at the level of individual "choice." The basic idea is that people of color construct (present racial impressions of) themselves in response to norms. Norms, in this sense, are racially productive, and individuals are part of the production apparatus. Having set out the basic elements of the collaborative enterprise, we deploy this collaboration to respond to a specific and important question about the workplace: How are modern employers and employees likely to "manage" workplace racial diversity? We raise this question because we assume that, for institutional legitimacy reasons, most workplaces will strive to achieve at least a modicum of racial diversity. The question, again, is: How will this diversity be managed? Part of the answer has to do with assimilation, an ideological technology for constructing race and a central theme in CRT; and part of the answer has to do with efficiency, an ideological technology for creating incentives and a central theme in L&E. Both ideas - assimilation and efficiency - combine to tell a story about workplace discrimination that derives from what we call "the homogeneity incentive." In sum, in order to increase efficiency, employers have incentives to screen prospective employees for homogeneity, and, in order to counter racial stereotypes, nonwhite employees have incentives to demonstrate a willingness and capacity to assimilate. In this sense, the modern workplace discrimination problem may be more about employers requiring people of color to demonstrate racial palatability than about employers totally excluding people of color for the workplace. We discuss whether and to what extent anti-discrimination law can ameliorate this problem.

Markel on Mercy I highly recommend Daniel Markel's paper, Against Mercy, forthcoming in the Minnesota Law Review. Here is an excerpt from the abstract:
    The standard trope in the literature on retributive theory is that mercy serves as an unwelcome interruption of the narrative between crime and punishment. Underlying this theme is the purportedly retributivist notion that the criminal law and its institutions should impose some form of divine or poetic justice for wrongdoing of all different kinds. On this view, the exercise of mercy works a simple failure of justice. But once retribution is better understood - not as revenge or retaliation but as a complex institutional practice arising from and enforcing liberal legal norms of democratic pedigree - its relationship to mercy requires reexamination. That reexamination reveals previously unanticipated problems about the difficulties associated with democratically authorized sites for mercy. The unsettling dimensions of this tension have not been sufficiently appreciated by previous retributivist critiques. Importantly, the retributivist case against mercy still endures - not because mercy is a failure of justice (qua just deserts), but because it is a failure of equality. This realization suggests robust and surprising implications for the responsible design of attractive criminal justice institutions.
Markel's paper is smart and has interesting implications. Get it while its hot.

Blogging from Rutgers: Norm Acquisition and Punishment This week I am attending the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson Kim Ferzan . Yesterday, the speaker was Stephen Stich and among the many topics he covered was norm acquisition. Stich's hypothesis is inspired by the fact that evolutionary models of cooperative solutions to iterated Prisoner's Dilemma games all involve punishment for defection from cooperation. In particular, Stich hypothesizes that humans have a mechanisms that internalizes norms backed by an effective punishment mechanisms. Stich's particularly vivid metaphor was Pac Man. Stich imagines that humans are lot Pac Man, racing around the social world. Whenever they see a punishment enforced norm, they swallow it, more or less willy nilly. Stich is a careful (if enthusiastic thinker), so he recognizes a number of obvious problems with this view. For example, if we make the reasonable assumption that norms are internalized by humans who never actually observed punishments, then the question arises: how (precisely) does punishment play a role in norm acquisition. Let’s assume that Stich is able to answer this question. His theory, if true, may have some interesting implications for legal theory. Here are some possible implications that might be explored:
    --Legal practices of punishment might play a role in norm creation. And this might have implications for theories of punishment. Most obviously, it might turn out to be the case that norm creation and not deterrence is the primary mechanism by which punishment influences behavior.
    --Various informal social sanctions may be important to norm creation, and the law may interact in various ways with such sanctions. For example, legal rules might prohibit or enable such sanctioning behaviors.
    --Some economic views of law assume that preferences are independent of legal rules, but Stich’s theory, if true, would show that this assumption is systematically false.
Fascinating session!

Duff A book by Antony Duff is something to be celebrated. His Punishment, Communication, and Community is new in paperback from Oxford University Press. From the abstract:
    Written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them.

Wednesday, May 28, 2003
New Papers on the Net Here is the roundup:

Confirmation Wars: Transformational Moves
    Proposals for a Truce The eminent political philosopher Sharon Lloyd recently suggested to me that the downward spiral of politicization that has characterized the judicial selection process can only be ended by a transformational move--a play in the game that would reestablish trust. Lloyd suggested that a new President might offer to the opposing party the right to submit a list of names from which the first several lower-court vacancies would be filled, asking in exchange that the remainder of the President's own nominees be confirmed. Stuart Taylor, Jr., offers another suggestion in a column for the National Journal entitled Judicial Selection Wars: How A Truce Could Be Fashioned. Here is Taylor's suggestion:
      The president should invite Senate Democrats to pull back from the brink. The best way to do that might be an informal compromise along these lines: Bush would promise to consult seriously with Democratic senators before making any judicial nomination, as the Constitution's "advice and consent" clause contemplates. In addition, in light of the Senate's slim Republican majority, he would pledge not to try to swing the Court's ideological balance by naming a strong conservative to replace any of the four liberal or two centrist justices who may retire during this Congress. These Bush pledges would be conditioned on a commitment by Democratic leaders to end their current filibusters and not to filibuster any other judicial nominees on ideological grounds as long as Bush keeps his part of the bargain. Bush could make the deal more palatable by giving a bit of ground to the Democrats who seek access to Miguel Estrada's internal memos from when he worked in the solicitor general's office. The logic of such a compromise would be a mutual recognition that filibustering a Supreme Court nominee would be a far more defensible tactic than filibustering a lower-court nominee. The reason is that -- especially when the justices are as closely divided as now -- one or two Supreme Court appointments could engineer dramatic changes in the law on big national issues including abortion, affirmative action, religion, campaign finance, and civil liberties. Arguably, the president should not be able to engineer such a change with a mere 51 votes in the Senate. The 800-odd judges on the lower federal courts, on the other hand, have far less latitude and are far more constrained by Supreme Court precedents.
    Lloyd and Taylor are looking for the move that will reverse the downward spiral of poltiicization. And one of their premises seems intuitively correct--the confirmation wars will not end without some transformative move that enables both Democrats and Republicans to back off from their current positions.
    The First Mover Problem But who will have the confidence to make the first move? There is a problem of trust and confidence that is difficult to solve given the way the judicial selection problem is currently framed. Suppose President Bush were to make the move that Taylor suggests and promise to nominate candidates who would preserve the ideological balance of the current Supreme Court. Would this be sufficient to restore mutual confidence? Imagine that the President does indeed consult with Senate Democrats on various possible nominees for a Supreme Court vacancy. Lurking in the background of such consultations will be the hot button issues that Taylor identifies (abortion, affirmative action, campaign finance, etc.). What if Rehnquist resigns? Will the Democrats agree to confirm an equally conservative nominee without a fight? Such a decision will not be popular with the Democratic base. Will Democrats trust President Bush to carry out his promise when (and if) Bush is given the chance to nominate a replacement for a more moderate Justice? This latter question is given additional urgency if we contemplate what it would mean to preserve the ideological balance of the Court in the event that Justice O'Connor were to resign. O'Connor is quite conservative on most issues, but moderate on a few, hot-button, issues. How could the Democrats trust any candidate who share O'Connor's general outlook to vote as O'Connor did in Casey to preserve the core of Roe v. Wade? Democrats will evaluate this issue with historical experience in mind--think Blackmun and Souter. But how could President Bush appoint any replacement for O'Connor who would inspire confidence by Democrats? Such a nominee would inevitably reject many of O'Connor's conservative beliefs and swing the balance of the Court to the left on many issues where O'Connor is the swing vote. No set of replacements for O'Connor and Rehnquist is likely to preserve the ideological balance of the Court. Justices are too unpredictable if they are not "extremists," or they are too "extreme" (either to the left or to the right) if their votes are predictable.
    The Fundamental Assumption Both Democrats and Republicans seem to share a fundamental assumption about the current confirmation war. That fundamental assumption is that judging is inherently political in nature. If we concieve of the judiciary as a third political branch of government, with the authority to use the powers of judicial review and constitutional and statutory interpretation to achieve a political agenda, then control of the judicial branch is the ultimate political prize. The reason that neither party can trust the other is that the stakes are too high. Because judges are elected for life terms, the power to appoint young, highly political judges who constitute a majority of the United States Supreme Court is roughly equivalent in importance to gaining an electoral lock on the Presidency and the Congress for a period of one or two decades. When the stakes are that high, then two conclusions follow. First, if one party believes it has the power to control the Supreme Court it will be loathe to forgo that opportunity voluntarily. Second, for the same reason, neither party can trust the other to reciprocate at the next changing of the guard.
    A Truly Radical Move A truly radical move is one that would call the fundamental assumption into question. That is, a truly radical move would be for either the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology. Such a move would not be pleasant for either party. Judges who are committed to the rule of law are likely to offend both Democrats and Republicans. For example, a judge who takes precedent seriously would be committed to both Hans v. Louisiana and Roe v. Wade, disappointing both the right and the left. But the point of nominating and confirming neoformalist judges is not ideological balance. The point of a radical move to restore the rule of law is that it offers both parties a principled basis for agreement. So long as we think of judges as politicians with life tenure, a truce in the confirmation wars will be difficult to negotiate.

Hooker on Fairness at Oxford Brad Hooker presents a lecture with the sparse title Fairness at Oxford today.

New from Oxford University Press Simon Chesterman new book Just War or Just Peace? Humanitarian Intervention and International Law is due from Oxford University Press.

Tuesday, May 27, 2003
Confrimation Wars Department: Lott Endorses Nuclear Option Marcia Oddi of the Indiana Law Blog brought a very interesting article in the Clarion-Ledger to my attention. Here is an excerpt:
    The GOP is in control this year, but the party lacks the 60 votes needed in the Senate to stop a Democratic filibuster of Pickering's nomination. Democratic filibusters have stalled nominations of two other conservative candidates for federal judgeships, Miguel Estrada and Patricia Owen. A rules change would require a two-thirds vote in the Senate, an unlikely occurrence. GOP leaders also are considering trying to change the filibuster rule from the chair of the Senate, which would require only a simple majority vote to approve if Democrats challenged the ruling. That tactic is known as the "nuclear option." Democrats have warned of "fallout" if Republicans resort to that maneuver. "I'm for the nuclear option, absolutely," Lott has said. "The filibuster of federal district and circuit judges cannot stand. ... It's bad for the institution. It's wrong. It's not supportable under the Constitution. And if they insist on persisting with these filibusters, I'm perfectly prepared to blow the place up. No problem."

Confirmation Wars Department: Bernstein on Pickering Nomination David Bernstein comments on the Pickering nomination here.

Blogging from Rutgers Today, I will blogging intermitently from the Seminar on Mind, Language, and Law organized by Dennis Patterson and Kimberly Ferzan at Rutgers. Today’s speaker is the distinguished philosopher Brian McLaughlin, from the Philosophy faculty at Rutgers.

New Alexy from Oxford Robert Alexy's The Argument from Injustice: A Reply to Legal Positivism has been published by Oxford. From the abstract:
    At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law.

Workshops Today Here is the roundup:
    At Florida State's summer series, Adam Hirsch does an internal workshop on Stale Wills.
    At Oxford, Caroline Shackleford presents Mediation of the horizontal application of the South African bill of rights - an instance of power-sharing.

Monday, May 26, 2003
Anderson on the Law of War Kenneth Anderson (American University) just posted Who Owns the Rules of War? The War in Iraq Demands a Rethinking of the International Rules of Conduct on SSRN. Here is the abstract:
    The war in Iraq requires a rethinking of the rules of conduct in war, international humanitarian law. The nature of assymetric warfare in the conflict has turned out to be less a question of technological disparities than the weaker side turning to systematic violations of the laws of war as its method. Over time, we risk creating an international system in which it is tacitly assumed and permitted that the weaker side fight using systematic violations of the law as its method. Part of this trend arises from the biases of 1977 Protocol I which blessed activities of irregular forces operating without uniforms and commingled with civilians. While the United States rejected this protocol partly because it objected to reductions in the level of civilian protection in the protocol, it was endorsed by most leading human rights organizations, seemingly out of a preference for internationalism rather than caring about the fundamental substantial issue of civilian protection. The trend of the last twenty years which has shifted "ownership" of the laws of war - the ability for shape and interpret them - from leading militaries to international NGOs has gone too far, and "ownership" of the laws of war and their meaning needs to shift partly back to the "state practices" of leading democratic sovereign states that actually fight wars.

New Papers on the Net Here is the roundup:
    Gabriel Chin (Cincinnati) posts Are Collateral Sanctions Premised on Conduct or Conviction? The Case of Abortion Doctors, forthcoming in the Fordham Urban Law Journal.
    Bruno Frey and Alois Stutzer (Zurich, Institute for Empirical Research in Economics) upload Testing Theories of Happiness. From the abstract:
      Happiness research in economics takes reported subjective well-being as a proxy measure for utility and has already provided many interesting insights about human well-being and its determinants. We argue that future research on happiness in economics has a lot of potential, but that it needs to be guided more by theory. We propose two ways to test theories of happiness, and illustrate them with two applications. First, reported subjective well-being can contribute towards a new understanding of utility in economics. Here, we study the introduction of income aspirations in individuals' utility functions in order to improve our understanding of how income affects individual well-being. Second, happiness data offers a new possibility of discriminating between different models of behavior. This is studied for theories of marriage, which crucially depend on auxiliary assumptions as to what contributes to well-being in marriage. Both applications are empirically tested with panel data for Germany.
    Bronwyn Hall (UC Berkeley), Stuart Graham (UC Berkeley, Business), Dietmar Harhoff (Munich) and David Mowery (UC Berkeley, Business) offer Prospects for Improving U.S. Patent Quality via Post-grant Opposition.
    Paula Cody and Kay Harrison (Government of New Zealand) post The Treaty Settlement Process in New Zealand.
    Douglas Kysar (Cornell) posts The Expectations of Consumers, forthcoming in the Columbia Law Review. From the abstract:
      In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. . . . [T]his article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decisionmaking. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decisionmaking. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically-rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.

Catching Up Department Princeton University Press recently published Law's Dream of a Common Knowledge by Mariana Valverde. From the abstract:
    If knowledge is power, then the power of law can be studied through the lens of knowledge. This book opens up a substantive new area of legal research--knowledge production--and presents a series of case studies showing that the hybridity and eclecticism of legal knowledge processes make it unfruitful to ask questions such as, "Is law becoming more dominated by science?" Mariana Valverde argues that legal decision making cannot be understood if one counterposes science and technology, on the one hand, to common knowledge and common sense on the other. The case studies of law's flexible collage of knowledges range from determinations of drunkenness made by liquor licensing inspectors and by police, through police testimony in "indecency" cases, to how judges define the "truth" of sexuality and the harm that obscenity poses to communities. Valverde emphasizes that the types of knowledge that circulate in such legal arenas consist of "facts," values, and codes from numerous incompatible sources that combine to produce interesting hybrids with wide-ranging legal and social effects. Drawing on Foucaultian and other analytical tools, she cogently demonstrates that different modes of knowledge, and hence various forms of power, coexist happily. Law's Dream of a Common Knowledge underlines the importance of analyzing dynamically how knowledge formation works. And it helps us to better understand the workings of power and resistance in a variety of contemporary contexts. It will interest scholars and students from disciplines including law, sociology, anthropology, history, and science-and-technology studies as well as those concerned with the particular issues raised by the case studies.

Sunday, May 25, 2003
Hasen on the Realpolitik of Filibustering Judicial Confirmation I posted earlier today on the strategic implications of a Republic move to change Rule 22 in order end the filibuster of Estrada and Owen. Perhaps my most important point is that Supreme Court vacancies change the political equation. Rick Hasen adds some very nice points here. Importantly, he notes, "The conventional thinking in the campaign finance world is that Rehnquist's vote is the key to upholding many features of the BCRA."

Sandefur on Judicial Civil Disobedience Tim Sandefur has a good post on Judge Pregerson and the competing claims of conscience and equity here.

Symposium Issue of Ethics on G.E. Moore The issue is available online, with papers by Christopher Heath Wellman, Stephen Darwall, Connie S. Rosati, Nicholas L. Sturgeon, Frank Jackson, Michael Smith, Thomas Hurka, Jonathan Dancy, and Donald H. Regan.

Filibuster Realpolitik
    Introduction Sarah A. Binder (GWU & Brookings) and Steven S. Smith (Washington University) have a thoughtful op/ed entitled Filibusters a great American tradition. They begin with a statement that seems exactly right to me:
      Today's stalemate over the confirmation process follows at least two decades of conflict over the president's choices for the lower federal bench, conflict that has been stoked in part by the growing polarization of the parties in Congress. The battles have escalated with the Democratic filibusters, but Democrats are not the first to obstruct judicial nominees. Controlling the Senate Judiciary Committee for much of the Clinton administration, Republicans blocked scores of judicial nominees by refusing to bring them up for a vote in the committee. And both parties have used anonymous "holds" and Judiciary Committee "blue slips" to prevent nominees from going forward in the past.
    This seems exactly right. The downward spiral of politicization that has resulted in the current confirmation wars has resulted from the actions of both parties--from Fortas through Haynsworth and Carswell, Bork, Thomas, Republican obstruction of Clinton nominees, right through today.
    The Senate's Constitutional Duty But they go on to state:
      Filibusters against nominees are constitutional. Some Republican senators have claimed that filibusters of nominees are unconstitutional because they prevent the Senate from fulfilling its obligations to advise and consent. In fact, and quite remarkably, the Constitution does not specify that a majority of any sort is required for confirmation, or even for passing laws. The Framers most likely had such a requirement in mind, but the Constitution does not address it. No reading of the Constitution can support the idea that filibusters are unconstitutional.
    This is a bit misleading. The Constitution imposes a duty on the Senate to give advice and consent to the President. Given that the duty exists, it follows that if the Senate were simply to ignore Presidential requests for advice and consent, then the Senate would not be fulfilling its constitutional obligation. Similarly, the Senate's obligation would not be fulfilled by a systemic decision to delay action on nominations until after the President leaves office. Given that there is a duty to give advice and consent, it follow inexorably that the Senate must fulfill the duty within a reasonable time. Indeed, President Washington believed that the President could demand advice and consent at any time, summoning the Senate to his home and acting as the chair of the Senate when it was in executive session as his privy council. Binder and Smith don't actually deny any of these well-known arguments. Instead, they focus on a different point--the question whether the Senate might specify a supermajority rule for advice and consent. And perhaps it could. But there is no such rule. The rules that enable the filibuster are not supermajority confirmation rules. They are rules that permit indefinite delay if the filibuster is supported by 41 members of the Senate. The constitutional issue is whether indefinite delay can be squared with the Senate's duty to provide advice and consents--and of course, it can't. Binder and Smith's argument is based on a fallacy of ambiguity. Once the fallacy is exposed, the argument simply collapses.
    The Realpolitik of the Filibuster Binder and Smith then go to provide a nice analysis of the political consequences of a Republican effort to change the filibuster by one of the parliamentary maneouvers that can circumvent Rule 22's requirement of 2/3rds vote to close debate on a rule change:
      Will we see such reforms in the Senate in the near future? Probably not. One rule about Senate rules is that they are difficult to change. Ending a filibuster on a resolution to change the rules requires a two-thirds majority. Consequently, no change in the rules is likely unless most senators believe the change will serve their interests. Absent pressure from the public and the president, minority party senators are unlikely to feel the heat necessary to support reform. The danger is that Republicans might resort to a back-door procedural scheme -- a bit of trickery known as "going nuclear" -- to prevent Democrats from filibustering nominees. This would only increase partisan rancor and will encourage Democrats to block all action in the Senate. As Democrats learned from years of experience when Republicans obstructed the Democrats' agenda, the public typically holds the majority party responsible when obstructionism occurs. Only if Republicans can generate Democratic support for changing rules should reform of the process proceed. This is but par for the course in the history of the filibuster. All senators understand the value of the filibuster to their party's and their own political and policy agendas. If Democratic leaders are able to judge public sentiment and the intentions of fellow senators, then they will know how far they can obstruct the confirmation process without fear that they will motivate more of their colleagues to support a change the rules. The Democrats, it seems to us, have gauged the situation just about right.
    Very interesting. But I am not so sure they have the politics right.
    The Politics of Going Nuclear When Senator Byrd pioneered the use of the so-called nuclear option during his tenure as Senate Majority leader, his tactics were almost completely invisible to the public and the general media. The actual technique would be a point of order followed by a nondebatable ruling by the chair--sustained. Then the rule change could be adopted by majority vote. And then it would be applied, and a majority would confirm Estrada, Owen, and the rest. Of course, the Democrats have weapons left in their arsenal. They could shut the Senate down by calling for a roll call vote on every matter put before the Senate for unanimous consent. But is it so clear that the Republicans would be seen as the villains if the Democrats shut down the Senate? By way of analogy to the Republican shut down of government over the budget impasse during the Clinton administratin, it seems far more likely that the political losers would be the Democrats. But this does not mean that the nuclear option is politically viable. The decisions to employ Senator Byrd's tactics will not come easy to the Republicans--in part, because Republicans resented those very tactics when they were in the minority.
    Waiting for the Supreme Court Vacancies Indeed, it is not clear that the Republican caucus is ready to go nuclear now. Some members of the Republican caucus want to wait until the Democrats expand the filibuster, either to a third lower-court nominee or to a Supreme Court nominee (in the fall?). But if the Republicans wait until there is a Bush nominee to the Supreme Court, the political landscape will change again. The Democratic party has attempted to galvanize its base on the basis of the importance of judicial nominations to the Courts of Appeals and the District Courts, and the Republicans have done the same. But neither party has really succeeded in this effort. The truth is that it will take a Supreme Court vacancy to bring this issue to public consciousness. If there are two vacancies (Rehnquist and O'Connor) are the most likely, then the fate of Roe v. Wade will be on the line. This will give the Democrats considerable political cover for extreme action in the event of a Republican nuclear option, and vice versa. But at that point, the game will be being played for very high stakes indeed.
    Strategic Implications So what are the strategic implications? My take is that if the Republican leadership decides to go for a change in the filibuster rule, it would be in their interest to do so as soon as possible--before the Supreme Court is on the table in popular perception. Democrats would be wise to delay this move by any technique available--including an offer to faciliate confirmation of one or more of the controversial lower court nominees. Who knows what decisions are being made behind closed doors? Perhaps something dramatic will happen in the next few days or weeks. But if the status quo remains in place and there are two Supreme Court resignations in July, we are headed for interesting times. For more, see Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy.

Hasen: Weighing in on the "Buying Time" Controversy Lawprof and political scientist Rick Hasen weighs in on the controversy over the "Buying Time" study re sham issue advocacy ads. This issue is important in the context of the Supreme Court's review of the three-judge District Court decision, upholding parts and striking down parts of the McCain-Feingold campaign finance legislation.

Saturday, May 24, 2003
RSS Feed Updated to Blog Matrix At Chris Bertram's suggestion, I have updated my RSS feed to Blog Matrix. The link is available on the left sidebar towards the top.

Manheim and Solum on the Economics of Domain Name Policy Karl Manheim (Loyola Marymount) and Lawrence Solum (Loyola Marymount and University of San Diego) have posted An Economic Analysis of Domain Name Policy on SSRN. Here is the abstract:
    One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Logically, the DNS is organized into Top Level Domains (such as .com), Second Level Domains (such as, and third, fourth, and higher level domains (such as The physical infrastructure of the DNS consists of name servers, including the Root Server System, which provides the information that directs name queries for each Top Level Domain to the appropriate server. ICANN is responsible for the allocation of the root and the creation or reallocation of Top Level Domains. The Root Server System and associated name space are scarce resources in the economic sense. The root servers have a finite capacity and expansion of the system is costly. The name space is scarce, because each string (or set of characters) can only be allocated to one Registry (or operator of a Top Level Domain). In addition, name service is not a public good in the economic sense, because it is possible to exclude strings from the DNS and because the allocation of a string to one firm results in the inability of other firms to use that name string. From the economic perspective, therefore, the question arises: what is the most efficient method for allocating the root resource? There are only five basic options available for allocation of the root. (1) a static root, equivalent to a decision to waste the currently unallocated capacity; (2) public interest hearings (or "beauty contests"); (3) lotteries; (4) a queuing mechanism; or (5) an auction. The fundamental economic question about the Domain Name System is which of these provides the most efficient mechanism for allocating the root resource? This resource allocation problem is analogous to problems raised in the telecommunications sector, where the Federal Communications Commission has a long history of attempting to allocate broadcast spectrum and the telephone number space. This experience reveals that a case-by-case allocation on the basis of ad hoc judgments about the public interest is doomed to failure, and that auctions (as opposed to lotteries or queues) provide the best mechanism for insuring that such public-trust resources find their highest and best use. Based on the telecommunications experience, the best method for ICANN to allocate new Top Level Domains would be to conduct an auction. Many auction designs are possible. One proposal is to auction a fixed number of new Top Level Domain slots each year. This proposal would both expand the root resource at a reasonable pace and insure that the slots went to their highest and best use. Public interest Top Level Domains could be allocated by another mechanism such as a lottery and their costs to ICANN could be subsidized by the proceeds of the auction.

New Papers on the Net Here is the roundup:
    William Wang (Hastings) posts Selective Disclosure by Issuers, Its Legality and Ex Ante Harm, forthcoming in Company Lawyer. From the abstract:
      Some commentators argue that, ex ante, induced or preempted traders are not injured because share prices will discount both the risk of becoming a victim of an insider trade and any loss of liquidity caused by a widening of bid-ask spreads by market- makers and specialists. Presumably, this discount will harm issuers by lowering the price at which they issue shares. Nevertheless, ex ante, insider trading may still harm preempted and/or induced traders if the market is unable to determine an appropriate discount for the risk of becoming a victim.
    Peter Joy (Washington University) and Robert Kuehn (Tulane) upload An Ethics Critique of Interference in Law School Clinics, forthcoming in the Fordham Law Review. The abstract:
      Law school clinics play an important role in training future lawyers and in providing legal assistance to traditionally under-represented individuals and groups. In addition to facing the legal issues present in any law practice, law clinic students and faculty are often confronted with ethical issues that lawyers representing poor and unpopular clients sometimes face - outside interference in case and client selection. This article explores the ethical considerations raised by interference in law school clinic case and client selection and limitations on the means of representation lawyers may employ in representing their clients. The article's analysis provides a useful framework for responding to interference with not just law school clinics, but also with legal services lawyers, public defenders, and private practitioners representing poor and unpopular clients and causes.
    Darryl Brown (Washington and Lee University) posts Cost-Benefit Analysis in Criminal Law, forthcoming in the California Law Review. From the abstract:
      This paper explores the prospects for integrating criminal law into the widespread trend elsewhere in the executive branch of using cost-benefit analysis to improve policymaking and enforcement practice. The paper describes the substantial array of unnoticed and under-valued costs created by the America's unique and fairly recent commitment to severe incarceration policies. It then maps the challenges for employing CBA in criminal enforcement practice. Those challenges include CBA's own methodological and conceptual limitations, public choice problems created by the populist structure of criminal justice administration, constraints on CBA in criminal justice in light theoretical commitments to retributivism, and practical limits employing such a policy in the executive branch when legislatures are unwilling to reduce statutory punishment mandates. Despite these obstacles, the paper concludes that a properly devised, CBA-based decision procedure - one that takes account of distributive concerns - is a promising avenue for rationalization and reform of state and federal criminal justice.
    Shubha Ghosh (SUNY, Buffalo) and Jay Kesan (Illinois) upload What Do Patents Purchase? In Search of Optimal Ignorance in the Patent Office. The abstract:
      In a stimulating and thought-provoking article, "Rational Ignorance at the Patent Office," 95 NW. L. REV. 1495 (2001), Professor Mark A. Lemley urges that he does not necessarily think that there is a problem with how the U.S. Patent and Trademark Office (PTO) handles patent applications. The agency does the best it can. To use his phrase, the PTO is rationally ignorant. . . . We urge that Professor Lemley seems to ignore the broader goals of the PTO in determining when the agency is being rationally ignorant. As we argue, the real issue is not of rational ignorance, but optimal ignorance. In other words, what is the optimal amount of ignorance from the perspective of society, assessing both the costs and benefits of the patent system on all actors, as opposed to just the PTO, to collecting and assessing information about prior art and novelty and non-obviousness. Drawing from another example, as with optimal deterrence in criminal law, optimal ignorance focuses on the incentive effects throughout society, not just on specific agents, whether patent examiners or criminals.
    Paul Robinson (Pennsylvania) posts The Bomb Thief and the Theory of Justification Defenses forthcoming Iyunei Mishpat and Criminal Law Forum: An International Journal. Abstract:
      Earlier this year, an addict named Ashkenazi spotted an unattended backpack on a busy beach north of Tel Aviv, Israel. He seized the opportunity and stole the bag, taking it to a nearby abandoned house to examine his loot. What he found in the bag was a terrorist's bomb. He notified police who disarmed the bomb. Ashkenazi's conduct saved many lives, but he did not realize it at the time. Should he be criminally liable for his theft? This article explores the theoretical dispute raised by the case: competing views on the theory of justification. A subjective, or "reasons," theory looks to the actor's intent and would deny a justification defense in this case, leaving Ashkenazi liable for the theft. An objective, or "deeds," theory looks to whether the actor's conduct in fact avoids a greater harm. It would give a lesser evils defense for such a theft, although the unknowingly justified actor would remain liable for attempted theft (if the jurisdiction punishes impossible attempts). Israeli law takes the objective "deeds" view; most (but not all) U.S. states take the subjective "reasons" view.
    Paul Robinson (Pennsylvania) and John Darley (Princeton) upload The Utility of Desert, forthcoming in the Northwestern University Law Review. From the abstract:
      The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real power to gain compliance with society's rules of prescribed conduct lies not in the threat or reality of official criminal sanction, but in the power of the intertwined forces of social and individual moral control. The networks of interpersonal relationships in which people find themselves, the social norms and prohibitions shared among those relationships and transmitted through those social networks, and the internalized representations of those norms and moral precepts are what cause people to obey the law. The law is not irrelevant to these social and personal forces. Criminal law, in particular, plays a central role in creating and maintaining the social consensus necessary for sustaining moral norms. In fact, in a society as diverse as ours, the criminal law may be the only society-wide mechanism that transcends cultural and ethnic differences. Thus, the criminal law's most important real world effect may be its ability to assist in the building, shaping, and maintaining of these norms and moral principles. It can contribute to and harness the compliance-producing power of interpersonal relationships and personal morality. The criminal law can have a second effect in gaining compliance with its commands. If it earns a reputation as a reliable statement of what the community, given sufficient information and time to reflect, would perceive as condemnable, people are more likely to defer to its commands as morally authoritative and as appropriate to follow in those borderline cases where the propriety of certain conduct is unsettled or ambiguous in the mind of the actor. The extent of the criminal law's effectiveness in both these respects--in facilitating and communicating societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority--is to a great extent dependent on the degree of moral credibility that the criminal law has achieved in the minds of the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as "doing justice," that is, if it assigns liability and punishment in ways that the community perceives as consistent with the community's principles of appropriate liability and punishment. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert.
    Paul Robinson (Pennsylvania) uploads two papers:
      Structuring Criminal Codes to Perform Their Function, forthcoming in the Buffalo Criminal Law Review. From the abstract:
        This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of abilities and from a wide variety of backgrounds. Effectiveness in announcing the rules of conduct requires simple, clear, and preferably objective rules. In contrast, the goal of the principles of adjudication - to assess ex post the degree of liability and punishment, if any, due for a violation of the rules of conduct - often requires nuanced, subjective, and sometimes complex judgements, at least as nuanced, subjective, and complex as our notions of justice. The paper makes the case for two distinct code documents, each drafted to best perform its function, and explores how this can be done.
      Testing Lay Intuitions of Justice: How and Why?, forthcoming in the Hofstra Law Review. From the abstract:
        When John Darley and I wrote Justice, Liability, and Blame: Community Views and the Criminal Law, our goal was not to provide the definitive account of lay intuitions of justice but rather to stimulate interest in what we saw as an important but long-term project that would require the work of many people. Having this American Association of Law Schools program is itself something toward that end and for that we thank Christopher Slobogin and Cheryl Hanna. In this brief introduction to the Symposium, let me set the stage by doing four things. Part I of this Article summarizes the arguments we have made elsewhere as to why we think lay intuitions of justice are important for criminal law rule-makers. Part II sketches how we have gone about testing lay intuitions of justice. Part III looks briefly at one simple study to illustrate our methodology, which we have used on a variety of issues, as described in Part IV.
    David Schoenbrod (New York Law School) posts Politics and the Principle that Elected Legislators Should Make the Law, forthcoming Havard Journal of Law and Public Policy. From the abstract:
      The Supreme Court's decision in Whitman v. American Trucking Association has been widely understood to repudiate decisively the principle that elected legislators should make the law or to refuse to enforce this principle on the basis that the Court lacks a judicially manageable standard. This article argues that at least some Justices believe that the Constitution does embrace that principle and further believe that it is judicially manageable, but shy away from enforcing it because it is politically impossible for it to stop Congress from delegating politically controversial choices to administrative agencies. The Court has, however, found it possible to prevent the practice of delegation from spreading to include delegations to governmental institutions other than agencies and has done so. Seeing the delegation case law as driven by political constraints provides a way to understand seeming disparate areas of case law and also shows that the Court does have a useful, although not all-powerful role in enforcing the constitutional principle that elected legislators should make the law. Moreover, the Court has begun, however subtly, to play that role in ways that could eventually have repercussions for delegations to agencies.
    Ben Depoorter (Yale) and Francesco Parisi (George Mason) post Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes, forthcoming in Global Jurist Frontiers. Abstract:
      This Article argues that recent developments in economic theory provide a new rationale for the dichotomous approach of land use arrangements in the law of servitudes that is almost universal in the modern Western legal tradition. The treatment of certain land-related promises as enforceable contracts between parties, rather than real rights that run with the land in perpetuity, can be explained as an attempt to minimize the transaction and strategic costs resulting from dysfunctional property arrangements. As demonstrated by the Authors, benchmark doctrines such as "touch and concern," and the civil law principles of "prediality" and numerus clausus, have served as instruments to limit excessive or dysfunctional fragmentation of property rights.

Friday, May 23, 2003
Today My father, Clayton Lawrence Solum, passed away recently, and his memorial service will be held later today. I miss him more than I can say. Regular blogging will resume soon, but in the meantime, here are some recent posts of which I am especially proud:Thank you all for the condolences and kind words.

Thursday, May 22, 2003
RSS Code added as well as a link on the sidebar near the top. Happy aggregating.

Estrada's Answer to the Roe Question I just read Toobin's New Yorker piece on the confirmation wars--time sensitive link here (thank you Howard Bashman). Here are reactions by Adam White and by Bashman. What struck me is the following passage:
    “Do you believe that Roe was correctly decided?” the Senator [Feinstein] followed up.
      “My view of the judicial function, Senator Feinstein, does not allow me to answer that question,” Estrada said. “I have a personal view on the subject of abortion, as I think you know. But I have not done what I think the judicial function would require me to do in order to ascertain whether the court got it right as an original matter. I haven’t listened to parties. . . . I have had no particular reason to go back and look at whether it was right or wrong as a matter of law, as I would if I were a judge that was hearing the case for the first time. It is there.”
    Other Bush nominees had given similarly vague answers about Roe, but, when the Estrada nomination headed to the Senate floor, in early 2003, the Democrats decided not to let him get away with it.
But didn't Estrada give exactly the right answer? Roe v. Wade is surely one of the most controversial decisions in the history of our constitutional jurisprudence, and part of the reason is that Justice Blackmun's original opinion was so badly written. Most defenders of Roe do so on grounds other than those actually articulated in the decision. Some believe that Roe can be defended on the basis of the equal protection clause. Others believe that a case can be made for Roe on the basis of the privileges and immunities clause of the 14th amendment. Still others believe that Roe may have been wrongly decided in 1971, but that the doctrine of stare decisis requires continued adherence to Roe. And of course, many critics believe that Roe was wrongly decided and should be reversed. I've thought about this question for quite a long time, and I've never had a firm opinion about the correctness of Roe as an original matter--although I believe that Roe, like all decisions, should be given stare decisis effect absent extraordinary circumstances. But as to whether I would reach the same result with different reasoning if Roe were before me as an original matter, it is simply a very difficult question. Shouldn't prospective federal judges answer the question exactly as Estrada did? Shouldn't a virtuous judge wait until deliberating before answering such a question? Of course, if you are a neorealist and believe that politics should determine the answer to the question whether Roe was correct, then deliberation is simply irrelevant. Most thoughtful Americans have a view as to whether abortion should be permitted as a matter of policy as opposed to law. But the legal question requires careful deliberation, including the consideration of a variety of complex arguments, historical sources, and prior Supreme Court opinions. Most lawyers have a gut instinct about how they would come out after deliberating, but that's not the way judges are supposed to proceed. And another thing. I suppose that many critics of Estrada believe that he is simply lying--that he does have a fixed opinion about Roe, but he is withholding it for political reasons. I surely don't know Miguel Estrada well enough to make such a serious charge about the deficiency of his character, and I suspect that many who believe he is lying themselves have no reason particular to Estrada to support their belief. My guess is that they assume that he is a liar, simply because he was nominated by President Bush. "They are all liars."--the reasoning goes. And I suspect many supporters of Estrada have exactly the opposite take. Many of Estrada's supporters think that most Democratic critics of Estrada are simply willing to make up lies about him for political advantage--but I certainly have no reason to believe that charge either. The Estrada controversy is simply another piece of evidence that we are in a downward spiral of politicization--which has destroyed almost every shred of mutual trust and respect between the Democrats and Republicans in the Senate, at least insofar as this issue is concerned.

Posner on Plargarism It's fraud, not theft. Here.

New Papers on the Net Here is today's roundup:
    Terrence Chorvat (George Mason) offers Perception and Income: The Behavioral Economics of the Realization Doctrine. The abstract:
      The requirement that gains be "realized" before they are subject to income tax is one of the most fundamental doctrines in tax law as well as being one of the most controversial. The common assumption in the academic literature is that this requirement leads to significant inefficiencies and inequities. This article argues that requiring a realization event is generally the best way to measure taxable income because it is consistent with how individuals actually perceive income. This perspective helps us to understand the development of the realization doctrine as well as suggest ways in which the current tax system can be improved, such as exempting some of the amounts reinvested in mutual funds from income taxation.
    Mary Anne Case (Chicago) uploads Developing a Taste for Not Being Discriminated Against, forthcoming in the University of Chicago Law Review. From the abstract:
      Using as a jumping-off-point Ian Ayres's Pervasive Prejudice and the new Critical Race Theory reader, Crossroads, this review essay urges that more systematic data gathering, testing, surveying, analysis and theorizing should be done from the perspective of the victims of discrimination in the retail markets with an eye toward developing a taxonomy of the taste for fairness as rich and detailed as the long established taxonomy of a taste for discrimination and using this taxonomy to develop more effective transitional remedies for discrimination.

The Other Go to Chris Bertram's marvelous Junius, just because it is so great, and you might check out a moving quote from Buber, which is posted on Junius here.

Straussians I've mostly ignored the controversy over the influence of Leo Strauss on neocons, but Antidotal has a very nice post.

Utilitarianism Reborn Department has a very thoughtful comment on economist John Quiggan's recent claim that utilitarianism has no serious competitions as a public philosophy. My comments were here and here.

Hasen on the Filibuster Check out Rick Hasen's commentary on a recent Norm Ornstein op/ed on the filubster of judicial nominees. The central issue discussed by Ornstein is the question whether the entrenchment of the filibuster is unconstitutional. This questions is, in my opinion, a red herring. The filibuster is not entrenched beyond change by majority vote--because a ruling from the chair that Senate Rule 22 does not apply to itself (or does not apply to itself in executive session or some other roughly equivalent ruling) can be sustained by a simple majority vote. There is a constitutional question: does the Senate have a duty to provide advice and consent within a reasonable time? And that question is a no brainer: of course it does. But is the Senate likely to fulfill that duty when the majority wishes to obstruct the President? Not unless the President were willing to use recess appointments to force the Senate's hand. But our current situation involves minority obstruction, and that cannot possibly be unconsitutional--because the minority only can obstruct with the tacit consent of the majority.

Wednesday, May 21, 2003
Welcome to the Blogosphere To MAIZE-N-BLUE BOOK, a blawg by a University of Michigan law student.

Falk on High Politics Reacting to my post from this past Sunday, A Neoformalist Manifesto, Economist Jonathan Falk writes:
    I found your Sunday piece well reasoned. In responding to Balkin as you have, however, I think you miss an important point about "high politics," namely the extent to which an eschewal of high politics in the judiciary makes things less contentious in the long run as the people's directly elected representatives are forced to hash these things out. You are quite correct to surmise that a judiciary which did not require women's equality was quite likely to find itself with an ERA to confront. But more than that, the mere passage of an ERA eliminates much of the contentiousness associated with its creation. The perfect example here is Roe v. Wade. While I have seen lots of opinions that the result of Roe v. Wade was correct, I have never seen a justification of the logic of the opinion itself. (Remember, I'm just an economist, so I could have missed it.) The short-circuiting of the people which such a decision represents, however, guarantees that it will continue to rankle. There is no question that abortion would be a far less divisive issue today had the Supreme Court kept their noses out of the issue, i.e. putatively upheld every restriction AND every liberalization.
    The problem, of course, is twofold. First, judges are impatient and unwilling to wait for the fullness of time to justify their views. (I ignore the substantial number of times when the fullness of time rejects their views.) Second is the problem that judges are expected to do justice in the case before them. It seems unsatisfactory to say to Roe, "Well, I wish you could have an abortion, and a proper political system which recognized your liberty should allow you to have an abortion, but my hands are tied." After all, it seems to be such a short step from the "should" in the previous sentence to "will," given that the judge has the power to make "should" into "will." But it isn't. What is really needed here is another judgely virtue which doesn't make your list: humility -- that even beyond stare decisis, there are decisions that are not theirs to make.

Shavell on the Foundations of Economic Analysis of Law Steven Shavell (Harvard) has posted several chapters from his new book, Foundations of Economic Analysis of Law (Harvard University Press, 2003), on SSRN. Here are the links:

New Papers on the Net Here is the roundup:
    Il-Horn Hann, (Southern California, Business) Kai-Lung Hui (National University of Singapore, Computing), Sang-Yong Lee (National University of Singapore, Computing)and Ivan Png (National University of Singapore, Computing) upload The Value of Online Information Privacy: An Empirical Investigation. Here is the abstract:
      Concern over online information privacy is widespread and rising. However, prior research is silent about the value of information privacy in the presence of potential benefits from sharing personally identifiable information. We analyzed individuals' trade-offs between the benefits and costs of providing personal information to websites. We found that benefits - monetary reward and future convenience - significantly affect individuals' preferences over websites with differing privacy policies. We also quantified the value of website privacy protection. Among U.S. subjects, protection against errors, improper access, and secondary use of personal information is worth US$30.49 - 44.62. Finally, we identified three distinct segments of Internet consumers - privacy guardians, information sellers, and convenience seekers.
    Sacha Wunsch-Vincent (Institute for International Economics) posts The Digital Trade Agenda of the U.S.: Parallel Tracks of Bilateral, Regional and Multilateral Liberalization, forthcoming in Aussenwirtschaft. From the abstract:
      What the U.S. has not yet achieved on digital trade multilaterally, it now plans to seed in a tight net of gradually increasing bilateral agreements that are negotiated sequentially. The digital trade negotiations on the bilateral front help the U.S. to build coalitions of like-minded trade partners that will make it easier to converge to a consensus that strongly resembles the U.S. approach on the regional or even the multilateral level. But the U.S. negotiators will be likely to face the same problems as in the WTO when the U.S. starts to approach partners for preferential trade agreements that are economically more important and that are also very inclined to rank "cultural diversity" high on their agenda. With respect to other elements, however, (e.g. IPR protection, service liberalization, and general awareness of free digital trade) the U.S. multi-track initiative for digital trade remains a very promising undertaking that may also foreshadow how majorities can be found among an increasingly heterogeneous WTO membership.
    Genevra Richardson (University of London - Queen Mary & Westfield College) uploads Autonomy, Guardianship and Mental Disorder: One Problem, Two Solutions, forthcoming in the Modern Law Review. Here is the abstract:
      The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or to refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.
    Jan Broekman (Illinois) offers Solidarity and Multiculturalism, forthcoming chapter in THEORY OF LAW AND SOCIETY (2003). From the abstract:
      "The European Union will be nothing if not multicultural." This slogan puts multiculturalism in a global and legal perspective. Multiculturalism is defined here as the major feature of a society, which is predominantly composed of groups with different ethnic, geographic, religious and cultural roots striving for equal positions among its citizens on the market of labor, goods and capital. The legal support system is based upon the concept of solidarity. Its realization, however, clashes in an exemplary manner with formal requirements of law and administration in the EU.
    Davison M Douglas (William and Mary) uploads The Rhetorical Uses of Marbury v. Madison: The Emergence of a 'Great Case', forthcoming in the Wake Forest Law Review. Here is the abstract:
      Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury was not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review and nineteenth-century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of judicial review became far more controversial. Proponents of judicial review seized upon the Marbury decision to legitimize their claims for an expansive conception of the doctrine - particularly after the Court engaged in an extraordinarily controversial exercise of judicial review in 1895 in the Pollock decisions declaring the newly enacted federal income tax unconstitutional. In the process, Marbury became, for the first time, a "great case" - as measured by its treatment in judicial opinions, legal treatises, and casebooks - a moniker that would have been ill applied to the decision for most of the nineteenth century. Marbury's significance today cannot be attributed to the pathbreaking character of the decision. Rather, Marbury became "great" because proponents of an expansive doctrine of judicial review have needed it to assume greatness.
    Paul Caron (Cincinnati) offers Back to the Future: Teaching Law Through Stories, forthcoming in the University of Cincinnati Law Review. The abstract:
      This Essay explains the pedagogical theory behind the new Law Stories series of books to be published by Foundation Press. The Law Stories series is intended to enrich the use of the case method of instruction in the law school classroom. By focusing on fewer cases and pausing for an in-depth review of the seminal cases in the field, the professor can empower students to construct their own schematic understanding of the area of law. Cognitive science teaches that such active learning produces more lasting value to students who are better equipped to process new information and solve new problems within the context of their self-constructed schemata. Professors thus should resist the temptation to do this work for students, conveying our schemata in a top-down fashion, with students playing merely a passive role in receiving this oracular wisdom. As a result, Professors should not sacrifice depth of coverage at the alter of scope of coverage; rather than rush through the signature cases in our subject in order to get to the latest hot topic or fashionable theory, professors should savor the opportunity to unpack with our students what it is that makes these cases central to a deep understanding of the field. The Law Stories series provides the raw material to enhance the study of the foundation cases in different subjects. As the initial book in the series, Tax Stories provides an in-depth examination into ten pivotal United States Supreme Court cases in the development of the federal income tax that provide fresh insights both into particular doctrinal areas of tax law as well as issues of wider application across the tax law.
    Christopher Drahozal (Kansas) Nonmutual Agreements to Arbitrate, forthcoming in the Journal of Corporation Law. From the abstract:
      An increasing number of courts, albeit still a minority, refuse to enforce nonmutual arbitration clauses (clauses that require one party but not the other to arbitrate, in whole or in part) in consumer and employment contracts. Critics take the view that such clauses are unfair to consumers and employees, who must arbitrate their claims while the business avoids arbitration of at least some of its own claims. This article challenges the view that nonmutual arbitration clauses necessarily are unfair. Certainly to the extent market forces constrain business (mis)behavior, nonmutual arbitration clauses may make consumers better off. Commentators who criticize (and courts that invalidate) nonmutual arbitration clauses, however, are skeptical of markets and question the effectiveness of market constraints. This article shows that even accepting – for the sake of argument – the skeptical view of markets and business behavior held by critics of pre-dispute consumer arbitration clauses, a requirement that arbitration clauses contain mutual promises to arbitrate may actually make consumers worse off, not better off. Moreover, such a mutuality requirement may result in arbitration proceedings that are less fair, rather than more fair, to consumers. Thus, while a poorly functioning market is a necessary condition for a mutuality requirement to make sense as a policy matter, it is not a sufficient condition. Courts that refuse to enforce nonmutual agreements to arbitrate may be harming consumers rather than helping them.
    Howard Erichson (Seton Hall) posts Beyond the Class Action: Lawyer Loyalty and Client Autonomy in Non-Class Collective Representation, forthcoming in the University of Chicago Legal Forum. From the abstract:
      Class actions receive the lion's share of academic and policymaking attention, but in practice much mass litigation proceeds on a non-class basis. Non-class mass litigation often resembles class actions in the following sense: numerous plaintiffs depend upon the work of counsel with whom they have no meaningful individual lawyer-client relationship, over whom they have no meaningful control, and whose loyalty is directed primarily to the interests of the group as a whole. Class actions retain the distinction of binding nonparties, but in the relationship between counsel and the represented group, non-class litigation resembles class actions to a much greater extent than generally recognized. Given the attention that class actions have received, it makes sense to look to certain class action concepts and developments to inform our understanding of non-class collective representation.

Kmiec on the Filibuster Doug Kmiec has an L.A. Times op/ed entitled A Catch in Senate Clogs Judicial Pipeline. Here is a taste:
    This can't be, and isn't, the law. An unbroken chain of Supreme Court rulings anchored in English common law provides that "every succeeding legislature possesses the same jurisdiction and power as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."
    That the Senate has disregarded this ancient precept and is operating outside the Constitution gives the freshmen a chance to set things right. It's not complicated. Have the same majority favoring Estrada pass a rule amendment restoring the right of a simple majority to close debate on all judicial nominations. If an objection or point of order is raised in favor of the unrepresentative (and unadopted) 60/67-vote rules, the presiding officer should overrule the objection, reminding the objectors that a majority of all elected senators must retain at least one chance in every Congress to amend its rules.

Tuesday, May 20, 2003
Fear and Loathing in New Haven
    Prelude Northbound on Interstate 15, South of Barstow. Late afternoon. I am driving to Las Vegas on a sad and personal errand. I don't know about you, but when I do long distance driving my mind wanders. My dad. A Seinfeld episode. Blogging. The Internet. The Matrix. And before I know it, I'm thinking about The Matrix Reloaded and a how it gives new meaning for the phrase "special effects." Surprised at myself, I find that I am sympathizing with Agent Smith. What a pain Neo is. Smith plans and prepares, but no matter what how meticulous his plans may be, Neo always has a counter move, an evasion, an exit. No matter how quick Smith is, Neo is always faster. Neo has lost his grip on the apparent reality of the matrix, and so the matrix has no grip on Neo. And that reminds me . . .
    Neoformalism versus High Politics . . . and that reminds me that I need to reply to the latest post by Jack Balkin, the Neo of contemporary legal theory. Balkin is one of the mater tacticians of legal argument--he always has a move, a distinction, an argument, a slide, a theory. Our exchange grew out of a column by Edward Lazarus on the virtue of judicial integrity. Although quite critical of Lazarus's critique of a dissenting opinion by Alex Kozinski, my post, Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, argued that the virtue of justice is essential to judicial integrity and that this virtue requires fidelity to law--following the rules laid down. To cash out the notion of fidelity to law, I gestured toward a neoformalist theory of constitutional adjudication that emphasized precedent, text, structure, and history (in that order) as the guideposts for the decision of constitutional cases. Jack Balkin responded in a post entitled Good Judging and "Following the Rules Laid Down.", taking me to task for the implications of neoformalism with respect to the Supreme Court's equal-protection gender-discrimination jurisprudence. Jack argued that these cases could not be justified by the precedents, the text of the equal protection clause, or by the original meaning of the Constitution. They could only be justified by a picture of constitutional interpretation that makes "high politics" a legitimate basis for constitutional decision. Nonetheless, Balkin argued, high politics is law. I countered in a post titled A Neoformalist Manifesto, elaborating with a fuller sketch of a neoformalist theory of constitutional adjudication and arguing that high political constitutional decision making would undermine the rule of law. Balkin has now replied in a post entitled Good Judging and "Following the Rules Laid Down," Part II. So now it’s my turn.
    First Interlude Northbound on Interstate 15, North of Barstow. Before dusk. There it is on the left. Calico. A ghost town. And today, of all days, I am thinking of ghosts. Memories flash. I'm a small boy exploring a ghost town with my father. I am hunting for hidden gold and watching out for the ghosts. I blink and I'm back on the Interstate, but the ghosts are still with me.
    Constitutional History and the Ghosts of Theories Past The ghosts of constitutional history are still with us. Contemporary jurisprudence is haunted by Lochner and the mythical switch in time that saved nine. By footnote four and Brown v. Board of Education. By Henry Hart and Alexander Bickel. By Miranda and Baker v. Carr. By Griswold and Roe. So much history. How are we to reconcile the New Deal critique of the Supreme Court with the great decisions of the Warren and Burger Courts? Why is Lochner wrong and Roe right? Why defer to Congress on issues of federalism but not on the freedom of speech? Theories come and go. John Hart Ely's Democracy and Distrust. Laurence Tribe's multi modeled American Constitutional Law. Ronald Dworkin's Forum of Principle. Bruce Ackerman's We the People. Sandy Levinson and Jack Balkin's High Politics. Much changes, but some things stay the same. Paul Brest inters originalism in The Misconceived Quest for the Original Understanding. Everyone agrees that Lochner was wrongly decided. Warren gives way to Burger gives way to Rehnquist. And we are still at it, but the game has changed. Originalism rises from the ashes, and serious scholars write in defense of Lochner. Lopez and Morrison. And then there is Bush v. Gore. So many ghosts.
    Second Interlude Baker, California. Dusk. Baker is a dry desert town, which has only one claim to fame--the world's tallest thermometer. I am at an intersection. I could turn left. I look down the road. Lot's of folks have stopped at the Denny's. I could turn right. Big crowds at Bun Boy and the Mad Greek. Which way? And then I see another way. What looked like a driveway is a narrow street . . . no, a highway, California 127, the road to Death Valley. I decide--neither left nor right. I leave the bright lights and crowded restaurants behind and proceed through the intersection, straight ahead. In a just a few minutes, I am utterly alone.
    The Case Against Neoformalism In his most recent post, Balkin makes the normative case against neoformalism. Last time, Balkin used the Supreme Court's gender-discrimination equal-protection decisions as his normative club, arguing that these decisions were inconsistent with the precedents, the text, and the history, and therefore could only be justified by accepting that constitutional law is high politics. I was forced to bite the bullet. Yes, gender equality is important, but no, judicial fiat wasn't the only way to get there. Now Balkin steps up his attack. Here are his moves:
      A Feint Balkin's first move is a feint. He is trying to get me off my guard. In response to my biting the bullet, Balkin writes:
        It follows from this that Larry does not, in fact, think that the states and the federal government should be *constitutionally* prohibited from discriminating on the basis of sex. He believes that sex equality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination.
      Jack is waving his red cape, hoping I will charge. Of course, from the fact that Balkin believes that the Supreme Court's gender equality decisions could not have been justified by the constitutional precedents, the text of the equal protection clause, or the historical evidence of original meaning, it does not follow that I believe that there should be no constitutional prohibition against gender discrimination. First, this move confuses "is" with "ought." My post suggests what I will now make explicit: I support the Equal Rights Amendment. Second, as Balkin later admits, I believe that the gender equality decisions should be followed, because of my strong commitment to the doctrine of stare decisis.
      The Tender Mercies of Legislation Now comes Balkin's real argument. Because it is completely fair for Balkin to ask, "What if your theory had been in place forty years ago? What then?" This is the way he puts it:
        [Solum] believes that sex equality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination. But I think this misses the point at issue: Should the principle of sex equality be part of our basic law, our fundamental rights, so that one does not have to get legislation passed in order to secure basic rights for women? One might well have said the same thing in Brown v. Board of Education: let each state decide whether it wants to keep Jim Crow or abolish it; let Congress decide whether it wants to ban segregation in the D.C. schools, or not, and so on. I guess one could take that position with respect to almost every important civil right that doesn't fall within Larry's neoformalist vision of judging. But my point is that if so, this seems to me at least, to be a serious criticism of his position. I don't think it would be sufficient to leave the question of sex equality, or race equality, for that matter, to the tender mercies of indvidual states.
      The feint almost worked. It diverted my attention for a moment. I am tempted to point out that Balkin is mischaracterizing my position, but then it starts to sink in. After I pointed out that I would, in fact, endorse constitutional prohibitions against race and gender discrimination, Balkin would pounce. Because my theory does commit me to the position that many of the Warren Court decisions on these topics were badly reasoned and that some of them were wrongly decided. And even if I were able to salvage a good deal of the Warren Court legacy with subtle or heroic argument, Balkin could slash through that elaborate tissue of defence with a single hypothetical: But what if the precedents, text, and history did not permit those maneouvers? What then? But it gets worse. Balkin continues:
        [Solum] may well think that he can bite the bullet on the sex equality question. But the sex equality example was only one example. What [Solum] does not sufficiently recognize, I think, is that the number of Supreme Court decisions that are not consistent with his model of neoformalist judging are plentiful. Indeed, I would venture to say that there is hardly an area of contemporary civil rights law in which the key precedents protecting civil rights and civil liberties were originally developed consistent with [Solum]'s formula for good judging. Rather, the history of progress in civil rights in this country is the history of courts artfully dodging and sometimes overruling previous precedents, and creatively crafting new doctrinal structures in their stead, often with nary a concern for "plain meaning," structure, or original understanding. The list of cases that were decided in ways inconsistent with [Solum]'s rather narrow conception of good judging is so long that I can't even begin to list them all, but here's a partial sample: the basic doctrines of the scope of free expression, the rule of strict scrutiny for content based regulations, the rule of Brandenburg v. Ohio protecting seditious libel, the contemporary protection of blasphemy and indecency, the public forum doctrine, the rule of New York Times v. Sullivan, the doctrine of freedom of association, the doctrines prohibiting unconstitutional conditions on speech, the constitutional recognition of picketing as a form of protected expression, and that's just the first amendment doctrines that come readily to mind.
      And now, I am literally sweating. And Balkin goes on and on, pouring on the examples, arguing that the whole Warren Court legacy is indefensable on the basis of precedent, text, and history. Now Balkin is surely exaggerating, because many of the Warren Court's decisions were quite conventional--relying on precedents, constitutional text, and evidence of original meaning. But Balkin's exaggerations are of no help to me. Because Balkin is surely right about many of the Warren and Burger Court's important decisions. We all know that. That's why I am sweating. Balkin has me in a corner. My theory would have led to unthinkable consequences had it been followed from 1954 through the late 1970s, whereas Balkin's theory fits and justifies the key decisions that constitute the legacy of the Warren and Burger Courts. Think! There must be some way out of this. Why would anyone with a conscience leave such important issues to the tender mercies of legislators when they could be secure in the hands of the Justices of the United States Supreme Court? Rivulets of ice cold sweat are pouring down my back.
      Balkin's Ingenious Argument But then it hits me. Balkin's argument rests on a very clever rhetorical trick. Balkin and I are debating constitutional theories: High Politics versus Neoformalism. Balkin's argument is that high politics guarantees outcomes that seem highly desirable (gender equality, racial equality, and all the rest), whereas neoformalism must rely on the tender mercies of the political process. His evidence is that his theory endorses the methods and outcomes reached by the Warren and Burger Courts, whereas my theory does not. Balkin concedes political processes might have reached these same results through ordinary legislation or constitutional amendment, but, . . . and this is the crucial move, so watch carefully . . . but that is just too risky--because ordinary politics might fail. Who knows what would have happened if the Warren Court hadn't pursued the agenda of high politics? But this argument is a sham. It is audacious but atrocious. Because there was no guarantee that high political judging would produce the results that it did. It was an accident of history that Earl Warren was appointed Chief Justice. And that Bill Douglas was already on the Court. And that Eisenhower appointed William Brennan. And that Kennedy rather than Nixon won (or stole) the razor-close election of 1960. Balkin is comparing our ex post knowledge of how the Warren and Burger courts turned out with a hypothetical ex ante assessment of how things might have gone if the Warren Court had operated on the basis of a neoformalist constitutional methodology. And when Balkin makes the comparison, he assumes certainty for the ex post evaluation and notes the lack of certainty from the ex ante perspective. In other words, he is playing with a loaded deck.
      And here is the counter move that sinks Balkin's argument. So let's make another comparison, this time ex ante to ex ante. It is 2003. We have an ideologically conservative Supreme Court--some would say the majority of the Court is on the extreme right. Suppose you share Jack Balkin's politics and you have a magic wand. You can wave it up and down, and all nine justices will become true believers in the high politics theory of constitutional interpretation, but they will retain their own political orientations. Rehnquist, Scalia, Thomas, Kennedy, and O'Connor will all become true believers in the proposition that they ought to decide cases in accord with their high political ideology. Or you can wave your magic wand from side to side, and all nine Justices will become neoformalists--looking first to precedent, then to text, and finally to historical evidence of original meaning. Which way would you wave? I know, I know. This isn't a fair comparison either. And that is precisely the point--the glory point. Neither Balkin's comparison or mine provides a meaningful comparison of the long-run effect of adherence to our respective constitutional theories. A meaningful comparison can't start with a jury rigged description of particular historical circumstances. If we are going to ask the question, "which constitutional theory will produce better results?," we need to ask that question over the long haul, not at a particular point in time. Once we reframe the question in this way, it becomes clear that our best evidence is to be gleaned from comparative constitutional practice. When we compare our constitutional system with comparable polities, the United Kingdom, Canada before and after the Charter, and so forth, then we can see that Balkin's argument is quite simply a colossal failure. One just can't make out the case that realist constitutional jurisprudence is essential to the realization of human liberty and equality. Moreover, if we look at the long run of American constitutional history, it is very difficult to make out the argument that federal judges or Justices of the Supreme Court are reliable. Indeed, Balkin's own argument shows that this is not the case. Balkin's rhetorically clever argument against neoformalism began with the premise that Supreme Court Justices before the Warren Court had made bad decisions that would have bound the Warren Court if it had adopted a neoformalist methodology. In other words, pre-Warren, we were at the tender mercies of a Supreme Court whose high politics provided no guarantees of liberty or equality--at least according to Balkin. Thus, Balkin's own premise shows that over the long haul, putting the awesome power of ideological judging in the hands of Supreme Court Justices leaves us at the tender mercy of a shift in the high political winds. I can breathe again.
      Am I Having My Cake and Eating It Too Having dodged that bullet, I immediately face another. Balkin continues:
        If I am correct about all this, then there is an enormous irony to Larry's theory. For despite all of these criticisms, Larry can in fact have his cake and eat it too. He can point out that judges should follow the sex equality cases, the cases broadening the scope of Congressional power, the cases legitimating the administrative state indeed, the whole panoply of cases that I have just pointed to, because they are *already decided,* and judges must follow stare decisis. But here is the irony: The only reason that these things are law now, and that judges must follow them, is because other judges in the past who Larry thinks didn't know how to do their jobs properly violated their oaths of office and inserted these travesties into constitutional law. So Larry's theory commits him to the following paradoxical position: He doesn't have to defend a deeply unjust and unworkable constitutional scheme because other judges in the past didn't follow his advice about what constitutes good judging and inappropriately mixed law and politics in the very ways he accuses me of. And that paradox, I think, suggests that there is something deeply wrong about his theory of judging. He is like a man who is living off the proceeds of stolen goods.
      This is a serious charge. Essentially, Balkin argues that I have engaged in intellectual theft. I have not earned the Warren Court legacy. And he is right. I haven't. I don't claim that I have. My case for neoformalism did not rest on the fact that it preserves decisions that I believe are good on the basis of my own political beliefs. From my perspective, my politics are only marginally relevant to the topic at hand, but Balkin has put them on the table. So I need to say a bit more. My own attitude toward the Warren Court legacy is ambivalent. Many cases have outcomes I applaud and rationales I can endorse. Others have outcomes I like, but rationales that need considerable fixing. Others have good outcomes, but cannot be fixed. Miranda is one of these. From my perspective, it is regrettable that the rule of law requires that Miranda be eroded only gradually, by the traditional formal methods. Miranda warnings are probably a good thing, but their imposition by judicial fiat was one of the great errors of the Warren Court. Of course, the doctrine of stare decisis applies to Rehnquist Court decisions as well. I think Hans v. Louisiana and Seminole Tribe were constitutional mistakes, but neoformalism requires that they be followed despite my antipathy. I could go on, with example after example, but here is the point. I am willing to take the bitter with sweet. Who knows how deeply we see into our own souls. All I can say is that from where I stand, I cannot say that Jack Balkin has seen deeply into mine.
      The Ratchet Balkin finds it ironic that a neoformalist would endorse a muscular version of the doctrine of stare decisis. I must confess that when I put Balkin's powerful rhetoric to the side, the irony escapes me. Of course, a legal theory constructed to realize the rule of law will place great weight upon the rules laid down. Formalism and stare decisis, like love and marriage, go together like a horse and carriage. But Balkin's objection has a flip side, which is much more serious. Of the many emails that I've received about A Neoformalist Manifesto, the most critical have come from the right, and they have emphasized the ratchet. Most of you already know about the ratchet, but for those don't, here's the way the argument goes. When realists rule the roost (i.e. have a majority on the Supreme Court), they make realist decisions--shaping the constitution around their personal political ideologies. Now suppose that a formalist majority is appointed to the Court, and that these formalists adhere to the doctrine of stare decisis. They will follow the realist decisions of the predecessors, but decide open questions of law on the basis of the constitutional text and historical evidence of original meaning. Now the pendulum swings again. The realists come back in. They can overrule the formalist decisions, because they don't believe in stare decisis. If this cycle continues, we have a ratchet. Sometimes to make the point perfectly clear, people use the redundant phrase, "one way ratchet." After each realist/formalist cycle, the constitution moves further in the realists' preferred direction. There is something to the ratchet. But ultimately, this argument fails. The rule of law cannot be realized by conceiving of the practice of judging as a war--to be won by one side or the other. The rule of law requires cooperation, and cooperation requires trust. A selective doctrine of stare decisis, which enshrines the good decisions and rejects the bad ones will not foster the depoliticization of the judiciary. Quite the opposite. Such a practice is likely to reinforce the perceptions that avowedly formalist judging is really realism in disguise and that the rule of law is a flag of convenience. The rule of law requires a heavy price from both left and right. Stare decisis is on the bill, and the goods will not be delivered if the price is not paid.
      Neither Left nor Right And so I find that I can turn neither left nor right. On the one hand, I find that I cannot endorse the reasoning of many of the Warren Court decisions. It is tempting. Certainly, there is cover. One can always slip on the coat of law as integrity or don the fedora of a New Deal constitutional moment. And even if one suspects that these garments are the emperor's new clothes, one can take comfort in the company one keeps. On the other hand, I cannot endorse a neoformalism that incorporates textualism and originalism but leaves out the doctrine of stare decisis. There is temptation on that path as well. There may be fewer at the party, but the companionship is all the warmer when one is a member of the brave few. Neoformalism is a lonely road. I have been going that way for a while, and if you are like me, you know that there is not much company. Balkin thinks that neoformalism is the easy path, but he does not see beyond the first curve in the road.
    Third Interlude California Highway 127, Twilight. As the light fails, whites, reds, and browns fade to gray. This really is a lonely road. No one heading south. No one heading north. Not even an old homestead on the side of the road. I listen to old-time radio--a complicated murder story. Edward G. Robinson is a professor who gets involved in a murder somewhere out in the countryside. It makes me nervous. The signal fades, and I am truly by myself. Random memories succeed, one upon another. Childhood. My sister's room. Her favorite book. Humpty Dumpty:
      As I was saying, that seems to be done right -- though I haven't time to look it over thoroughly just now -- and that shows that there are three hundred and sixty-four days when you might get un-birthday presents --'
      `Certainly,' said Alice.
      `And only one for birthday presents, you know. There's glory for you!'
      `I don't know what you mean by "glory",' Alice said.
      Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
      `But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
      `When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
      `The question is,' said Alice, `whether you can make words mean so many different things.'
      `The question is,' said Humpty Dumpty, `which is to be master -- that's all.'
    The Defense of High Politics In theoretical debates, you have to play both offense and defense--although as the saying goes, the best offense is . . . So I am not surprised the Balkin focused on what he saw as the weaknesses of neoformalism and avoided most of what I said about high politics. In particular, Balkin had little to say about my most serious argument--that constitutional decision according to high politics is not decision according to law. And as a consequence, high politics is not cure for the downward spiral of politicization that threatens the rule of law. But he says enough for me to move the ball forward. Here goes.
      Balkin's Big Move But Balkin did have something very important to say in reply. Here it is:
        Now, there's another very important side to Larry's post, and it has to do with he thinks are my own views about judging in constitutional cases. Larry thinks that what I am advocating is simple lawlessness, that I am saying that ultimately it's all politics. He is mistaken about this, and he misreads me in large part because he has too narrow a view of what *legal* argument is. I must confess I don't recognize his theory of neoformalist judging in the actual practices of lawyers and judges in America. My view of legal argument is simply more flexible than his, that's why he jumps incorrectly to the conclusion that I think it's all just politics. But I think that history of the practice one is arguing about counts for something. And the more one studies the actual history of the practices of legal argument about the U.S. Constitution, and the ways in which our Constitutional law has actually developed, the more one discovers that these practices are much much more flexible that Larry's model of good judging permits. A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct. But that discussion will have to wait for another post.
      If you read my last post closely, you will realize that Jack has made exactly the move that I predicted he would. I offered neoformalism as a normative theory. Balkin is arguing that neoformalism is inadequate as a descriptive theory of constitutional practice. And once again, Balkin exaggerates. Precedent, text, and history are the bread and butter of ordinary constitutional argument. Indeed, once you think about it, you will realize that Balkin faces some important obstacles if he wants to make out the claim that high politics provides an adequate account of the practice of constitutional adjudication from the internal point of view. It is an embarrassment for Balkin that the Supreme Court almost never says anything about "high politics" in its opinions. In fact, if you read the opinions, they almost all pay homage to formalist constitutional methodology. But Balkin has an out. He can say that this is all window dressing. Balkin tells us that if we were at the conferences, we would learn that the Justices are very much in the high political mode when they deliberate. And even if they were more circumspect in conference, Balkin would still have a perfectly good move left. Balkin can argue that only high politics can really explain the decisions of the Warren Court. And while that claim is exaggerated, it surely contains much truth. It is a commonplace of conservative criticism of the Warren Court legacy that many of the Court's decisions were essentially political in nature.
      Is High Politics Law? Oh oh. It looks like Balkin is on to something. When Balkin says "I think that history of the practice one is arguing about counts for something. And . . . these practices are much much more flexible that Larry's model of good judging permits," he looks to be making a sound move. Indeed, he is making the kind of Wittgensteinian move that allowed H.L.A. Hart to get the whole enterprise of contemporary analytic jurisprudence off the ground. How can I say that high politics is not law? Do I really think that Miranda isn't law? And not just Miranda, but a whole hose of Warren and Burger Court decisions? But of course, that is not what I am saying. My claim wasn't that decisions made on the basis of high politics are not law. Miranda is still good law. In fact, given my view of stare decisis, it not only is law, it should remain law. If that is what Balkin's argument amount to, then it is simply nonresponsive. So what else could Balkin mean?
      Is Decision on the Basis of High Politics Decision on the Basis of Law? So Balkin must be making a more ambitious claim. Perhaps he is arguing that decision on the basis of high politics is decision on the basis of law. If this is his claim, then is his argument valid? Obviously not. If we were to discover that from 1872 through 1897, the Supreme Court decided many constitutional cases on the basis of a flip of a coin, those decisions would still be law. No question about that. But would they be decisions made on the basis of law? Well, no. So are decisions on the basis of high politics decisions on the basis of law? In order for that to be the case, Balkin would need to claim that the political ideologies of Supreme Court Justices are law. But now his own argument turns against him. Because the practice is not to treat the ideologies of the justices as law. Put aside the practical problem that the various Justices have complex ideological views that do not easily sum into a single coherent whole. Even if there were something that we could call the high political ideology of the Supreme Court, it isn't law. Only those portions of the ideology that have been translated into decisions are law. OK. Perhaps that is what Balkin means? But again, no, for two reasons. First, this would mean that the first decision to embody a particular ideology was not based on law. Second, the decisions are nothing other than the precedents, and if Balkin has made anything clear it is that he is claiming that decision according to law is not limited to decision according to precedent. And so? And so, Balkin cannot make out the claim that decision on the basis of high politics is decision on the basis of law.
      Is Decision According to High Politics Legitimate? But perhaps Balkin misspoke or perhaps I have misinterpreted him. Because if we look closely at his argument, we find that this is the conclusion: "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct." A ha! Why didn't I see this before. Now I think I get what Balkin is up to. And I'm worried. Very worried. Because Balkin has just made one of the most famous (and famously slippery) moves in all of contemporary jurisprudence. This is Dworkin's Patented Triple Action Is to Ought Super Slide. Here is how it works. Step One: To understand a practice, we must take the internal point of view--looking at the practice from the inside. Step Two: Once inside, we must interpret the practice to be the best that it can be. Step Three: Having interpreted the practice from the vantage point of Step One according to the criterion provided by Step Two, it follows that the practice cannot now be regarded as illegitimate. Damn. I've come so far. I thought I had Balkin, but now, at the very end, he pulls a Dworkin on me. What I am supposed to do now. I could Raz Balkin, but there is no way to Raz someone in a blog. It takes way too long. I'm just going to have to let him get away with the Dworkin, but get around it somehow. But how?
      The Implications of the Interpretive Turn So what are the implications of Balkin's interpretive turn? What happens if we accept Balkin's assertion that "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct." Hmm. This seems to translate into, any feature of the practice of judging that is so pervasive that it accounts for much of the history of the practice is legitimate. Whoa! That has interesting implications. I can feel a reductio coming on, but that would be taking a cheap shot. Here is a more elegant piece of argumentative ju jitsu. Balkin's interpretive turn commits him to the proposition that neoformalism is legitimate if the history of the practice of constitutional adjudication includes a great deal of neoformalism. Now Balkin keeps denying that this is the case, but it takes only a moment’s reflection to realize that he couldn't really have meant that. Of course, an awful lot of the ordinary run-of-the-mill constitutional decision making (even by the Supreme Court) is neoformalist. Courts follow constitutional precedents all the time. And that means that neoformalism is, according to Balkin, a legitimate method of constitutional adjudication. Given that two methods of constitutional adjudication are "legitimate" in the sense that they are "much of the history of the practice" of constitutional adjudication, does it make sense to ask the question, should we use both of these methods or is one better than the other? Well, yes. That is a perfectly sensible question. And that brings me round to the arguments I made in A Neoformalist Manifesto, arguments that Balkin has yet to answer. The rule of law provides a very great good. High political constitutional adjudication threatens the rule of law. Neoformalism preserves it.
    Gonzo Jurisprudence But before I close, I must tell you that I find Jack Balkin's work to be amazing, stimulating, exciting, interesting, and maddening. Balkin opens my eyes, even if he makes me see red. Sometimes Balkin's arguments lack logic and proportion, but Balkin is willing to take positions that would make other tremble, and he defends those positions with arguments that take your breath away. Without Jack Balkin, we wouldn't have gonzo jurisprudence.
    Coda California Highway 178, West of Shoshone. Night. I made the turn just before Shoshone--really just a crossroads and a general store. I'm on 178, driving through the hills. Random thoughts, once again. Driving to Vegas. Gonzo. Hunter S. Thompson. Fear and Loathing. Then back to Balkin. Thinking about Balkin's arguments. I am in a sea of black landscape and brilliant stars, my car goes round a bend and comes out on the other side of a hill. And there it is, the orb, hanging low and white in the sky, with that lopsided face grinning at me. I push the search button on the radio, and something extraordinary happens. The gritty alto voice of Grace Slick fills the still desert air. If you are very quiet, you can still hear her voice echoing:
      Go ask Alice. I think she'll know.
      When logic and proportion have fallen sloppy dead,
      And the white knight is talking backward,
      and the red queen's off with her head,
      Remember what the dormouse said:
      "Feed your head! Feed your head!"