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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Monday, June 30, 2003
An Egalitarian Theory of Judicial Review Ronald C. Den Otter's article DEMOCRACY, NOT DEFERENCE: AN EGALITARIAN THEORY OF JUDICIAL REVIEW just became available on Westlaw and at 91 Ky. L.J. 615. Here is a taste:
    This Article contends that we should not rely so heavily on the judiciary to settle our moral conflicts, although not for the typical reasons mustered by democratic critics of judicial review. We have not openly confronted this problem of taking the Constitution away from the people because the debate over the proper scope of judicial review has been framed too narrowly, leaving us with two undesirable extremes. On the one hand, those who defend the exercise of judicial review call attention to the need for those with special competence to assess legislation that is constitutionally suspect. Undemocratic means, they insist, may be entirely appropriate to protect the substantive values that make the operation of constitutional democracy possible. After all, ordinary citizens may not be sufficiently aware of the constitutional and moral implications of their collective decisions. In such instances, judges must have veto power over popular choices to control the vagaries of democratic politics, thereby saving the people from themselves. On the other hand, those who seek to restrict the reach of judicial review in the name of democracy, such as Robert Bork, Antonin Scalia, and William Rehnquist, contend that the people or their elected representatives should decide the vast majority of questions concerning public morality. They point out that an activist approach to constitutional interpretation ultimately rests on an elitist rationale: that ordinary citizens cannot be expected to exercise political power responsibly.
Get it while its hot.

New Papers on the Net Here is today's roundup:
    Miranda McGowan (Minnesota) and James Lindgren (Northwestern) upload Untangling the Myth of the Model Minority. From the abstract:
      The model minority stereotype depicts Asian Americans as a group that has succeeded in America and overcome discrimination through its hard work, intelligence, and emphasis on education and achievement - a modern-day confirmation of the American Dream. A large body of work by Asian critical scholars condemns this image and charges that it conceals more sinister beliefs about Asian Americans and other racial minorities in America. Is this critique correct? Does the model minority stereotype really mask hostility toward Asian Americans or breed contempt for other minorities? This article presents the results of an empirical study into the model minority stereotype. Using 1990, 1994, and 2000 General Social Survey data (including some of the very data used by critical scholars to establish the existence of this stereotype), we confirm claims that some non-Hispanic white Americans think that Asian Americans as a group are more intelligent, harder working, and richer than other minorities and that some think Asian Americans are more intelligent and harder working than whites. But we also discovered that these ideas are not usually linked with negative views of Asian Americans (or of other minorities, for that matter). Indeed, we found weak support for the contrary position - that those who rate Asian Americans higher than other minorities, or particularly higher than whites, are more likely to hold other positive views about Asian Americans, immigration, African Americans, and government programs supporting these groups. Our study nonetheless confirms the scholarly suspicions in one crucial respect: non-Hispanic whites who have positive views of Asian Americans are less likely to think that Asian Americans are discriminated against in both jobs and housing, thus tending to support the claims of some Asian critical scholars that positive stereotypes about Asian Americans tend to be associated with a failure to recognize continuing discrimination. In these data, however, this complacency by whites about prejudice against Asians does not translate into hostility toward government programs to alleviate the problems of Asian or African Americans.
    David McGowan (Minnesota) posts Website Access: The Case for Consent, forthcoming in the Loyola-Chicago Law Journal. Here is the abstract:
      This paper presents a Coasean defense of the use of the trespass to chattels tort to regulate access to websites and private networks connected to the Internet. Consent to use should be presumed from the owner's choice to connect a site or network to the Internet. In most cases, however, owners should be able to stop unwanted uses by notifying a user that the owner objects to particular uses. The trespass to chattels tort provides courts a doctrinal basis to enjoin uses to which an owner does not consent. Injunctions facilitate bargaining. Because transaction costs are low in such cases, bargaining will better approximate the optimal social equilibrium of uses than would alternative regimes, such as judicial management of access through the doctrine of nuisance. There may be cases where utilitarian analysis suggests deviating from this approach, but they would be the exception, not the default. This paper also takes issue with the prevailing critique of the trespass tort. The basic premise of the prevailing critique is that chattel are different from real property because the law recognizes an interest in holding real property free from harmless intermeddling but does not recognize such an interest for chattel. The Restatement of torts says just the opposite, however, a point the prevailing critique does not acknowledge. The difference between real property and chattel is that the law provides a cause of action for harmless intermeddling with the former, and provides only a privilege to use self-help to protect the latter. When the interest in being free from even harmless intermeddling is taken into account, the prevailing critique reduces to the proposition that courts should not recognize new torts even when legally recognized interests are violated and the means the law expects to protect those interests fail to do so. That proposition is excessively formal and provides no normative basis for criticizing the doctrine.
    Avi Ben-Bassat (Hebrew University of Jerusalem, Economics) and Momi Dahan (Hebrew University of Jerusalem, Public Policy) post Social Rights in the Constitution and in Practice. Here is the abstract:
      This paper presents a new data set on constitutional commitments to social rights for 68 countries. Quantitative indices are constructed for five social rights: the right to social security, education, health, housing and workers rights. The right to minimal income (social security) appears in the constitution of 47 countries with relatively moderate constitutional commitment, while only 21 countries make a commitment to housing. We use these measures to characterize a typical constitution with respect to social rights. We find two clear groups: Countries which share the tradition of French civil law generally have a higher commitment to social rights than those that share the tradition of English common law. The constitutional commitment to social rights in socialist countries is closer to French civil law, whereas countries with a German or Scandinavian tradition resemble the English common law countries more closely. We then explore whether the constitutional commitment to social rights, in addition to other key control variables such as democracy and GDP per capita, has any effect on government policy. We find that the constitutional right to social security has a positive and significant effect on transfer payments. The constitutional right to health has a positive and significant effect on health outcome only when it is measured by infant mortality and life expectancy at birth. The right to education seems to have no (or negative) effect, however.
    Scott Meinke (Bucknell, Political Science) and Edward Hasecke (Cleveland State University, Political Science) post Term Limits, Professionalization, and Partisan Control in U.S. State Legislatures, forthcoming in the Journal of Politics. From the abstract:
      As states across the country have adopted term limits provisions for their state legislatures, political scientists have analyzed how mass unseatings of incumbents are affecting legislative composition, capacity, and activity. Yet this reform may impact legislatures not only directly through forced retirements, but also indirectly by changing the incentives to prospective candidates. Following hypotheses suggested by Fiorina (1994, 1996), we argue that term limits have changed the incentive structure for typical Democratic candidates in some legislatures. This change in incentives has, in turn, affected the partisan composition of statehouses just as the professionalization movement affected incentives and partisan composition a generation ago. We provide quantitative evidence that supports Fiorina's conjectures about term limits, suggesting that the presence of term limits provisions creates an environment that is less attractive to Democratic candidates.
    Daveed E. Gartenstein-Ross uploads A Critique of the Terrorism Exception to the Foreign Sovereign Immunities Act . From the abstract:
      While the Foreign Sovereign Immunities Act generally prevents foreign states from being the subject of lawsuits in U.S. courts, countries that have been designated as state sponsors of terrorism by the Secretary of State are exempted from this protection. Judgments entered under this "terrorism exception" already total more than $4 billion, with a number of suits still pending. These judgmetns may pose difficulties for the United States by shifting foreign policymaking power from the executive to the courts, encouraging retaliatory legislation, provoking hostility internationally, and posing barriers to normalization of relations with defendant states. In this Note, Daveed Gartenstein-Ross argues that, because the costs of the terrorism exception are substantial and the benefits minimal, the terrorism exception is a harmful piece of legislation. He explores alternatives policies that the United States can pursue.

Buck on Lawrence Surf here for Stuart Buck's commentary on The Buck Stops Here.

Seltzer on New Top Level Domains I seem to be in cyberlaw mode today! Surf over to for more on the decisions made in Montreal by ICANN on new top level domains.

Trespass to Chattels & the Internet: RIP? The use of the tresspass to chattels tort as a device to enforce rights on the Internet has been hugely controversial. The California Supreme Court has reversed the California Court of Appeals decision in Intel Corp. v. Hamedi (see also the trial court decision). Here is a link to the California Supreme Court decision. And here is a taste:
    After reviewing the decisions analyzing unauthorized electronic contact with computer systems as potential trespasses to chattels, we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning.
Potential SCOTUS nominee Jance Brown wrote a dissent. Here is a taste:
    Candidate A finds the vehicles that candidate B has provided for his campaign workers, and A spray paints the water soluble message, “Fight corruption, vote for A” on the bumpers. The majority’s reasoning would find that notwithstanding the time it takes the workers to remove the paint and the expense they incur in altering the bumpers to prevent further unwanted messages, candidate B does not deserve an injunction unless the paint is so heavy that it reduces the cars’ gas mileage or otherwise depreciates the cars’ market value. Furthermore, candidate B has an obligation to permit the paint’s display, because the cars are driven by workers and not B personally, because B allows his workers to use the cars to pick up their lunch or retrieve their children from school, or because the bumpers display B’s own slogans. I disagree.
Here are some additional resources:

Barnett on Lawrence and the Thomas Dissent Surf over to the Conspiracy here and go to NPR for Real Audio here for Randy Barnett's analysis of Justice Thomas's dissent in Lawrence.

Saturday, June 28, 2003
Copyright and "the Progress of Science" Stripped of the references to patent, the copyright clause of the constitution would read: "Congress shall have Power To promote the Progress of . . Science . . . by securing for limited Times to . . . Authors. . .the exclusive Right to their respective . . . Writings." Via David Post of the Conspiracy, I learned that there is a campaign to strip science out of the protection of the copyright laws. Here is an exerpt from the description of the Public Library of Science Campagin:
    PLoS is promoting a new model for scientific publishing – where all scientific and medical publications would be freely available to read and use through online public libraries of science.
And as we all know, the entertainment industry has promoted the idea that copyright does include all artistic expression--whether related to the progress of science or not. Of course, the 18th century term "science" was broad, encompassing all forms of systemic knowledge, including logic, philosophy, and what we call the social sciences and humanities, but it certainly did not encompass pure entertainment. Most of what was copyrighted in the late 18th century was scientific in the broad sense, charts, maps, and learned treatises. What does this mean? I'm not sure, but I do know that the copyright power today is only a distant cousin of the power as originally conceived.

Harry Potter and the International Order of Copyright Tim Wu has a nice piece on Slate on character appropriation. Here is a taste:
    You might think it a good thing that Rowling can stop the Potter cloning industry, whether it is in Brighton, Bangalore, or Bratislava. Who wants to see Harry turned into a hairy troll or forced to gallivant with foreign literary figures? But on closer examination the argument for letting Potter crush his international competition is quite weak. The case for preventing literal copying—in which a foreign publisher simply reprints a work without permission—is strong. But Potter follow-ons are different from the American Dickens piracy of the 19th century and DVD piracy of today. Literal copies are what come out when you use a photocopier. Potter's takeoffs are different: They either borrow characters and put them in a new, foreign context (Potter in Calcutta) or just use the themes and ideas of Potter (as in Tanya Grotter's case) as inspiration for a different kind of story. They aren't a direct replacement for a Potter book, the way a literal copy is, but rather a supplement or an adaptation.
Courtesy of Eugene Volokh.

Bloggers as Citizens Check out this post on Philosophy.Com.

Friday, June 27, 2003
New Papers on the Net Here is today's roundup:
    E. Sullivan (University of Minnesota, Twin Cities) posts Judicial Sovereignty: The Legacy of the Rehnquist Court, forthcoming in Constitutional Commentary. From the abstract:
      This review of John Noonan's book applauds the author for his careful, penetrating analysis of the Rehnquist Court's federalism theme. According to Narrowing the Nation's Power, the Rehnquist Court has rewritten the Constitution to advance federalism beyond anything recognizable in history. While Judge Noonan did not intend his book to be a close doctrinal analysis of all the Supreme Court's federalism cases in the past ten years, this review of the book brands the Court's work as "revisionism." This review asserts that the Supreme Court is engaged in judicial activism as it rewrites history in order to shift power back to the states at the expense of democratic principles and congressional prerogatives. The review goes beyond Judge Noonan's book by also analyzing Tenth Amendment cases as part of the larger rearticulation of federalism as an overarching constitutional and political doctrine. The review concludes that "while judicial review may have been the means to achieve the Court's federalism goals of strengthening the rights of others at the expense of Congress, ultimately the larger judicial and political shift, as ably demonstrated by Judge Noonan, has been structured - judicial supremacy over Congress' sovereignty and democratic values."
    Victor Fleischer (Columbia) and Geoffrey Smith (Ascent Group, LLC) post Columbia Venture Partners - MedTech Inc. From the abstract:
      This case study is a teaching exercise that was first used in the "Deals Workshop" seminar at Columbia Law School in April 2003. The case involves a potential investment by Columbia Venture Partners, a venture capital fund, in MedTech Inc., an emerging developer of medical devices for the cardiovascular market. The case offers an opportunity to examine the relative importance of various terms in typical venture capital contracts, such as valuation, liquidation preference, conversion rights, board representation, tag-along and drag-along rights, and vesting. The case also illustrates the use of negotiation tactics, including the use of "market" or industry standards, efficient risk allocation, and how to bring other objective criteria into the discussion.
      The case includes a teacher's manual followed by a background memo and term sheet intended for distribution to the students.
    Thomas Ulen (Illinois) posts Money and Politics: A Review of Ackerman & Ayres, Voting with Dollars, forthcoming in the University of Illinois Law Review. From the abstract:
      In Voting with Dollars Bruce Ackerman and Ian Ayres of the Yale Law School propose a new method of financing federal election campaigns. First, Ackerman and Ayres criticize what they call the "old paradigm" of campaign finance reform - one that relies on limiting the amount of money that individuals and organizations can donate and directs a modest amount of public money toward candidates for federal office. Their view is that these methods of command-and-control regulation are bound to fail in their goal of limiting the baneful influence of private money on federal campaigns and, thereby, on public policy. Then, Ackerman and Ayres argue in favor of two related reforms: a Patriot-dollar account that every registered voter may allocate to candidates and a secret donation booth for private contributions to candidates for public office.
      This review finds much to admire in the Ackerman-Ayres reform proposal. But it criticizes some minor administrative details of the reforms and raises two broader concerns: that the injection of up to $5 billion in public money into each campaign cycle might lead not to more deliberative democracy but to even more mind-numbing, trivial campaigns and that the amount of private money in federal campaigns may not be, after all, so large as to excite concern.
    Richard Frase (Minnesota) posts Limiting Retributivism: The Consensus Model of Criminal Punishment, forthcoming in THE FUTURE OF IMPRISONMENT IN THE 21ST CENTURY (Michael Tonry, ed., Oxford Univ. Press 2003). From the abstract:
      This paper argues that Norval Morris' theory of limiting retributivism should be recognized as the consensus model of criminal punishment. Some version of Morris' approach is embodied in the current sentencing regimes of almost all American states, even sentencing guidelines regimes expressly founded on a Just Deserts model, and in many nations, both in common law and civil law legal systems. Limiting retributivism is popular with practitioners, and makes good sense as a matter of policy, because it strikes an appropriate balance between the conflicting punishment goals and values which are recognized in almost all western countries. The theory accommodates retributive values (especially the importance of limiting maximum sanction severity) along with crime-control goals such as deterrence, incapacitation, rehabilitation, and denunciation. It also promotes efficiency, and provides sufficient flexibility to incorporate victim and community participation, local values and resource limitations, and restorative justice programs. Recognizing and promoting a consensus model based on Morris' theory would have considerable value; the theory enjoys widespread support, provides a principled basis to resist persistent political and media pressures to escalate sanction severity, and gives researchers and sentencing policy makers in diverse systems a common framework within which to compare, evaluate, and reform sentencing practices.
    J. Maurits Barendrecht (Tilburg University) posts Cooperation in Transactions and Disputes: A Problem-Solving Legal System? From the abstract:
      Prevention of harm, distribution (compensation, risk allocation, or redistribution of income) and controlling administrative costs are the generally accepted goals of the civil justice system. Is optimal cooperation, defined in this paper as using the problem-solving method of negotiation, a valuable fourth goal? If the legal system can successfully support problem-solving negotiations, without endangering other objectives, this is likely to lead to creation of value in terms of the preferences of the parties, to reductions in the costs of dispute resolution, and probably also to lower costs of transacting. Thus, optimal cooperation in the problem-solving manner seems to be a goal that is consistent with the perspective of welfare economics, in which the well-being of individuals is the criterion for normative evaluation.
      The net benefits of accepting this objective will depend on how the legal system can actually support problem-solving. This article discusses seven possible areas of implementation. A legal system attuned to problem-solving will be more open towards different types of interests and will stimulate the parties to find creative value-maximizing solutions. The perspective of problem-solving underlines the need to improve access to court, and more in general to reduce bargaining ranges by enhancing the way the legal system provides 'batnas'. If this is done, distribution of value will become easier and the effects of bargaining power can be diminished. Stressing the use of objective criteria, the perspective contains an invitation to redesign the rules of substantive private law so that they give better help to the negotiating parties when they deal with distributive issues. Useful objective criteria for distributive issues may be continuous instead of binary. Multiple objective criteria can exist next to each other. They do not have to be binding, but can be adjustable to individual differences in valuation of interests, different ways of creating value, and dissimilar external circumstances. The perspective of problem-solving also invites us to rethink the processes of contracting and dispute resolution, the role of blaming, and the principle of autonomy. Although many of the proposals suggested by this perspective are not new, it may help to develop a more coherent vision on reform of the civil justice system.
    Timo Goeschl (Cambridge, Land Economy) and Timothy Swanson (University of London, University College, Economics) post On Biology and Technology: The Economics of Managing Biotechnologies. From the abstract:
      This paper considers those sectors of the economy that operate under the same regimes of rewarding private innovators as others, but differ in that they face recurring problems of resistance, as occur in the pharmaceutical and agricultural industries. This recurrence originates in the natural processes of selection and evolution among humanity’s biological competitors. The paper examines the capacity for decentralised patent-based incentive mechanisms to result in socially optimal outcomes in these sectors under scale- and speed-dependent evolution of pathogens. It demonstrates that there is a fundamental incompatibility between the dynamics of the patent system and the dynamics of the resistance problem under both types of evolution. Under scale-dependent evolution, the externalities within a patent-based system indicate that decentralised mechanisms will result in systematic underinvestment in R&D that decreases further with an increasing severity of the resistance problem. Under speed-dependent evolution, a patent-based system will fail to target socially optimal innovation size. The overall conclusion is that patent-based incentive mechanisms are incapable of sustaining society against a background of increasing resistance problems. The paper concludes with appropriate policy implications of these results.
    Jonathan Kahn (University of Minnesota, Center for Bioethics) posts What's the Use? Law and Authority in Patenting Human Genetic Material, forthcoming in the Stanford Law & Policy Review. From the abstract:
      Most analyses of the relationship between intellectual property and genetics have focused on important but relatively discrete policy debates about when or whether genetic information should be patented. This article aims to delve beneath the surface of such debates to unearth and interrogate unarticulated themes and assumptions that implicitly reconstruct existing understandings of personhood, citizenship, and authority in terms of genetic discourses. Where the domains of science and the market intersect in patent law, genetic identity and property intertwine, each informing and to a degree becoming a function of the other. As experts in the natural and social sciences construct human identity at the molecular level, venture capital is making deals with these same professionals to manage and transform that identity into marketable products subject to patent rights. Genes are thus becoming sources both of identity and of property, concepts basic to historical constructions of American citizenship Contemporary discourses of genetics and rights may be currently reshaping understandings of citizenship to the extent that the legal identity of the individual is implicated in and constructed through a relationship to her genetic material. The first step toward understanding and analyzing the nature of this relationship is to explore how genetic material itself is identified and defined within the domain of legal discourse. Intellectual property law provides a primary site for this exploration because, more than most other areas of the law, it deals explicitly with defining the nature and legal status of human genetic material. This article explores the patenting of human genetic material as a site where science, the market, and law "situate the self" in the genome in a manner that simultaneously renders it a subject of commerce. As an entry point to this still large area of study, I choose the relatively circumscribed arena presented by the rather heated debates that emerged in 1999 and 2000 around the proposed revisions to the "Utility Examination Guidelines" used by the U.S. Patent and Trademark Office (PTO) in evaluating the validity of patent applications. In examining the debates before the PTO, I aim to show how certain claims, supported by particular models of authoritative knowledge, gain recognition from and access to the power of the American legal and regulatory system while others are marginalized and denied. I argue that the PTO, functioning in a quasi-judicial manner, constructs distinctions between issues of policy and administration as a means to circumscribe the debates over patentability of human genetic material. The boundaries it draws, enables the PTO to bracket and dismiss concerns couched dignitary and religious discourses while recognizing and crediting the more technical arguments of scientific and economic experts.
Other papers of note:

Frist Memo on the Process for Confirming Supreme Court Nominees Courtesy of Howard Bashman:
    To All 100 Senators June 26, 2003 Dear Colleague, In light of numerous letters of colleagues addressing the possibility of a Supreme Court nomination this summer, I wanted to write to outline my expectations of a fair and orderly process for Senate consideration of a Supreme Court nomination if any Justice retires at the end of this Supreme Court Term. First, to perform our obligations to the Supreme Court and the American people, the Senate should act on any nominee within a reasonable time to ensure, if possible, that a new Justice can assume office before the Supreme Court resumes hearing cases this fall. In most instances in the past, the Senate has acted promptly to consider a President's nominee to the Supreme Court. Most recently, for example, both of President Clinton's nominees to the Supreme Court received Senate votes before the Senate's August recess, after receiving Judiciary Committee hearings in July. Consistent with that schedule, if there is a retirement at the end of the Supreme Court's Term and a nomination is submitted shortly thereafter, I anticipate the Judiciary Committee would hold hearings in July and the full Senate would vote on the nomination before the Senate recess in August. Second, the Senate must vote on the President's nominee to either confirm or reject the nominee. The Constitution provides that the Senate shall advise and consent on a President's nominees to the Supreme Court. Since 1789, in accord with the Constitution and to fulfill its Constitutional responsibility, the Senate has consistently afforded Presidential nominees to the Supreme Court a vote of the Senate (except, of course, when the nominee withdrew before a vote). Any tactics to endlessly delay the process and prevent the Senate from performing its Constitutional responsibility to vote on a Supreme Court nomination would be inconsistent with the Constitution and contrary to the Senate's traditional practice for more than 200 years. As Majority Leader, I will work to ensure that a Supreme Court nominee by a President of either party receives a fair up or down vote in the Senate. The Senate has few Constitutional responsibilities as important as exercising its advice and consent on a President's nominee to the Supreme Court. I look forward to working with each of you to ensure a fair and orderly Senate process in the event of a Supreme Court nomination this summer or in the future. Sincerely yours, Bill Frist, M.D.

Volokh on Thomas Surf to Eugene Volokh's column on MSNBC ( for a terrific column on Justice Thomas & the affirmative action cases. Here is a taste:
    Lots of people have criticized Justice Clarence Thomas’ anti-race-preferences opinion (from Monday’s Grutter v. Bollinger decision concerning the University of Michigan Law School’s admissions policy), on the grounds that there’s reason to think that he has benefited from some such preferences. Maureen Dowd in The New York Times has a particularly intemperate expression of this view: “It’s impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.”
    The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn’t a proper basis for constitutional decisionmaking.

Thursday, June 26, 2003
Lawrence v. Texas Decided--Updated at 3:01 PM EDST
    Update Alert Scroll down to the Reporting and Blogospheric Reactions section of the post for a bunch of new links.
    Introduction The Supreme Court has decided Lawrence v. Texas, 6-3 to strike down the Texas statute. Justice Kennedy wrote the majority opinion, stating the law "demeans the lives of homosexual persons." This post, which will be updated periodically, provides basic information on the opinion, reactions, and most especially relevant legal theory resources. From the AP Report on the New York Times:
      The men "are entitled to respect for their private lives," Kennedy wrote. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime," he said. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the outcome of the case but not all of Kennedy's rationale. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.
    A Preliminary Comment I have now read the majority opinion by Justice Kennedy and the principal dissent by Justice Scalia. Here are one or two simple points:
      --The holding is broad and not narrow. As I read it, the Court has established a clear right for gays to engage in sexual acts in private, and by implication, has reaffirmed (or established) a similar right for heterosexuals.
      --The major disagreement between Kennedy and Scalia was about the doctrine of stare decisis. Kennedy needed to argue that reversal of Bowers was consistent with the discussion of the role of precedent in Casey Scalia charges the majority with inconsistency, and devotes a substantial portion of his dissent to Roe v. Wade, clearly weakening the dissent as an intellectual matter.
      --Scalia argues that the majority employed "rational basis scrutiny," but having read and reread Kennedy's opinion, I think this is just plain wrong. Althouigh there is ambiguity, it looks like a fundamental rights decision to me. (Update: Unlearned hand reacts to this here.)
      --The majority relied extensively on historical evidence that homosexuals were not singled out for special treatment by early anti-sodomy laws and on evidence that such laws were rarely enforced (or enforceable under the then-prevailing rules of evidence and criminal procedure.
    Opinions Here are links to the opinions: Excerpt from Justice Kennedy's Majority Opinion
      We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).
      In Griswold the Court invalidated a state law prohibit- ing the use of drugs or devices of contraception and coun- seling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. * * * The Court began its substantive discussion in Bowers as follows: The issue presented is whether the Federal Con- stitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being pun- ished as criminals.
      This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the rela- tionship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in inti- mate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosex- ual persons the right to make this choice.
      Having misapprehended the claim of liberty there pre- sented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae; Brief for American Civil Liberties Union et al. as Amici Curiae; Brief for Professors of History et al. as Amici Curiae. We need not enter this debate in the attempt to reach a defini- tive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
      At the outset it should be noted that there is no long- standing history in this country of laws directed at homo- sexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime- against-nature statutes as criminalizing certain relations between men and women and between men and men. * * * Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convic- tions for which there are surviving records were for preda- tory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. * * * It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. * * * Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding prece- dent. Bowers v. Hardwick should be and now is overruled.
    Excerpt from Justice Scania's Dissent
      I begin with the Court's surprising readiness to recon- sider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention the paean to stare decisis coauthored by three Members of today's majority in Planned Parent- hood v. Casey. There, when stare decisis meant preserva- tion of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it. * * * Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions, ante, at 15; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 16. The problem is that Roe itself which today's majority surely has no disposition to overrule satisfies these conditions to at least the same degree as Bowers. * * * The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196—the same interest furthered by criminal laws against fornica- tion, bigamy, adultery, adult incest, bestiality, and ob- scenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis addded). The Court embraces instead JUSTICE STEVENS' declaration in his Bowers dissent, that the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational- basis review.
    Reporting Blogospheric Reactions Here are some posts of note: Legal Theory Resources Here are some resources on the issues of moral, political, and legal philosophy: Bibliography
      John M. Finnis, Law, Morality, and `Sexual Orientation,' 69 NOTRE DAME LJ 1049, 1066-67 (1994).
      Stephen Macedo, "Homosexuality and the Conservative Mind," and "Reply to Critics" (Robert George and Gerard Bradley, and Hadley Arkes), Georgetown Law Journal, v. 84 (December 1995).
    Links to the Record

Lazarus on Equal Protection Edward Lazarus has a Findlaw column entitled The Supreme Court And Equal Protection: Why This Term's Momentous Affirmative Action and Same-Sex Sodomy Cases Have Put the Doctrine To the Test. Read it!

Dorf & Adler Michael Dorf (Columbia) and Matthew Adler (Pennsylvania) have posted Constitutional Existence Conditions and Judicial Review. Here is the abstract:
    Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision of Article II, Section 2), has no legal existence. A judge who disclaims the power of judicial review nevertheless "enforces" Article I, Section 7 when he finds that a putative statute is (or is not) an enactment of Congress that he must take account of. We contrast existence conditions with "application conditions" that limit the legal force of a proposition of nonconstitutional law by some means other than vitiating the status of that proposition as law. For example, absent payment of just compensation, the Takings Clause would block the application of an otherwise valid statute such as the Endangered Species Act to a privately owned parcel of land if the impact of that application were to destroy all economically viable use of the parcel. Judicial enforcement of application conditions is not entailed by the enforcement of ordinary sub-constitutional law, even though judicial non-enforcement of application conditions might be unwise. After setting forth the conceptual distinction between existence and application conditions, we argue that many familiar constitutional provisions and doctrines - including the scope of enumerated powers and some individual rights - are best read as existence conditions and are thus necessarily judicially enforced. We then reconcile that observation with a variety of doctrines - including the political question doctrine, the enrolled bill doctrine, and the rational basis test - that seem to authorize the courts not to enforce or to "under-enforce" existence conditions. We argue that these doctrines should be understood in some instances as granting epistemic deference to non-judicial interpreters of the Constitution and in other instances as reflecting the fact that some constitutional provisions and doctrines are "perspectival" - that is, they have different content for different addressees.

Korsgaard and Parfit Christine Korsgaard (Harvard, Philosophy) has posted a paper entitled Normativity, Necessity, and the Synthetic a priori: A Response to Derek Parfit. From the abstract:
    If I understand him correctly,Derek Parfit ’s views place us, philosophically speaking, in a very small box.According to Parfit,normativity is an irreducible non-natural property that is independent of the human mind.That is to say,there are normative truths -truths about what we ought to do and to want,or about reasons for doing and wanting things.The truths in question are synthetic a priori truths,and accessible to us only by some sort of rational intuition.Parfit supposes that if we are to preserve the irreducibility of the normative,this is just about all we can say,at least until we bring in some actual intuitions to supply the story with some content.

New Papers on the Net Here is the roundup:
    Christopher Fairman (Ohio State) posts The Myth of Notice Pleading, forthcoming in the Arizona Law Review. Here is the abstract:
      This Article challenges the prevailing rhetoric of notice pleading in the federal courts. By examining the reality of pleading practice in eight diverse substantive areas (ranging from antitrust to defamation, negligence to RICO), a rich continuum of fact-based pleading requirements emerges. The scholarly literature, however, largely ignores what federal courts require under this vast umbrella of "heightened pleading." This Article uncovers narrowly-targeted forms of fact-pleading, more broad-based particularity mirroring the standard used in fraud claims, and even "hyperpleading"—mandating virtually every element of a claim be pleaded with particularity. From this micro-examination of pleading, the Article develops the first contemporary model of pleading based on actual federal practice: the pleading circle. Contrary to the notice pleading myth, current practice is not a simple binary choice: fact-based pleading for fraud; notice pleading for everything else. Rather, there is a spectrum beginning with the factless and universally rejected "conclusory allegation." Simplified notice pleading follows. The varieties of heightened pleading are next with their increasing particularity requirements. Ultimately, pleadings reach the point of prolixity and the same fate as its conclusory cousin. The Article also explores potential explanations for the disconnect between notice pleading rhetoric and reality. One overriding conclusion emerges—notice pleading as a universal standard is a myth.
    Lionel Smith (McGill) posts The Motive, Not the Deed, forthcoming in MODERN LAW OF REAL PROPERTY AND TRUSTS - ESSAYS FOR EDWARD BURN. From the abstract:
      The fiduciary's duty of loyalty has been subjected to a great deal of analysis. That analysis usually focuses on the distinctive proscriptive rules, which forbid the fiduciary from being in a conflict of interest and related situations. This paper argues that in order to understand what is truly distinctive about fiduciary obligations, it is necessary to take account of another body of fiduciary law: that which controls the exercise by fiduciaries (such as trustees or corporate directors) of their powers. When the two are considered together, the unique feature of fiduciary obligations becomes clearer. In the vast majority of obligations, in both the common law and the civil law traditions, observance or breach of the duty is judged by whether or not a particular result was brought about, an inquiry which may be associated with a 'standard of care' or an 'intensity' of the duty. What is unique about the fiduciary obligation of loyalty is that its observance or breach depends on the motive with which the fiduciary acted. The control of fiduciary powers follows a model of analysis which is much closer to the judicial review of administrative action than to the law of negligence. Once this is understood, the strict proscriptive rules which forbid conflicts of interest can be better analysed as protecting the beneficiary of a fiduciary obligation from the burden of proving an improper motive. The fiduciary must not only act with the proper motive; he must be seen so to act, and so he is forbidden to be in situations of conflicting motivational pressure.
Other papers of interest:

Wednesday, June 25, 2003
Eve Tushnet on Stare Decisis Check out her post here. Tushnet has a really excellent post replying to my three part series on stare decisis (Part I, Part II, Part III). I will post a reply in a day or two.

Blogging from Montreal: Part 7
    Introduction It is Wednesday afternoon at the ICANN meeting in Montreal. Louis Touton has the podium, and is presenting the RFP Draft for a very limited number of new "sponsored Top Level Domains." How limited? Here is the language from the draft:
      This RFP is only open to those entities listed in Appendix B, or affiliates or successors of those entities as defined below, who applied in Fall 2000 to ICANN as sponsors for a new sTLD.
    The Winners and the Losers And just who might that be? You can surf here and figure it out for yourself, but it looks like this is the list:
      --The World Health Organization (.health).
      --International Air Transport Association (.travel).
      --International Confederation of Free Trade Unions (.union).
      --Universal Postal Union (.post).
      --Nokia (.mobi).
    Although I may have missed some qualifiers, the number is clearly very small. And who are the losers? Everyone who was not proposing a "sponsored" TLD in the 2000 round. And who is that? Among others it is ICM, which seeks to create a sponsored TLD for adult content. And, of course, everyone who proposed a competitor to .com.
    Just What Is A Sponsored TLD Anyway? Heck if I know, but here is what the draft RFP says:
      The following characteristics, among others, should be present in an sTLD:
        (a) registrations must be limited to registrants from a well-defined and limited community, including members of a Sponsoring Organization (if indeed the Sponsoring Organization is a membership organization); (b) the scope of activity and the limits of registrations must be circumscribed by a clear charter; (c) in a hierarchical policy environment, the charter must clearly define which policy responsibilities are delegated from ICANN to the Sponsor; (d) open and transparent structures must be in place that allow for orderly policy development and the ability of members and registrants to influence the policy development and implementation process and for the Sponsoring Organization to be receptive to such influence; and (e) the Sponsor must commit to adhere to ICANN policies as they may change from time to time through consensus processes.
    Wow! This is quite wierd. Take for example the requirement for "open and transparent structures." Why should ICANN be in the business of dictating the internal policymaking structure of entities like the World Health Organization? If WHO has opaque decision making structures, that is the business of the United Nations, not ICANN! This whole enterprise is fundamentally flawed.
    Evaluating the Proposed "Montreal" Round What should we make of this very limited plan for expansion of the root? Certainly an argument can be made that this is a part of an absurdly slow process of root expansion. But how could expansion move more quickly at this stage of the game? Here are some possibilities:
      --A big bang market-driven expansion, e.g. an immediate auction of several hundred or several thousand new TLDs.
      --A steady-state market-driven expansion, e.g. a commitment to the auctioning of a few dozen new TLDs per year.
      --An open-ended beauty contest, e.g. a repetition of the process followed in the year 2000.
    But are any of these options realistic? I cannot imagine that any of these options for rapid expansion is either realistic or desirable. The ICANN board and community is simply not yet ready for a market-driven approach to root expansion. No one wants a repetition of the year 2000 process. Beauty contests are simply the worst possible mechanism for expansion of the root.
    Next Steps So what is ICANN to do? Given Stuart Lynn's legacy (the commitment to creating a small number of new sponsored Top Level Domains through a beauty-contest mechanism, it is not clear that ICANN has many feasible options. If the Lynn proposal were expanded, there would be a real danger of lock-in to a beauty contest mechanism as a template for future root expansion. Perhaps ICANN could simply abandon the Lynn proposal, but that would mean no expansion of the root. What is really needed is a fundamental rethinking of root allocation policy. And ICANN needs help in that enterprise. At a minimum, ICANN nees input from economists and policy scientists familiar with similar resource allocation problems--such as those faced by the Federal Communications Commisssion.
    The Long Run And in the long run, the root resource should be put to its highest and best use. The best way to accomplish that goal is by conducting regular auctions of a significant number of slots, as Karl Manheim and I have proposed in An Economic Analysis of Domain Name Policy.
    Guide to Blogging from Montreal Posts.

Yin on the Affirmative Action Cases Surf here for a good post by lawprof Tung Yin.

Blogging from Montreal: Part 6 There is a very nice post from nhklein on ICANN Watch, touching both on whois and on the difficulties with establishing the ccNSO (the supporting organization for ICANN that consists of the various entities that operate ccTLDs. This is surely one of ICANN's most difficult problems, and in my opinion it stems from a fundamental ambiguity in the nature of ICANN. Here is quote from the post:
    One European ccTLD manager put it bluntly: “We are not under the law of California!”
And from the point of view of the ccTLDs what could be more obvious. ccTLDs, by nature, are primarily responsible to constituencies and laws within their national (or other designated regional) territories. But ccTLDs are also Top Level Domains. As such, they receive root service from the ICANN. Without a listing in the root, a ccTLD might continue to operate on a local basis, but it could hardly be part of the global Internet. The fundamentla legal status of ICANN may be ambiguous, but like it or not, it would appear the ICANN now has consolidated legal authority over the root. Hence, ccTLDs participate in the root because ICANN (in its role as the IANA) lists them in the root. ICANN is a California nonproft corporation, and hence, ICANN is governed by California law. As a result, it is inescapable that ccTLDs are (to the extent they deal with ICANN) subject, at least potentially, to California law. This flows directly from the rules of personal jurisdiction (or territorial jurisdicton as it sometimes called) and the rules of choice-of-law. ccTLD manages are not lawyers, and this may seem surprising to them, but it is simply a fact. Of course, ICANN could contract around personal jurisdiction and choice of law. It could contract with the managers of .uk for the application of British law and a London forum, and with the manager of .fr for French law, and a Paris forum, and so forth. But this would create intolerable cost and uncertainty for ICANN. No intelligent lawyer would suggest that each relationship between ICANN and a ccTLD manager should be governed by a different national law. But there is another side of the story. Legally, ICANN may have have dominion over the global root, but given the history of the Internet, this same resource can be viewed from another angle. The root can also be viewed as the product of a global system of voluntary cooperation. From this angle, it might be argued that ICANN can no more have legal "ownership" of the root than the French government can own the french language. This is the picture of the Internet as a global system of voluntary cooperation or a commons in the technical legal and economic sense. But here is rub. If the root is a commons, then action with respect to the root requires consensus. You may say: Right on! ICANN should only act based on consensus of the global Internet community. But if you say that, you do not understand the fundamental nature of the root. The root is a scarce economic resource. Decisions regarding the root produce winners and losers. If the management of the root requires consensus of the global Internet community, then the root will not be managed effectively. This may be sad, but is true. Hence, the need for some entity with the power to act in the public interest when consensus is impossible because of a conflict between private or governmental interests. But the story is more complicated still! ICANN does not have any intellectual property rights in the root. The root is not copyrighted or patented. The root works because of what economists call networking effects. Everyone has an incentive to use the authoritative global root, because it is de facto a standard. Thus the phrase "authoritative global root" is a bit of misnomer, because the root is not backed by "authority;" it is the product of mutually reinforcing behaviors and expectations. And this means that there is a balance of power. If ICANN's decisions with respect to the ccTLDs were to deviate too far from what the interests of the ccTLDs, then they have a threat. The ccTLD managers can threaten to form their own root. And their root would simply be a superset of the ICANN root. The ccTLD root would borrow the gTLD nameserver addresses from the ICANN root and then add the ccTLD file that the new ccTLD root managers agreed upon. But who would win? Because there would be a winner. Powerful networking economics would eventually result in either ICANN or the ccTLDs winning the contest for control of the global root. I don't know who would win. But that's the point. The winner is uncertain. Hence, ICANN has powerful incentives to bring the ccTLD managers into the ICANN process, and whether they know it or not, the ccTLD managers have powerful incentives to reach an understanding with ICANN.
Guide to Blogging from Montreal Posts.

Game Theory and the Dormant Commerce Clause Maxwell L. Stearns (George Mason) has posted A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause on SSRN. Here is the abstract:
    While the commerce clause neither mentions federal courts nor expressly prohibits the exercise of state regulatory powers that might operate concurrently with Congressional commerce powers, the Supreme Court has long used the dormant commerce clause doctrine to limit the power of states to regulate across a diverse array of subject areas in the absence of federal legislation. Commentators have criticized the Court less for creating the doctrine than for applying it in a seemingly inconsistent, or even haphazard, way. Past commentators have recognized that a game theoretical model, the prisoners' dilemma, can be used to explain the role of the dormant commerce clause doctrine in promoting cooperation among states by inhibiting a regime of mutual defection. This model, however, provides at best a partial account of existing dormant commerce clause doctrine, and sometimes seems to run directly counter to actual case results. The difficulty is not the power of game theory to provide a positive account of the cases or to provide the dormant commerce clause doctrine with a meaningful normative foundation. Rather, the problem has been the limited choice of models drawn from game theory to explain the conditions in which states rationally elect to avoid mutually beneficial cooperative strategies with other states. Professor Stearns shows how a state might avoid cooperation in a situation not captured in the prisoners' dilemma account to disrupt a multiple Nash equilibrium game, thus producing an undesirable mixed strategy equilibrium in place of two or more available pro-commerce, Nash equilibrium outcomes. At the same time, the defecting state secures a rent that only became available as a consequence of the Nash equilibrium, pro-commerce strategies of surrounding states and that is closely analogous to quasi rents described in the literature on relational contracting. The combined game theoretical analysis, drawing upon the prisoners' dilemma and multiple Nash equilibrium games, not only explains several of the most criticized features of the dormant commerce clause and several related doctrines, but also underscores the proper normative relationship between the dormant commerce clause doctrine and various forms of state law rent seeking.

New Papers on the Net Here is today's roundup:Abstracts were not accessible when I prepared this post. My apologies.

Tuesday, June 24, 2003
Equitas non pro fastidiosi est. You really truly must surf here.

Garamendi Sasha Volokh has a great post on American Insurance Associationn v. Garamendi--the foreign policy preemption case from yesterday.

Blogging from Montreal: Part 5
    Introduction Today, ICANN staff posted a draft document entitled Establishment of new sTLDs: Request for Proposals on the ICANN website. This document is the result of former ICANN President Stuart Lynn's proposal for the creation of a very small number of so-called sponsored Top Level Domains (sTLDs). Lynn's idea was to allow a few, well-heeled organizations to create new TLDs similar to .aero or .museum. After all, what harm can this do? Karl Manheim have posted a paper analyzing Lynn's proposal.In that paper, we reached the following conclusions:
      • The proposal is best understood as a short-run solution to problems that emerged after the November 2000 round of TLD expansion. This short-run and short-sighted approach cannot succeed, because the long run problem that ICANN must solve is a resource allocation problem. Short-run solutions will have unintended consequences because they will commit the root resource and create precedents for future resource allocation decisions.
      • The proposal will move ICANN in the direction of the worst of all resource allocation models, the beauty-contest approach. ICANN should learn from its own painful experience in November 2000 and from the 75 years of failure at the FCC under the beauty contest model. Of all the decisions that ICANN could make now, moving towards the beauty-contest model is the worst-possible decision.
      • The criteria in the proposal will have the unintended consequence of favoring well-finance globalized non-profit membership organizations at the expense of regional, relatively poorer institutions that serve the needs of communities in third world.
      • The criteria in the proposal will focus the decision-making process on the characteristics of the applicant (responsiveness to community, etc.) rather than the usefulness of the new sTLD. The experience of the FCC teaches that is an inherent problem in the beauty-contest model.
      • The best options for solution of ICANN’s short-run problem are entirely mechanical or objective allocation systems. One such proposal is to grandfather in all the qualified applications from the November 2000 round. Other possibilities are to grandfather all qualified applications from non-profit institutions.
      • ICANN should establish a task force to design a rational policy that will put the root to its highest and best use and avoid the substantial institutional problems produced by the beauty-contest model.
    Twomey's Fine Finesse The so-called RFP is actually many things, including the communication of the following news:
      The Board, in consultation with ICANN President Paul Twomey, is also considering initiating a comprehensive study by ICANN of whether and how to proceed with additional TLDs at the same time as the creation of new sTLDs is being considered through this RFP process, and as the evaluation of the original Proof of Concept is being completed. The outcome of that study may or may not support the continued growth of additional TLDs and may or may not continue the concepts of sTLDs and uTLDs. Until this more substantive review is completed, the Board does not feel it is appropriate to commit to a substantial expansion of sTLDs. The Board does, however, feel that there should be an opportunity to allow those who submitted applications for sTLDs in Fall 2000, but whose applications were not successful, to have an opportunity to submit updated and revised applications at this time, as an extension of the original Proof of Concept. For the reasons presented in the Plan of Action, this opportunity is not being extended to uTLD applicants.
    In my opinion, this is damage control at its best. The very worst thing that could have happened to ICANN would have been the adoption of Stuart Lynn's plan as a blueprint for the expansion of the root! This would have guaranteed that for the foreseeable future, ICANN would have been recapitulating the history of the FCC--adopting the "beauty contest" model for the allocation of the root resource. Instead, Twomey used the the RFP draft as the vehicle to avoid "beauty contest" lock-in. Thus, the RFP suggests "a comprehensive study by ICANN of whehter and how to proceed with additional TLDs at the same time as the creation of new sTLDs is being considered through this RFP process, and as the evaluation of the original Proof of Concept is being completed." This was a crucial step toward a more rational policy for the allocation of the root resource. Also important, is the decision to exclude unsponsored Top Level Domains (uTLDs) from the interim RFP process. Had the RFP process been extended to uTLDs, yet another step towards lock in of the beauty contest approach would have been taken. And finally, the proposal is limited to unsuccessful applicants from the 2000 round of gTLD expansions. This limitation makes it clear that this limited sTLD expansion round is basically a process for cleaning up the mistakes made in 2000. Bravo!
    The Bad News But there is bad news as well. The RFP is part of an elaborate "beauty contest" approach. An elaborate application must be submitted and evaluated by independent evaluators. The criteria include the following:
      • the proposed sTLD; • the proposed Sponsoring Organization, including the proposed extent of its policy-making authority, its proposed policy-making process, and an indication of the level of support from the proposed Sponsored TLD Community; • how the proposed new sTLD adds value to the DNS; • how the proposed sTLD would reach and enrich broad global communities; • how the Sponsoring Organization would implement policies and processes to protect the rights of others; and • how the Sponsoring Organization and its selected Registry Operator would assure stable registry operation, including provisions for assuring continuity of service in the event of business failure.
    But perhaps this is the best that could be done, given that institutional momentum behind the Lynn proposal.
    A Comprehensive Study of Root Resource Policy In the short run the RFP is not terribly important. A few sTLDs will be created. Although there is a lot of window dressing, this is really a grandfathering process. In the long run, some very important issues need to be addressed, and a comprehensive study of root resource policy is exactly what is needed. For some thought by Karl Manheim and me on these issues, see An Economic Analysis of Domain Name Policy.
    More tomorrow.
    Guide to Blogging from Montreal Posts.

Blogging from Montreal: Part 4 It is Tuesday afternoon in Montreal and the GNSO council is discussing the report on expansion of the name space. On the one hand, this report represents a step forward. So far, ICANN's basic policy toward the root has been to waste the resource. Although the root could comfortably support a thousand to ten-thousand additional top level domains (TLDs), expansion of the root has been proceeding at a snails pace. Here is the recommendation in the GNSO report:
    Expansion of the gTLD namespace should be a bottom-up approach with names proposed by the interested parties to ICANN. Expansion should be demand-driven. There is no support for a pre-determined list of new names that putative registries would bid for.
But this is all very abstract. Consider the following list of "possible objective criteria:"
    1. Future expansion should increase the level of competition. 2. Future expansion should avoid names that are confusingly similar so as to avoid confusing net users. 3. Future expansion should avoid names that might deceive or defraud net users. 4. An easily understood relationship must exist between a new gTLD and its stated purpose. 5. Future names should be both for commercial and non-commercial purposes. 6. Future names should add-value to the domain name system. The purpose of introducing new names is to make the domain name system more useful and more accessible to broader communities of interest and to more end users (Lynn report 3-2003).
Notice that Number 1 and Number 6 are in tension or contradiction. Competition means competition--that is, proprietors of gTLDs aiming to attract the same customers on the basis of price and service. The idea of "value added TLDs" has been a coded way of saying that new TLDs should be different than old TLDs, and this notion is inherently anticompetitive. As the GNSO Council was concluding its discussion, the comment was made that this report is "wishy washy," and that is just about the best thing one can say about it.
Nonetheless, the GNSO Council approved the report unanimously.
Guide to Blogging from Montreal Posts.

Marston on the affirmative action cases Check out his post entitled "Curmudgeonly Thoughts on Grutter v. Bolllinger." Here is an excerpt:
    am troubled by a few things in the opinion. First, Justice O'Connor seems all too willing to defer to the judgment of what she calls "major American businesses" and "the military" and their estimations of good public policy. Those of us who are interested in resisting the corporatization of the university should be skeptical of a Court that takes "major American businesses" at their word when they prefer any policy, especially if the Court seems to be deferring to their judgment about educational policy. And there is already too much deference to the military going on right now in American society. They should be under civilian control, not the other way around. In other words, even if you like the way such arguments cut right now, you might not like the result the next time around. In addition, these sentences from O'Connor's opinion make me really uncomfortable:
      In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.
    Here the Court is trying to foster legitimate rule by appealing to a principle of merit in the selection of access to higher education. The visual metaphors here are quite stunning when you think about them: what is necessary is the appearance of openness and integrity.
And I agree, it really is stunning! O'Connor surely wrote carelessly (or much too candidly) when she said "legitimacy in the eyes of the citizenry."
Update: Also, check out this post by John Eden on the Legal Theory Annex.

The Layers Principle and NAT In a post entitled Oh no, Not Nat!, Eric Rescorla (Educated Guesswork) discusses an important question about the relationship between NAT (Network Address Translation) and the the layered nature of Internet Architecture. Rescorla is reacting to a post by Ed Felten, commenting on The Layers Principle: Internet Architecture and the Law by Minn Chung and me.

The battle for the Constitution? Cal Thomas has an op/ed with the above title. Here is an excerpt:
    The . . . currently prevailing . . . view of the Constitution is the judicial philosophy of Justice Felix Frankfurter. Speaking of Supreme Court justices, Frankfurter said, "It is they who speak and not the Constitution." That view was echoed in a 1958 Supreme Court decision (Cooper vs. Aaron): "Article VI of the Constitution makes the Constitution the 'supreme law of the land' .. It is emphatically the province and duty of the judicial department to say what the law is .. It follows that the interpretation of the (Constitution) enunciated by this Court . is the supreme law of the land .." When the Constitution is not the supreme law, the Supreme Court will inevitably come to see itself as the supreme law. Charles Evans Hughes, who became chief justice in 1930, remarked earlier: "The Constitution is what the judges say it is."
Thanks to Howard Bashman.

Senate Rules Committee Votes to Limit Filibusters of Judicial Nominees See this AP Report. Here is a snippet:
    A Senate committee with all its Democratic members absent voted to limit filibusters of President Bush's judicial nominees Tuesday, a move Republicans hope will usher future federal judges through the Senate faster, even if Democrats want to stop them. Democrats oppose changing Senate filibuster rules for judicial nominees, but Republicans have a one-vote majority on the Senate Rules Committee and expected to win Tuesday's committee vote in any case. Democrats are expected to fight the measure on the Senate floor. The Rules Committee officially voted 10-0 for the measure, which would reduce the number of senators needed to force a vote on a judicial nominee with each successive vote until only a 51-member majority is needed.
For my analysis of this issue, see Breaking the Deadlock: Reflections on the Confirmation Wars. And see this post on How Appealing.

Balkin on Affirmative Action and Judicial Selection Reacting to a story in the New York Times, Jack Balkin has a thoughtful post on the possible effects of the affirmative action decisions on appointments to the Supreme Court. Here is a taste:
    President Bush, who is a shrewd politician, well understands that even as he attempts to pack the Court with judges whose beliefs he admires, he must keep public opinion in mind in making judicial appointments at the Supreme Court level (by contrast, very few members of the public pay much attention to lower court nominations). His father understood this point too, which, I think, explains both Souter's appointment and Thomas'. (Souter was more acceptable because unknown, Thomas was expected to be more acceptable because although he was very conservative he was also African-American). I have long believed that it is not in the interest of the Republican Party for Republican-appointed judges to overrule Roe v. Wade. (See my discussion of the Supreme Court and party coallitions). Nor, for that matter, is it in the interest of the Republican Party for those judges completely to outlaw affirmative action in college admissions (government contracting is another matter). Getting rid of Roe and affirmative action through judicial fiat simply bolsters the Democratic coallition. I'm sure that Bush and Karl Rove understand this perfectly.
Surf on over to Balkanization.

Updated Post on the Affirmative Action Cases Yesterday, I put up a long post on the affirmative actions cases, which has been updated several times. It includes a variety of resources on the cases, emphasizing the theoretical and normative questions. Scroll down or click here.

25 Years Howard Bashman has an excellent post that starts with an email from a student at Harvard:
    For us, the most surprising part of today's rulings is the following flourish in the penultimate paragraph of Justice O'Connor's majority opinion in the law school cases: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Slip op. at 31. A group of HLS students is bitterly divided: is this conclusion a holding, binding upon the Courts of Appeals?
Bashman replies:
    Obviously, that sentence from Justice O'Connor's opinion will mean whatever five or more Justices serving on the Court some twenty-five years from now decide that it means.
And Rick Hasen points out in a post on his excellent Election Law Blog:
    The unwritten assumption here is that affirmative action programs are safe for the next 25 years. That is wishful (or perhaps, depending on one's politics, not wishful) thinking. Eventually, a president will get to replace Justice O'Connor.
Bashman and Hasen are both right when they say that a majority of the Supreme Court can do whatever it pleases without fear of reversal. The Supreme Court's decisions are final. But neither Howard nor Rick has answered the question at hand: Is the 25 year period binding on the lower federal courts as a matter of stare decisis? Here is a bit more from the email to Bashman:
    Those who think not note that the Court has used the term "expect," indicating that the Court is merely speculating as to a future state of affairs. Such conjecture, they argue, cannot be the basis of a constitutional holding. Instead, the Courts of Appeals will have to weigh those expectations against the facts found in future cases, and will be free to hold as they see fit on the basis of the other principles in the opinion. Others argue that it is not for the Courts of Appeals to decide when a proposition receiving five votes is harmless dicta and when it is binding. Although law students routinely consider "dicta" that part of an opinion not necessary to render the judgment, of course many important constitutional principles were rendered thusly. These students argue that this rule is a holding, binding on the Courts of Appeals. They point out that Justice Thomas has, in a bit of gamesmanship, characterized the sentence as a "holding." Slip op. at 2 (Opinion of Thomas, J., concurring in part and dissenting in part). They also note that the five Justices in the majority have not responded to that characterization, as they easily could have. And none of the Justices casting majority-granting votes concurred in the opinion but only in the judgment with respect to the sentence in question, leaving it without the force of law. This, combined with the fact that the sunset provisions of the Equal Protection Clause are inarguably constitutional principles, makes the 25-year statement a rule of law which Courts of Appeals must apply.
There is a common assumption here--made by both the students who think that it is a "holding" and those who think it is not. The common assumption is the legislative theory of holdings. That is, the view that a holding is an authoritative statement of a rule binding the lower courts via the rule of vertical stare decisis. It is easy to see how contemporary American law students would come to adopt the legislative theory. The United States Supreme Court has used such legislative holdings for more than a generation. The most famous example is, of course, Miranda in which the Court stated a holding that went far, far beyond the facts of Miranda's case. Where does the legislative theory of holdings come from? The answer is found in legal realism. The realists viewed holdings as predictions of how future courts are likely to act. A legislative pronouncement is thus a "holding," but only insofar as it provides a reliable guide to future decisions by the court who issued it. And that brings us round to Bashman and Hasen, both of whom observe that the O'Connor 25 year pronouncement is not a very good predictor of the Court's future behavior--once the composition of the Court changes. But all of this is most unfortunate. Why? Because there is a much better understanding of "holding" available. The holding of a case is the ration decendi--the reasoning necessary to the result. Even the Supreme Court can only decide individual cases on their facts. For the Court to do otherwise, is for the Court to transgress the limits on judicial power that it jealously enforces via the justiciability doctrines. Moreover, adopting the realist view of precedent undermines the rule of law. Even a recent legislative pronouncement of a "holding" is an uncertain guide if the decision was 5-4 and either the composition of the Court has changes or some members of the Court are wavering. And this brings us back to the 25 years. This statement is obviously an obiter dictum, and even if the Court had explicitly called it a holding, it would not be part of the holding. What happens 25 years from now, or 5 years from now, was not before the court.
For my views on the role of stare decisis, see The Case for Strong Stare Decision, or Why Should Neoformalists Care About Precedent?, in three parts:And be sure to read the posts by Bashman and Hasen.

Klarman: Is the Supreme Court Irrelevant? Michael Klarman (Virginia) posts Is the Supreme Court Sometimes Irrelevant?: Race and the Southern Criminal Justice System in the World War II Era. Here is the abstract:
    This article considers the impact of Supreme Court criminal procedure decisions on the treatment of blacks by the southern criminal justice system. It considers decisions in the areas of coerced confessions, race discrimination in jury selection, the right to counsel, and the right against mob-dominated trials. The article finds that these Supreme Court rulings had almost no impact. Blacks continued to be almost entirely excluded from juries in criminal cases; law enforcement officers continued to beat black defendants into confessing; and court-appointed white lawyers turned in sham performances. The article also considers the indirect effects of these decisions and the litigation that produced them. Here, the rulings may have been more consequential, in terms of educating blacks about their rights, mobilizing social protest, facilitating NAACP branch-building and fund-raising, and instructing oblivious whites about the egregiousness of Jim Crow conditions. Finally, the article considers why Supreme Court criminal procedure rulings were so much less efficacious (for southern blacks) than contemporaneous Court decisions invalidating the white primary and mandating the admission of blacks to southern public universities.