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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Friday, February 28, 2003
Google Problem: Google has been sending you to the February Archive of Legal Theory Blog. To get to the latest posts, click here.

Julie Cohen on DRM & Privacy Julie Cohen (Georgetown) is delivering a very interesting paper on digital rights management and privacy at the Berkeley DRM conference this afternoon. She begins her talk with the obvious and very troubling point that DRM systems may facilitate tracking of what we view, listen to, and read--creating a troubling threat to "intellectual privacy." What if this happens? How could the law respond? Fair Information Practices, Julie argues, are not enough, because these proctections are voluntary and likely to be anemic. Even privacy torts can be waived in advance & likely would by click-wrap agreements intergrated into DRM systems. Cohen then asks whether intellectual privacy ought to trump such agreements. The best solution, she suggests, is to design personal privacy protections into DRM in the first place. Rather than mandating specific technologies, Cohen argues, government can create inalienable rights that would constrain technology that can invade privacy.

Not DRM. The Domination Clause of the Utah Constitution While a Microsoft representative was explaining Microsoft's decision to build support for DRM into Windows, I took a look at the fine blog, A Good Oman. Nate has a very interesting post on the domination clause of the Utah State Constitution. His blog is always provocative, interesting, and smart.

Lessig Larry Lessig is speaking now at the Berkeley DRM conference. He is arguing that we are "solving for the extremes," those who want all information to be controlled or those who want everything to be free. He worries that DRM will create an architecture that forces those who to share their content, but reserve some rights into a false choice between total control (DRM) and giving their content away with no restrictions at all. His suggested alternative is a variation on DRM, which he calls DRE (where E stands for Expression). Larry was quite emphatic that the E was more than an emphasis on the power to set permissions in DRM, but even after hearing his explanation, I wasn't really sure what the difference was.

Regulation versus Market Approaches to DRM, More from Berkeley Another emerging theme from this morning's sessions concerns the role of government in establishing DRM standards. Several participants expressed concern about regulatory lock-in to particular DRM systems. Pam Samuelson asks about another form of legal regulation that may have a big impact on DRM, patents. If a DRM standard emerged around a patented technology, then the firm that owned the patent could make decisions that could determine who would be able to sell digital content.

Religion and IP Rights, More from the Berkeley DRM Conference David Farber made an eloquent plea to those who engage in public debate about DRM to forgo religion. This please certainly resonated with this observer of the digital copying wars. How many times have I heard IP stakeholders take the position that P2P is the moral equivalent of "armed robbery." (I heard it again today.) Nonsense and destructive of dialogue. And when I teach the Napster in my IP course, how many students have argued that P2P is a basic human right, because the music industry rips off artists. Bogus and destructive of dialogue.

Radin on the New Intellectual Property (and the New Contract) Margaret Jane Radin (Stanford) writes the following in response to my earlier post (live from the DRM conference at Berkeley):
    Someone (maybe me) should write an essay called "The Transformation of Property and Contract."  The transformation involves changing the meaning of the institutions by reading out the public dimensions. The former meaning of "property" involves an institution in which the state (the community) underwrote the entitlements; therefore there is a central role for democratic assent.  Now entitlements are being created by giant "private" entities, e.g. by the Microsoft EULA, and some writers are assimilating these regimes to property.  But it is property in a new sense, without the public dimension.  The former meaning of "contract" involves an institution in which the state (through the court system) underwrites enforcement, providing a neutral forum for interpreting what constitutes binding commitment, what exactly the commitment constitutes, and what commitments are unenforceable for reasons pertaining to the community as a whole. Now commitments are being created and enforced automatically through machines created by giant "private" entities which promulgate whatever provisions they want according to whatever interpretation they want, and some writers are assimilating these technological regimes to "contract."  But it is contract in a new sense, without the public dimension.

More from the DRM Conference at Berkeley
    Part One: Sobel's ISP Resaler Model Lon Sobel gave an intriguing paper on an ISP centered model for sale of digital content. Lon propose that ISP's act as resale outlets, with the content firms (music, film, books) as wholesalers. This is an intriguing suggestion, but it assumes a picture of Internet architecture that may be accurate for many American consumers, but does not generalize to the global Internet. Many Internet users access the global Internet through nonprofit or government sponsored connections to the Internet. Even in the United States many users (college kids) access the net through university links to the backbone. I just can't see U.C. Berkeley becoming the resaler for AOL/Time Warner, but who knows?
    Part Two: The New Politics of IP Legislation Cary Sherman of the RIAA delivered the party line--P2P is evil and the ultimate solution is something that consumers will prefer to P2P. But I don't think that even Cary believes that the industry has found the holy grail--a way to put the genie back in the bottle! Sarah Deutsch of Verizon Communications obviously had a very different agenda. . Their sharp disagreement highlights how much the political environment for IP legislation has changed. JessicarestinLitman (among others) has observed that the history of copyright legislation involves the iteration of a three stage sequence: (1) new technology creates a new stakeholder with interests that are not accomodated by existing legislation; (2) the new takeholder goes to Congress which tells the stakeholder that consensus among all stakeholders is required for legislative action; (3) a bargaining process produces a solution which is win/win among the ip stakeholders, but extracts rents from others (e.g. through term extension). But the big ISPs and the big consumer electronic companies are now involved in the process. And consumers now have a visible stake. You can't imprison the 12 year old children of ordinary folks, much less U.S. Senators. Hence, the next round of ip legislation will be conltested in Congress. Prediction: No politically viable consensus will emerge from multiparty negotiations between ip stakeholders, ISPs, and consumer electronic firms.

The Old Intellectual Property & The New Intellectual Property It is the morning of the second day of the Digital Rights Management conference at U.C. Berkeley. The session this morning is on DRM as an enabler of business models--and readers of this blog may be asking, "What does this have to do with legal theory?" The panel is impressive, but it includes mostly industry representatives. There isn't a single legal theorist on the list. Nonetheless, I think DRM will soon be on the tongue's of legal theorists everywhere. One of the great law review articles of all time was Charles Reich's The New Property, famously cited in Goldberg v. Kelly and at one time (maybe still?), the single most cited law article ever. The debate about the new property was, I believe, one of the key events that played a role in the transformation of American legal education and legal scholarship. But something equally profound is happening in the field of intellectual property. The old intellectual property (copyright, patent, trademark) is giving way to the new intellectual property (digital rights management, the anti-circumention provisions of the Digital Millenium Copyright Act). Here is an example from CNET yesterday:
    Printer maker Lexmark International Group won a preliminary injunction Thursday in efforts to prevent a company from selling computer chips that allow toner cartridges to be recycled. Judge Karl Forester of the U.S. District Court for the Eastern District of Kentucky issued the pretrial injunction against Static Control Components, a small Sanford, N.C.-based company that sells printer parts and other business supplies. The order prohibits the company from selling its Smartek chip. When installed in compatible Lexmark printers, the chips allow the printers to use cheaper recycled toner cartridges that would otherwise be rejected by the printer's sensors. Lexmark filed the suit late last year, alleging the Smartek chip violates the Digital Millennium Copyright Act, which prohibits the dismantling of devices intended to protect intellectual property rights.
You can read the rest of the CNET article by clicking here. The implications of the new intellectual property are just now coming into focus. The new intellectual property combines technology (technology measures to that enable IP proprietors to control the use of their products downstream) with law (provisions like the DMCA) to make it possible for property rights to take entirely new forms. Prediction: In the next decade, the new intellectual property will play a role in intellectual debates about legal theory that is comparable to the role played by the new property in the 60s and 70s.
A while back I posted on Margaret Jane Radin's Information Tangibility (download from SSRN here), which deals with a very important dimension of this issue. Don't be the last legal theorist on the block to read Margaret Jane's important paper! Post Script Lon Sobel's paper from this morning's session is available here. And the wonderful folks at Berkeley have put together a really spiffy resource page, click here.

Friday Workshop at Buffalo At Buffalo, Lynn Mather does an internal workshop on How Does What Clients Want Link to What Lawyers Should Do? An Empirical Look at Lawyer-Client Relations. It is up to 27 in Buffalo; maybe it will be al fresco?

Yesterday at Princeton Yesterday at Princeton's Political Philosophy Colloquium, Susan Moller Okin workshopped Multiculturalism and Feminism: No Simple Question, No Simple Answers . Here is a taste:
    If a liberal state is discussing or negotiating with an internal cultural group, collective rights that seem to reinforce the inequality of the sexes within the group, if the women (including the younger women) of the group have been consulted and adequately represented during the course of the negotiations, and if they have stated in large enough numbers and in clear enough terms that they support their group’s illiberal norms and practices that seem oppressive of them, what should the state do? Democracy seems to require in such a case that the group rights claims not be hindered and, rather, that they be strengthened, by such findings, even though an unintended consequence of granting them is very likely to be continued subordination and denial of equal rights of women within the group. But liberalism, grounded in the equal rights of individuals, would not lead to this outcome; indeed a state that values liberalism above all would have no more need to consult with the women of such a group than it need consult with slaves before it insisted upon their emancipation or with workers before it insisted upon their protection from deadly workplace hazards. Of course, such consultation might well be considered desirable, not only because of the respect it shows to some of the most vulnerable members of the society, but also because it is likely to lead to more contextually wise solutions to the problem—ones that might, because of increased awareness of conflicting interests, be applied with more caution and less speed, or that would be applied more sensitively in different ways in different contexts. But the liberal would stress that basic rights—which arguably include, along with the rights to personal freedom and to be able to work without endangerment, the right to basic, legal equality in the most intimate sphere of life—should not be granted or withheld depending on the outcome of democratic procedures. They should be guaranteed for all—even for those who would abjure them for themselves.
I never thought I'd long to be in New Jersey!

Blogging from Two Places at Once This weekend I am blogging from the digital rights management (DRM) conference at Berkeley, and simultaneously (well, maybe not quite simultaneously) from the spectrum policy conference at Stanford. Both conferences deal with cutting edge issues! More later.

New on SSRN As February wanes, SSRN waxes. Here are two more new and interesting papers:

Thursday, February 27, 2003
Hurley on Cognitivism in Political Philosophy Political Theory Daily Review posted a link to Susan Hurley's paper Cognitivism in Political Philosophy. Susan is super smart, and this paper looks very interesting.

Looking Inside the Brains of the Stingy There is a wonderful little article in today's New York Times (free registration required) on empirical research and game theory. Here is the way it starts:
    HERE's a game economists play: Player 1 has $10 and can give any dollar amount to Player 2. Player 2 can either accept or reject it. If Player 2 accepts, they both keep the money. If Player 2 rejects it, neither player gets anything. What should the players do? Arguably, Player 2 should accept whatever is offered, since some money is better than none. Player 1 should thus offer as little as possible: $1. That strategy is the standard game-theory equilibrium.
But 1/2 of experimental subject do not play the equilibrium strategy. Why not? Read the NYT piece to find out. It is delightful (and short)!

Supreme Court Forecasting Project Take a look at the website for the Supreme Court forecasting project at Washington University. The predictive model battles legal experts on this term's cases. Totally fun. When you get to website, the trick is to click on the cases followed by [Decided] in brackets. Those are the cases where you can compare the experts versus the model versus what really happened.

Lawrence v. Texas, Liberty, and Originalism Jacob Levy of the Volokh Blog Empire posted earlier today (link to archive here) on reactions to Ramesh Ponnuru's piece on Lawrence v. Texas--the privacy case that revisits the cluster of issues raised by Bowers v. Hardwick. The blogosphere is buzzing, with posts by Eve Tushnet, Julian Sanchez, and Dana Berliner. Ramesh sees this case as dividing originalists and libertarians, but isn't that a false dichotomy? What do libertarian originalists (e.g. Randy Barnett) have to say about this case? Post Script It turns out that Randy is on the Institute for Justice's brief, which in fact presents an originalist, tradition-focused case, based on the limits of government power, as opposed to implied fundamental rights.

Thursday is Workshop Day Across the country, lawprofs are polishing their papers for March Madness. Here is this week's roundup of Thursday workshops:
    Eugene Kontorovich (George Mason) does an internal workshop titled The Piracy Analogy and Modern Universal Jurisdiction. (I must read this for my ACPA in rem project!)

    At Florida State, Richard McAdams (Illinois) gives Testing the Focal Point Theory of Expressive Law: A Pilot Experiment.

    Larry Yackle (Boston) does an internal workshop on The Convenient Constitution.

    At Kadish this week is Judith Jarvis Thomposn, one of our very finest moral philosophers. She does her paper entitled, The Legacy of Principia (click on the title for download). The paper is about the G.E. Moore's famous/infamous open question argument. Given that X possesses any natural property Y, it is an open question whether X is good. Here is a nice little sampling of her elegant paper:
      In any case, those of Moore's readers who rejected Moore’s Premise were entirely right to do so. The mistake that the Expressivists made lay in what they thought had to be concluded, from the falsity of Moore’s Premise, about what is done by a person who says "A is good," namely that such a person merely displays a favorable attitude toward A -- thus that he does no more than he would have done had he merely said "Hurrah!" in response to A. That was certainly a mistake. A person who says "A is good" does display a favorable attitude toward A. But he does more than that. He also says that A is a good fountain pen or a good dancer or good for use in making cheesecake or good for Jones or England or the tree in his backyard. If the context in which he says "A is good" does not tell his hearers which of these things he means, then they simply do not know what he means, and have to ask. And what won't do is for him to reply "No, no, I didn't mean anything like that, what I meant was only that A is a good thing!"
    It is a marvelous paper. (It takes me back to Philippa Foot's Metaethics course at UCLA!) If you haven't ever done the open-question argument, then do read Judy's paper. If you have already worked through the debates, then you don't need me to tell you how valuable Thompson's closely-grained analysis will be. Bravo, once again, to the marvelous Kadish Center series.
    Post Script And Erik Luna (Utah) delivers Punishment Theory, Holism, and the Procedural Conception of Restorative Justice at the University of Pittsburgh School of Law. Here is a tast of Erik's interesting paper:
      Although individuals may disagree on the precise theory of punishment, they may nonetheless agree on an appropriate sanction for a given crime. In particular, a procedural conception of an otherwise substantive theory—commonly known as “restorative justice”—allows distinct voices to contribute to an appropriate outcome without necessarily assenting to the same theory. Through a deliberative process that draws upon a “basket of philosophical views,” the procedural conception of restorative justice can better serve the diversity of perspectives on criminal sanctioning than the general application of any one substantive theory of punishment.
    Take a look!

Wednesday, February 26, 2003
UT Law and Philosophy Program I've just added a link to the side bar that will take you to the University of Texas Law and Philosophy Program events page. Brian Leiter has a fabulous lineup for this Spring: Gerry Cohen, Jules Coleman, Joseph Raz. Whoo hoo!

March is Right Around the Corner, So SSRN is Hopping With law review board transitions only a few days or weeks away, everyone is rushing to finish their latest. And when they do, they put it up on SSRN. Here is this afternoon's SSRN roundup:I must read Retribution for Rats, what a great title. Update:I just read the Rats abstract. Here is a taste: "because cooperators [RATS] are viewed with such disdain and because cooperators often find themselves alienated and ostracized from communities they care about, cooperation can be punishment in itself. The cooperator who suffers this extra punishment, then, may deserve less traditional punishment than a similarly situated non-cooperating defendant. Second, for some cooperators, cooperation can be a vehicle through which the defendant experiences atonement." Now, I have to read the whole thing!

Procedural Fairness & Class Actions For my money, one of the most important (but least well theorized) topics in the law is procedural fairness. (My friends know that I have a monster draft on this topic that I've been working on for years.) Of course, there are utilitarian approaches to this question. In the law, the utilitarian framework seems, on the surface, to dominate--because of the line of cases beginning with Mathews v. Eldridge that enunciate a balancing test for the question whether someone must be given a hearing before the government deprives them of property--all of this as an interpretation of the due process clauses of the U.S. Constitution. But there is another line of authority, exemplified by Richards v. Jefferson County that seems to say an opportunity to be heard is required, before somone can be bound with finality. In technical terms, the Supreme Court has said that due process requires an opportunity to be heard, before the doctrine of res judicata can be applied so as to finally resolve a dispute.
Legitimacy One way of making progress on the thorny issues raised by competing theories of procedural fairness is to reframe the question. Here is my move. We can make progress on a theory of procedural justice by asking:
    How can an individual regard as legitimate a final decision against them, when the individual believes the decision is incorrect?
That is, we may be able to make progress by focusing on procedural legitimacy, as opposed to procedural justice.
Dow Chemical Co. v. Stephenson This leads me to a case on which the Supreme Court will hear oral argument today, Dow Chemical Co. v. Stephenson. SCOTUSblog has a nice post. In a class action, are class members allowed to attack a judgment collaterally (in a separate legal proceeding) on the grounds that the class representatives did not provide adequate representation? This issue has been bouncing around the circuits for some time. A utilitarian approach strongly suggests the answer may be "no," because allowing collateral attacks on adequacy of representation makes it difficult to settle class actions. But can an absent class member, who believes the class action settlment is unfair, regard that the settlement as legitimately final if she believes two things: (1) the settlement was unjust on the merits, and (2) she was not adequately represented by the class representatives? The Supreme Court will decide by the end of June, or thereabouts.

New on SSRN today Here are the new papers from this morning and yesterday afternoon:

Tuesday, February 25, 2003
Rick Hasen on Judicial Nominations My Loyola Marymount colleague, Rick Hasen, has a very thoughtful response to my post about Adam Cohen's Op/Ed condemning Deborah Cook (Bush nominee to the 6th Circuit Court of Appeals). Click here for Rick's post. Rick argues,
    we already live in an era of both liberal and conservative judicial activism. We have a judiciary that is just another political branch. How else to explain the wild swings in judicial activism between the Warren court on the one hand and the Burger and Rehnquist courts on the other than to realize that in the most important cases, particularly cases of a constitutional dimension heard by the Supreme Court and, to a lesser extent by the lower appellate courts, there are no "neutral" principles of law to apply? (My forthcoming book defends this claim in detail in the context of the Supreme Court's political equality cases from Baker v. Carr to Bush v. Gore.) That is why it is appropriate for both Democrats and Republicans to take political ideology into account in choosing whether to support or oppose nominees for federal appellate judgeships.
Our disagreement then focuses on Rick's assertion that "in the most important cases, particularly cases of a constitutional dimension heard by the Supreme Court . . . there are no "neutral" principles of law to apply." Two points:
    First, I think Rick is unduly pessimistic about the possibility of realizing or restoring the rule of law. Even in constitutional cases, there is the text, the original meaning, and the doctrine of stare decisis. Law can be politics, but it does not have to be politics.

    Second, if Rick is right, then I think the implications are profound. If the Supreme Court is incapable of deciding constitutional cases nonpolitically, I think that the institution of judicial review is vulnerable (and perhaps unjustifiable). Why have nine unelected individuals as a council of review?
Thank you Rick for the very thoughtful response.

Public Discourse About Judicial Nominations: A Turn in the Wrong Direction Adam Cohen has an Op/Ed on President Bush's nomination of Deborah Cook to the United States Court of Appeal for the Sixth Circuit in today's New York Times. (Click here for the Cohen's Op/Ed, free registration is required.) Cohen's piece is titled, Deborah Cook Is the Typical Bush Judicial Nominee — So Watch Out. (Here is the DOJ page on her nomination.) I don't know whether Deborah Cook is qualified for a seat on the Sixth Circuit or not, but I do know that Adam Cohen's editorial represents a very dangerous trend in public discourse about judicial nominations. More than ever, opponents of judicial nominations oppose candidates on the basis of political ideology--a trend that threatens to do fundamental damage to the rule of law. (The same phenomenon occurred when Clinton was President; the right was guilty then of the sins that the left commits today.) Cohen's editorial suggests that Justice Cook's decision in Davis v. Wal-Mart Stores, Inc., 756 N.E.2d 657 (Ohio 2001) demonstrates that she lacks the virtue of justice--that she distorted the law because she is biased in favor of big business and against employees. His editorial distorts the facts of the case, and misrepresents Justice Cook's dissenting opinion.
What did Adam Cohen Say? Cohen's editorial begins:
    The case before the Ohio Supreme Court looked simple enough. Thomas Davis, a forklift operator at an Ohio Wal-Mart, was crushed to death at work. When his widow sued, Wal-Mart fought hard — and its employees may have lied and destroyed evidence. When she learned of the possible deception, Mrs. Davis went to court to try to add an important legal claim. Too bad, Wal-Mart argued. She had missed her chance — even if it did trick her by lying. As they say in law school, What result? The predominantly Republican court properly ruled, 6 to 1, that Wal-Mart's legal defense had been bogus. Even if it wasn't, the court held, it would be fundamentally unjust "to reward a party for misrepresenting or destroying evidence." Only one justice took Wal-Mart's side. That justice was Deborah Cook.
Cohen gives the impression that Cook's position can only be explained by bias. Cohen continues:
    In eight years on the Ohio Supreme Court, Justice Cook has been a steady voice against injured workers, discrimination victims and consumers. The court's most prolific dissenter, she frequently breaks with her Republican colleagues to side with big business and insurance companies. Often she reaches for a harsh legal technicality to send a hapless victim home empty-handed.
This is a New York Times Op/Ed (not a law review article), and I think it is quite fair for Cohen to write polemically and to simplify the case--if his summary is fair and accurately represents Justice Cook's position.
Is Cohen Right about Justice Cook's Opinion in Wal-Mart? Wal-Mart involved the intersection of two legal doctrines, the tort of spoliation of evidence and the doctrine of res judicata (or claim preclusion). Both require a bit of explanation.
The Spoliation Tort When a party to a lawsuit destroys evidence, the legal system has a variety of techniques for responding. There are criminal statutes that forbid the obstruction of justice or evidence tampering. During the discovery process, judges can sanction the destruction of evidence. At trial, a judge can instruct a jury that it may draw an inference (called the spoliation inference) to the effect that the party who destroyed evidence did so because it would have hurt their cause. In 1984 in the case of Smith v. Superior Court, the California Supreme Court added another legal doctrine, an independent tort action that allows that victim of spoliation to sue for damages based on their opponent's destruction of evidence. The spoliation tort was the basis for the plaintiff's claim before the Ohio Supreme Court in Wal-Mart.
Res Judicata The doctrine of res judicata (latin for "a thing decided") is part of the law of prior adjudication. Although res judicata is certainly technical, it is not a "mere technicality." Without this doctrine, lawsuits could continue forever. A party who lost the first time could simply sue again. A party who won, could continue to sue again and again, seeking new damages each time. The doctrine of claim preclusion is absolutely essential for a well functioning legal system, not just for powerful reasons of efficiency, but also because it would be horrendously unfair to defendants if they could be sued again and again on the same claim.
Res Judicata and the Spoliation Tort In the Wal-Mart case, the legal issue concerned the interaction between the new spoliation tort and the very old doctrine of res judicata. The conjunction of these two doctrines creates a special problem for the law, because the spoliation tort action is almost always brought when another lawsuit is already in progress. The rule is that you must bring all of your legal claims if they stem from the same facts--the jargon is "the same transaction or occurrence." By definition, spoliation tort claims arise from the same facts as the underlying claim--in Wal-Mart, it was a fork-lift accident. So, you must bring the claims together. But there is another rule. If two claims stem from the same facts, but one claim also relies on events that happened after the date the first lawsuit was filed, the two claims can be split into two separate lawsuits. But this creates a special problem for spolation tort cases, because the spoliation of evidence usually occurs after the first lawsuit is filed. Hence, many courts have ruled that the spoliation tort claim must be brought with the underlying claim. In the Wal-Mart case, the majority concluded that the spoliation of evidence claim did not arise from the same facts as the underlying injury claim, and hence concluded that res judicata did not apply. The court also concluded that the doctrine of res judicata should not be applied so as to work an injustice--in this case to reward a wrongdoer, i.e. a party who has destroyed evidence. This last bit of reasoning was unnecessary to the decision, and as a matter of law, is unsound. If there were a general equity exception to the doctrine of res judicata, then the doctrine could not do its vital work--bringing litigation to a definitive end.
Justice Cook's Dissent What did Justice Cook argue in dissent? At the outset, she noted that the spoliation tort is itself the subject of controversy. Most state Supreme Courts have not recognized the tort, and California (the state that created the tort) has now reversed itself. (I should note that I have been a proponent of the spoliation tort, but Justice Cook is right about the controversy.) Justice Cook's dissent was based on the theory that spoliation tort claims should be tried with the underlying action, if the spoliation occurred before the primary action (the claim based on the plaintiff's injury) was concluded. This is an issue upon which reasonable judges may differ. Requiring plaintiffs to try their spoliation claims with the underlying case has obvious advantages. We have one trial instead of two, one discovery process instead of two, one appeal instead of two, and so on. If we limit ourselves to looking backward (ex post) at the Wal-Mart case, then the application of res judicata might be said to be unfair--because it denies the plaintiff his day in court. If, however, we look forward, at the effects of the doctrine of res judicata on future cases, then a different picture emerges. In the long run, one might argue, reducing the costs of litigation and limiting satellite litigation is not only more efficient, it also minimizes the real hardships that our litigation process imposes on individuals and firms. Satellite spoliation cases can burden individuals as well as big corporations, and we should not shape the law of res judicata on the basis of the identity of the particular defendant in the case in which the issue reaches a state's Supreme Court.
Can You Trust Me? This post suggests that Adam Cohen's presentation of the Wal-Mart case is not trustworthy. But can you trust me? Don't I have an agenda? I do. But my agenda is not to promote President Bush's nominees. My agenda is to get political ideology out of the process of judicial selection, nomination, and confirmation. Deborah Cook should be confirmed if she posseses the judicial virtues. She should be confirmed if she possess civic courage, a judicial temperment, judicial integrity, judicial intelligence, sound practical judgment--and most importantly, the virtue of justice. But the virtue of justice is not the disposition to decide cases in a way that advances my political ideology (or yours). The virtue of justice is the dispositon to decide cases in accord with the law. There are exceptional cases, of course, where equity is required because the facts are so unusual that a special exception must be made, but Wal-Mart was not a case like that. An assessment of Justice Cook's performance in Wal-Mart should not be based on the question whether she favored the little guy or the big corporation. It should be based on the quality of her reasoning. Her opinion should damn her if it shows she lacks judicial integrity, fidelity to the law and concern for its coherence. But her opinion in Wal-Mart simply does not show those things.
The Fragility of the Rule of Law I am concerned about Adam Cohen's attack on Deborah Cook, because I am concerned about the rule of law. If the current trend towards the politicization of the federal judiciary continues, then every judicial nomination (not just Supreme Court nominations) can become an ideological battleground. The nomination and selection process will become a strategic game, with each side seeking to create a third political branch. But if the judiciary is just another political branch, then there is no reason to consider its resolution of disputes to be authoritative--to be binding on citizens and the other branches of government. If we produce a judiciary that lacks the judicial virtues and personifies the vice of result-orientation, getting the result the judge wants rather than the result the law requires, we are inviting trouble--because the rule of law is a fragile thing.
Some Additonal Information About Me This post takes me out of my usual role as the author of this blog--legal theorist. I am also the co-author of Destruction of Evidence, the leading treatise on the spolition tort. My treatise and law review articles on the destruction of evidence have been cited by dozens of courts, including several state Supreme Courts. I am also the co-author of the volume of Moore's Federal Practice that deals with the doctrine of res judicata. This volume has been cited by the United States Supreme Court and every one of the thirteen United States Courts of Appeal, including the Sixth Circuit. Finally, I am the author of Virtue Jurisprudence: A Virtue-Centered Theory of Judging and of The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, which set out the theory of judicial selection that I draw upon for this post.

Today on SSRN Here is the roundup:

Barber at Oxford Today Nick Barber (also here) (Oxford), delivers a paper titled On Contradictory Legal Rules at Oxford's Jurisprudence Discussion Group today. If you are not familiar with Nick's work, you might check out his Prelude to the Separation of Powers, 60 Cambridge Law Journal 59-88 (2001).

Monday, February 24, 2003
More New Papers on SSRN More new papers went up on SSRN this afternoon:

Workshops Today Here is the roundup of Monday workshops:
    Jennifer Arlen (NYU) is at NYU's faculty workshop series. No title for Jennifer's paper on the schedule.

    Adrian Vermeule (University of Chicago) presents The Constitutional Law of Congressional Procedure at Georgetown's superb Colloquium on Constitutional Law and Theory. What a great topic! You can be sure Adrian has something interesting to say. The following peek at the paper certainly whet my appetite:
      A striking feature of the legislative procedure mandated by state and foreign constitutions is the widespread presence of “three-reading rules.” Such rules typically require that “[n]o bill shall become a law unless the same shall have been read on three several days in each house previous to the final vote thereon.” In most jurisdictions, however, the three-reading requirement may be overridden by a supermajority vote, at least in cases of “urgency.” In the national Congress, each House early adopted threereading rules; although the Senate rules required three readings on three different days, and the Senate retains its rule today, the House rules currently allow a bill to be read three times and enacted all in a single legislative day. Bentham’s argument for three-reading rules, which is the standard argument, illustrates their justifications and their characteristic problems. Bentham argues, chiefly, that the three-reading rule operates as a self-binding mechanism that allows the legislature to guard against the consequences of its own future passions, myopia, or herd behavior. By requiring that bills be read and debated on successive days, the legislature may anticipate and forestall future occasions on which it will be seized by deliberative pathologies. “The more susceptible a people are of excitement and being led astray, so much the more ought they to place themselves under the protection of forms which impose the necessity of reflection, and prevent surprises.”

Congratulations to Chris Bertram Who reports that he has completed his book on Rousseau. Chris is the author of the very interesting blog Junius.

Kant and Regime Change On Saturday (2002/02/22), I posted a comment (click here) about Kagan's Power and Weakness, which identified United States policy toward Iraq with Hobbes and European pacifism with the position Kant set out in his essay, Perpetual Peace. Andrew Feller writes:"You use the following passage [from Kant] to justify regime change in Iraq:
    "But, on the other hand, in a constitution which is not republican, and under which the subjects are not citizens, a declaration of war is the easiest thing in the world to decide upon, because war does not require of the ruler, who is the proprietor and not a member of the state, the least sacrifice of the pleasures of his table, the chase, his country houses, his court functions, and the like. He may, therefore, resolve on war as on a pleasure party for the most trivial reasons, and with perfect indifference leave the justification which decency requires to the diplomatic corps who are ever ready to provide it."
Feller continues,
    Your point is well taken that Iraq exists in such a non-republican state, and thus the removal of Saddam (and the building of democracy/republicanism) is a necessity in the move toward peace in the region. But I feel that your point suffers without some reference to Bush's recent dismissal of anti-war protests as "focus groups." I support the use of force in the removal of Saddam, but am horrified by the continued dismissal by the administration of both the value of public opinion and of the necessity of consultation with Congress. My fear on both these issues is well encapsulated by the quotation from Kant above. I'm not calling Bush an emperor or a dictator. I'm only suggesting that by the exercise of his power in the extremes of its capabilities, he is awakening our fear of being led into war for just such reasons.
My point was not actually that Kant's essay provided a sound rationale for Bush's action--I view that as a terribly difficult question--but rather the very modest point, that Kagan's presentation of Kant was quite superficial. Andrew Feller's response is quite interesting. In my mind it highlights the crucial role that trust plays in a democratic polity. Hawks and doves on Iraq differ on many issues, but one of them is the their willingness to trust the Bush administration. Thanks again to Jacob Levy of the Volokh Conspiracy for calling my attention to Kagan in the first palce. Post Script Evan Orensky shares Andrew Feller's general outlooks and thoughtfully posts to that effect on his Blog, a clever sheep.

Today on SSRN Some interesting papers went up on SSRN this morning:Also, Laura Underkuffler (Duke) has posted an abstract for The Idea of Property: Its Meaning and Power (forthcoming from Oxford University Press).

Anthony Lewis on Marbury's Anniversary The New York Times (registration required) has an editorial this morning by Anthony Lewis, entitled Marbury v. Madison v. Ashcroft. The subject: Hamadi.

Marbury v. Madison at 200 or Fuggedabout Marbury Today is the 200th anniversary of Marbury v. Madison. No doubt there are still original things to say about Marbury, but I choose to celebrate this anniversary by remembering another case. The obsessive focus on Marbury (and judicial review of legislation) in introductory courses on constitutional law--and more importantly, on the part of our best constitutional theorists--is misplaced and misfocused. Marbury is a clever opinion, but not a great one--much less a profound one. Marbury may have been a brilliant strategic ploy, but if that is what it was, then it is hardly a shining moment in constitutional history. In many ways, Marbury tells us more about John Marshall's vices than it does about his virtues.
Before Marbury, John Marshall, and the counter-majoritarian difficulty, there was Chisholm v. Georgia. Most American legal scholars have never read this case in full. Decided on February 19, 1793, 10 years and 5 days before Marbury was handed down, Chisholm is most famous for having been overruled by the Eleventh Amendment to the Constitution, and hence may safely be ignored. Chisholm v. Georgia's importance, however, transcends the Eleventh Amendment and even the broad question of federalism that is refracted through the lense of the Supreme Court's constitutional sovereign immunity decisions. Chisholm v. Georgia was the first Supreme Court decision to take on the fundamental question of American constitutional theory. The most important opinion in Chisholm (this was before John Marshall bullied his colleagues into joining his opinions) was that authored by Justice Wilson. He began:
    This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this 'do the people of the United States form a Nation?'
Georgia, says Wilson, claimed to be a sovereign, but:
    To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves 'SOVEREIGN' people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.
And what is the nature of the state?
    Let a State be considered as subordinate to the People: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the people; so, in the same inverted course of things, the Government has often claimed precedence of the State; and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish, even there: but the first degree is still too prevalent, even in the several States, of which our union is composed. By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its rights: And it has its obligations. It may acquire property distinct from that of its members: It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts; and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this [2 U.S. 419, 456] feigned and artificial person, we should never forget, that, in truth and nature, those, who think and speak, and act, are men.
Since Hans v. Louisiana the Supreme Court has said that the Eleventh Amendment did more than overrule the narrow holding of Chisholm--that the state-citizen diversity clause conferred jurisdiction over suits initiated by a citizen against a state. The Eleventh Amendment, it is often said, repudiated the idea that the several states are not sovereigns. But is it even plausible to believe that the narrowly crafted words of the Eleventh repudiated the fundamental proposition of American constitutional democracy--that the people and not the state are the ultimate authority? Does an amendment that, by its plain language, merely withdraws the state-citizen diversity jurisdiction in cases in which the citizen is the plaintiff, does that language transfer sovereignty from the people to the states? If there is any sovereign in a democratic society, that sovereign is the people. But the teaching of Chisholm was more profound. In our republicanism, there is no sovereign (in the sense of an unlimited power). In a republic, even the whole people have only limited power.

And what about the narrow question in Chisholm?
May a state be sued in federal court? Imagine that you are reading Justice Wilson's argument as it would have been read whe first printed 210 years ago:
    Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation. Is it congruous, that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When [2 U.S. 419, 466] so many trains of deduction, coming from different quarters, converge and unite, at last, in the same point; we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this Court. But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself. 'The judicial power of the United States shall extend, to controversies between two States.'* Two States are supposed to have a controversy between them: This controversy is supposed to be brought before those vested with the judicial power of the United States: Can the most consummate degree of professional ingenuity devise a mode by which this 'controversy between two States? can be brought before a Court of law; and yet neither of those States be a Defendant? 'The judicial power of the United States shall extend to controversies, between a state and citizens of another State.' Could the strictest legal language; could even that language, which is peculiarly appropriated to an art, deemed, by a great master, to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language, describe, with more precise accuracy, the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she is, as she is painted, blind.
Wilson's opinion in Chisholm is profound, but it is not clever. The decision in Chisholm was a strategic blunder--the Justices elevated the law over the game of strategic interaction among political actors. But the decision in Chisholm tells us more about the Wilson's virtues than his vices.
Happy Birthday Marbury v. Madsion!

Sunday, February 23, 2003
Post Moved When I originally posted about the anniversary of Marbury, I was in error about the date. February 24 is the correct date for Marbury. Thanks to Eugene Volokh for the link to the Supreme Court's own files. The post originally found here has been moved to Monday, February 24. You can simply scroll up, or click on this link to get it. My apologies for the confusion.

Saturday, February 22, 2003
Federalist Society at Notre Dame Today Law Muse is blogging from the Federal Society Student Symposium at Notre Dame (also here) today. The impressive lineup includes:
    Hon. Morris Arnold, U.S. Court of Appeals, Eighth Circuit Prof. Gerard Bradley, Notre Dame Law School
    Prof. W. Cole Durham, J. Reuben Clark Law School, BYU
    Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit
    Prof. Richard Epstein, University of Chicago Law School
    Prof. John Harrison, University of Virginia School of Law
    Mr. Kevin "Seamus" Hasson, The Becket Fund for Religious Studies
    Prof. Kyron Huigens, Cardozo School of Law, Yeshiva University
    Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
    Rev. Barry Lynn, Americans United for Separation of Church and State
    Prof. John McGinnis, Northwestern Univeristy School of Law
    Prof. Juan Mendez, Notre Dame Law School
    Prof. Stephen Morse, Univeristy of Pennsylvania Law School
    Hon. Diarmuid O'Scannlain, U.S. Court of Appeals, Ninth Circuit
    Prof. Jeremy Rabkin, Cornell University
    Prof. Vincent Rougeau, Notre Dame Law School
    Prof. Michael Seidman, Georgetown University Law Center
    Prof. Amy Wax, University of Pennsylvania Law School

The Case Against Intellectual Property Economists Michele Boldrin and David K. Levine's new book The Case Against Intellectual Monopoly (Chapter One here and Chapter Two here) is certainly stirring the pot. Douglas Clement has a nice essay on the controversy: Creation Myths: Does innovation require intellectual property rights? available from Reason Online. Here is a taste:
    Conventional wisdom admits that monopoly rights impose short-term costs on an economy. They give an undue share of the economic pie to those who own copyrights and patents; they misallocate resources by allowing innovators to command too high a price; they allow innovators to produce less than the socially optimal level of the new invention. But these costs are all considered reasonable because innovation creates economic growth: The static costs are eclipsed by dynamic development.

    Boldrin and Levine say this is a false dilemma. Monopoly rights are not only unnecessary for innovation but may stifle it, particularly when an innovation reduces the cost of expanding production. "Monopolists as a rule do not like to produce much output," they write. "Insofar as the benefit of an innovation is that it reduces the cost of producing additional units of output but not the cost of producing at the current level, it is not of great use to a monopolist." Monopolists, after all, can set prices and quantities to maximize their profits; they may have no incentive to find faster reproduction technologies.
Also, there is more of the same at Levine and Boldrin's Intellectual Property Page.

Nasty, Brutish, and Short Jacob Levy at the Volokh Conspiracy posts about the Kagan Controversy. Kagan's Power and Weakness in Policy Review Online, has the following provocative passage:
    It is time to stop pretending that Europeans and Americans share a common view of the world, or even that they occupy the same world. On the all-important question of power — the efficacy of power, the morality of power, the desirability of power — American and European perspectives are diverging. Europe is turning away from power, or to put it a little differently, it is moving beyond power into a self-contained world of laws and rules and transnational negotiation and cooperation. It is entering a post-historical paradise of peace and relative prosperity, the realization of Kant’s “Perpetual Peace.” The United States, meanwhile, remains mired in history, exercising power in the anarchic Hobbesian world where international laws and rules are unreliable and where true security and the defense and promotion of a liberal order still depend on the possession and use of military might.
There has been a backlash, including a piece by Timothy Garton Ash and one by Paul Berman. I doubt Kagan's claim on the merits, but that isn't what struck me about this debate. Instead, I was struck by the One Minute Philosphers versions of Hobbes and Kant that are figuring as rhetorical tropes. The Hobbesian world of civil societies is precisely the opposite of the war of all against all, and Kagan presumably felt no need to bother checking what Hobbes's view of the relationship between nations really is. His understanding of Kant's views is no better. Kant wrote:
    The state of peace among men living side by side is not the natural state (status naturalis); the natural state is one of war. This does not always mean open hostilities, but at least an unceasing threat of war. A state of peace, therefore, must be established.
And how is perpetual peace to be established. Kant believed that Perpetual Peace required that all nations have republican constitutions, founded on the consent of the governed. Why?
    The republican constitution, besides the purity of its origin (having sprung from the pure source of the concept of law), also gives a favorable prospect for the desired consequence, i.e., perpetual peace. The reason is this: if the consent of the citizens is required in order to decide that war should be declared (and in this constitution it cannot but be the case), nothing is more natural than that they would be very cautious in commencing such a poor game, decreeing for themselves all the calamities of war. Among the latter would be: having to fight, having to pay the costs of war from their own resources, having painfully to repair the devastation war leaves behind, and, to fill up the measure of evils, load themselves with a heavy national debt that would embitter peace itself and that can never be liquidated on account of constant wars in the future. But, on the other hand, in a constitution which is not republican, and under which the subjects are not citizens, a declaration of war is the easiest thing in the world to decide upon, because war does not require of the ruler, who is the proprietor and not a member of the state, the least sacrifice of the pleasures of his table, the chase, his country houses, his court functions, and the like. He may, therefore, resolve on war as on a pleasure party for the most trivial reasons, and with perfect indifference leave the justification which decency requires to the diplomatic corps who are ever ready to provide it.
And of course, it is precisely this thought that is the fundamental rationale for regime change in Iraq. Because Iraq lacks a republican form of government, it will be a constant threat until a democratic regime is established. Kagan's understanding of Kant and Hobbes's ideas is, in fact, topsy turvey.

Porat on Negligence Theory Yesterday Ariel Porat (Tel-Aviv) posted The Many Faces of Negligence on SSRN (It is forthcoming in 3 Theoretical Inquiries in Law, 2003). Porat focuses on a feature of the Hand formula that is oft neglected. Nothing requires that the costs and benefits be associated with the defendant (injurer) and plaintiff (victim). Costs and benefits may accrue to identifiable third parties or society art large. Some of the injury may be borne by the defendant; some of the costs of precaution may be borne by the plaintiff. Porat works through the possibilities and implications in impressive detail. A delight for tort theorists. And More on Negligence from Theoretical Inquiries in Law Porat's article will be in Part II of a Symposium on Negligence in the Law. Part I had George Fletcher's The Fault of Not Knowing, Kenneth W. Simons' Dimensions of Negligence in Criminal and Tort Law, Heidi M. Hurd and Michael S. Moore's Negligence in the Air, and Alon Harel and Assaf Jacob's An Economic Rationale for the Legal Treatment of Omissions in Tort Law: The Principle of Salience.

Friday, February 21, 2003
Dennett on Freedom and Evolution I was browsing the counter at Book Soup on Sunset Boulevard this morning, and what do I come across? Freedom Evolves by Daniel Dennett (Tufts). Ever since I read Elbow Room, I have been an enormous fan of Dennett. In fact, I wrote a big fat law review article, Legal Personhood for Artificial Intelligences, because his work on consciousness was so inspiring. I can't wait to read the book, and I will post as soon as I finish, but in the meantime, here are links to some reviews:I always learn something when I read Daniel Dennett.

Shavell Hat Trick Steven Shavell (Harvard) uploaded three papers to SSRN this morning. They are: Economic Analysis of Public Law Enforcement and Criminal Law, Economic Analysis of Litigation and the Legal Process, and Economic Analysis of Contract Law.

The Brothers Amar on Stare Decisis and the Supreme Court Akhil and Vik did a marvelous three part series on the role of precedent in the Supreme Court in the context of Bakke and Bowers for their Findlaw column. You can find their posts here (Part One), here (Part Two), and here (Part Three). Of course, the starting point for contemporary discussions in the Supreme Court's decision in Casey, which suggested that the Supreme Court has an obligation to follow its own precedents, even when it believed them to be wrong. Vik & Akhil disagree. Here is the flavor of their position:
    We think this "special justifications" approach wrongly submerges the meaning of the Constitution itself and improperly elevates the importance of the Justices' decisions. In other words, Casey privileges cases over the Constitution - the doctrine over the document. But the Constitution, not the Court's case law, is what "We the People" ratified in the 1780s and later through the amendment process. It is the document that creates the judiciary, not vice versa. Indeed, the same Constitution that establishes the federal courts and empowers them to hear cases "arising under this Constitution" requires all judges to swear an oath of allegiance not to their past rulings, but to the document itself. If neither the executive nor legislative branch of the federal government may unilaterally change the meaning of the Constitution, neither should the judiciary be able to do so. If we had to identify precedents supporting this view, we would point first to John Marshall's fountainhead 1803 opinion in Marbury v. Madison. That opinion makes clear that the entire basis of judicial review is to ensure compliance with the Constitution itself, as opposed to the misinterpretations of the Constitution by any branch of government--whether Congress or the President, or the judiciary itself. Interestingly, the landmark Marshall Court case of McCulloch v. Maryland did not cite to a single Supreme Court precedent, even as it lavished attention on the document's text, history, and structure. Prior to Casey, the Court had never clearly articulated the "special justification" approach; and in many important twentieth-century cases, the Court had in fact overruled its past precedents simply because it found them wrongly decided--exactly the approach Casey rejected.
But can this be right? Can it really be the case that the Supreme Court decides each case de novo? The Amars recognize that this would be problematic, and respond by focusing on reliance:
    Judicial power is by its nature retrospective; the Court applies law to factual circumstances that have already occurred. Erroneous precedents themselves are part of the factual backdrop against which the Court decides a current case. Thus, they are part of the "facts on the ground" that properly influence the application of retrospective judicial power. These facts may in some instances limit the ability of the Court to abruptly change course, even if persuaded of past error. For example, even if the Court were tomorrow to deem erroneous its longstanding precedents upholding the constitutionality of paper money, surely the Justices could not ignore the vast economic system that has built up in reliance on paper.
Yes. But in my view, there are subtleties and complications that Vik and Akhil's story elides. Much depends on the jurisprudence, the general constitutional approach, that the Court employs. If the Supreme Court is the battleground for contesting judicial ideologies, then a weak doctrine of stare decisis can result in a series of flips and flops--especially in the case of a court that is divided between opposing ideological camps with vascillating members in the center. Under these conditions, it won't take long for the public to percieve that the Court has become a political branch--and the other political branches will respond accordingly. Nominations to the court will be crafted to influence results in the most politically important cases; the judicial virtues, and especially judicial integrity, will come to be viewed as negative characteristics in a Supreme Court justice--because a justice with integrity cannot be a reliable vote. This dangerous condition is a case for nonideal theory. How can we restore the rule of law, under conditions where the rule of law has already deteriorated significantly?
This is not to say that Vik and Akhil are wrong when it comes to ideal theory. If the Supreme Court were practising a textualist and originalist jurisprudence, so that it became clear that a shift in constitutional meaning really constituted a correction of a mistake (and mistakes happen for innocent reasons), then a weakened doctrine of stare decisis might actually contribute to, rather than weaken, the rule of law.

New from Oxford Oxford's concentration of legal philsophers is unmatched. If you haven't visited their fine website, you can click here. Here is a roundup of the most recent work from the Oxford jurisprudence shop:
    Nick Barber--'The Rechtsstaat and the Rule of Law' (2003) University of Toronto Law Journal - forthcoming & 'The Rise of Prospective Henry VIII Clauses and their Implications for Parliamentary Sovereignty' (with Alison L. Young) (2003) Public Law - forthcoming.
    Samantha Besson--'Four Arguments Against Compromising Justice Internally', (2003) 23 Oxford Journal of Legal Studies - forthcoming & 'Les obligations positives de protection des droits fondamentaux. Un essai en dogmatique comparative', (2003) 1 Revue de droit suisse - forthcoming.
    Julie Dickson--The Central Questions of Legal Philosophy’ (2003) 56 Current Legal Problems - forthcoming.
    Timothy Endicott--'Raz on Gaps-The Surprising Part' in Thomas Pogge, Lukas Meyer, and Stanley Paulson (eds), Rights, Culture, and the Law - Essays After Joseph Raz (Oxford: Oxford University Press 2003) - forthcoming
    John Finnis--'On the Incoherence of Legal Positivism', in Dennis Patterson (ed.), Philosophy of Law and Legal Theory: An Anthology (Blackwell, 2003), 134-43; and Notre Dame Law Review 75 (2000) 1597-1611
    John Gardner--'The Mark of Responsibility' Oxford Journal of Legal Studies, 23 (2003) - forthcoming.
    Dori Kimel--From Promise to Contract: Towards a Liberal Theory of Contract (Oxford: Hart Publishing 2003) - forthcoming.
    John Tasioulas--'Mercy', Proceedings of the Aristotelian Society 103 (2003), 101-132
Not to mention Joseph Raz!

Thursday, February 20, 2003
Brockman on the New Humanists John Brockman is actually optimistic about progress in the humanities! I loved his essay: THE NEW HUMANISTS. Here is a tasty excerpt:
    In too much of academia, intellectual debate tends to center on such matters as who was or was not a Stalinist in 1937, or what the sleeping arrangements were for guests at a Bloomsbury weekend in the early part of the twentieth century. This is not to suggest that studying history is a waste of time: History illuminates our origins and keeps us from reinventing the wheel. But the question arises: History of what? Do we want the center of culture to be based on a closed system, a process of text in/text out, and no empirical contact with the real world? One can only marvel at, for example, art critics who know nothing about visual perception; "social constructionist" literary critics uninterested in the human universals documented by anthropologists; opponents of genetically modified foods, additives, and pesticide residues who are ignorant of genetics and evolutionary biology.
Dare we think about progress in legal theory?

Posner on Douglas You will want to catch up with Richard Posner's review of Wild Bill: The Legend and Life of William O. Douglas by Bruce Allen Murphy. The book reveals (or reminds us of) Douglas's many deep flaws. Douglas was at some level a vicious man--in the Aristotelean sense of vice. What I find most interesting in Posner's review is the following passage:
    Murphy is right to separate the personal from the judicial. One can be a bad person and a good judge, just as one can be a good person and a bad judge. With biography and reportage becoming ever more candid and penetrating, we now know that a high percentage of successful and creative people are psychologically warped and morally challenged; and anyway, as Machiavelli recognized long ago, personal morality and political morality are not the same thing.
This strikes me as deeply wrong, but the question is why? It isn't that Posner thinks that Douglas was a good judge. (Does anyone think that anymore?) Indeed, Posner writes:
    Douglas's disdain for judicial norms is easily illustrated. On a number of occasions he issued stays--which were quickly and unanimously overturned by his colleagues--intended to halt American participation in the Vietnam War on the ground that Congress had not declared war. One can argue from the language of the Constitution that the United States cannot lawfully wage war without a congressional declaration, but the argument depends on a literal interpretation of the Constitution--an interpretation that would also forbid military aviation on the ground that the Constitution expressly authorizes the creation only of land and naval forces--which Douglas contemptuously rejected in every other area of constitutional law. It was Douglas, after all, who had the audacity to rule in Griswold v. Connecticut, the first case to establish a right of sexual autonomy and hence a precursor of Roe v. Wade, that the Court could fashion new constitutional rights based not on the text of the Constitution but on the values underlying it; and so the Third Amendment, which forbids the quartering of troops in private homes in peacetime, became a source of the constitutional right declared in Griswold of married couples to use contraceptives.
So Posner doesn't think that Douglas himself shows the compossibility of moral vice and judicial vritue. Rather, Posner must believe that either considerations of general theory (or some other exemplar) show that one can possess the virtue of justice, yet lack all the other virtues. I've recently written on this topic, see Virtue Jurisprudence: A Virtue Centered Theory of Judging. At one level, I think that Posner has a misguided conception of virtue--confusing moral excellence with social conformity. At another level, I think that his argument conflates judicial excellence with artistic excellence, a fundamental mistake. Posner's prose shines. You won't regret reading this.

Political Theory versus Political Philosophy Jacob Levy at the Volokh Conspiracy blogs a very nice exchange between Kieran Healey (and here) and Matthew Yglesias re the sometimes exaggerated but none the less real difference in style and substance between political theory and political philosophy. If political philosophers read closely and agonize over distinctions and political theorists read holisticly and go for big-picture interpretations, where do the academic lawyers fit in the picture? Nowadays, many legal academics have PhDs in philosophy, political science, and history. The historical friction between these disciplines makes its way into the discourse of legal theory. All of this courtesy of Junius.

The "And Now for Something Truly Original" Department: Searle today at Kadish John Searle delivers Social Ontology and Political Power at U.C. Berkeley's Kadish Center today. Searle is one of the most important American philsophers. From his early work on speech act theory to his contributions to the artificial intelligence debates through his most recent work on social ontology, Searle has made lasting contributions. Today at Kadish John Searle is workshopping an 18 page paper. In those 18 pages, Searle suggests that the western political philosophy tradition (despite its many virtues) has missed the point. He then developes a framework for exploration of the underpinnings of political philsophy. His questions are "What is a society in the first place?" and "What sort of power is political power anyhow?" Here is a taste:
    How do governments, so to speak, get away with it? That is, how does the government manage as a system of status function superior to others status functions? One of the keys, perhaps the most important key is that typically governments have a monopoly on organized violence. Furthermore, because they have a monopoly on the police and the armed forces, they in effect have control of a territory in a way that corporations, churches, and ski clubs do not control a territory. The combination of control of the land plus a monopoly on organized violence, guarantees government the ultimate power role within competing systems of status functions. The paradox of government could be put as follows; governmental power is a system of status functions and thus rests on collective acceptance, but the collective acceptance, though not itself based on violence can continue to function only if there is a permanent threat of violence in the form of the military and the police. Though military and police power are different from political power there is no such thing as government, no such thing as political power without police power and military power (more about this later).
If you are interested in the deep questions of legal philosophy, read this paper!

Thursday is Workshop Day Here is the round up:
    At Vanderbilt's Legal Theory Workshops, the always interesting Wendy Gordon (Boston University) is presenting Excuse & Justification in the Law of Fair Use: Commodification and Market Perspectives.
And at Berkeley, John Searle is giving a very important paper. More on that later.

Wednesday, February 19, 2003
Lost Clauses of the Constitution Department: The Invasion Clause, Part I From The Volokh Conspiracy. Art. IV, sec. 4 of the Constitution provides "The United States . . . shall protect each of [the States] against Invasion." Eugene Volokh has a very interesting discussion of this provision and its relevance to the question whether Congress has power to require immunization as a defense against biological WOMD.
Lost Clauses of the Constitution Department: The Invasion Clause, Part II So Eugene got me looking for references to the invasion clause. James Madison had the following to say about the relationship between the militia clause and the invasion clause at the Virginia ratifying convention:
    But the honorable member sees great danger in the provision concerning the militia. This I conceive to be an additional security to our liberty, without diminishing the power of the states in any considerable degree. It appears to me so highly expedient that I should imagine it would have found advocates even in the warmest friends of the present system. The authority of training the militia, and appointing the officers, is reserved to the states. Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia; and the obvious necessity of their having power over them in these cases must convince any reflecting mind. Without uniformity of discipline, military bodies would be incapable of action: without a general controlling power to call forth the strength of the Union to repel invasions, the country might be overrun and conquered by foreign enemies: without such a power to suppress insurrections, our liberties might be destroyed by domestic faction, and domestic tyranny be established.
6 June 1788Elliot 3:90.
Lost Clauses of the Constitution Department: The Two Invasion Clauses, Part III And lo and behold, there is yet another invasion reference in Article I, Section 10:
    No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Does the "actually invaded" language in Article I affect our reading of Article IV? Eugene?

Balkin & Siegel on Fiss on the Theory of Equal Protection Jack Balkin (Yale) and Reva Siegel (Yale) have posted The American Civil Rights Tradition: Anticlassification or Antisubordination? on SSRN and you can also get it here. The topic is Owen Fiss's (Yale) famous Groups and the Equal Protection Clause (not published in the Yale Law Journal). And while you are at it, check out Larry Alexander's (San Diego, but he went to Yale) Equal Protection and the Irrelevance of "Groups". And by the way, at lunch today, Larry was sitting next to Yale Kamisar! What's up with all the Yale?

Ackeman Suggests Supermajority Judicial Confirmation Bruce Ackerman (Yale, as if you didn't know) argues for supermajority confirmation of judges (based on the German model) in a Los Angeles Times editorial today. Here is a taste:
    After World War II, the Germans embraced the American example and created their Constitutional Court to exercise judicial review. In contrast to our practice, however, their laws require a two-thirds majority in the Legislature for appointments to this highest court. This means that the minority party can veto extremists, pushing nominations into the center.

Does Better Deterrence Lead to Retributivism? Paul Robinson (Penn) answers yes in Criminal Justice in the Information Age: A Punishment Theory Paradox up this afternoon on SSRN. The premise of Robinson's argument is that postulate that technology may result in a dramatic increase in the likelihood of punishment being imposed, but that the result may be a move, as a matter political reality, to more a more retributivist system. Here is a taste:
    [A] more effective deterrent threat is likely to result in a reduced public concern about crime generally. The deterrent effectiveness inherent in even a desert distribution might well be enough to cause crime to fade as the significant social problem that it is today. It would be easier to justify injustice necessary for crime control in a world where crime is out of control than in one in which crime is no longer a serious problem.
Robinson is concerned with issues similar to those tackled by Philip Pettit in his Is Criminal Justice Politically Feasible? (blogged earlier today). And Robinson's thesis is related to that advanced by Dan Kahan in his The Theory of Value Dilemma: A Critique of the Economic Analysis of Criminal Law, blogged in this space on February 11, 2003. Why are criminal law theorists focusing on the causal mechanisms (social forces) that shape the criminal law?

Dudziak Squared Mary Dudziak (Southern Cal) posted two pieces to SSRN yesterday. Who Cares about Courts? Creating a Constituency for Judicial Independence in Africa is forthcoming in the Michigan Law Review and Exporting American Dreams:Thurgood Marshall and the Constitution of Kenya is a working paper.

Catching Up With Princeton, Part II And while I was researching Pettit's move to Princeton, I realized that I had not provided a link to the Political Philosophy Colloquium there. This is a very exciting series, with papers this academic year by G.A. Cohen, Bernard Williams, Dana Villa, Jerome Schneewind, and Arlene Saxonhouse so far. Susan Moller Okin is up next week. More on this later.

Today on SSRN: Pettit on Criminal Justice Philip Pettit (Princeton University - Department of Politics formerly Australian National University [where a more extensive homepage still resides]) posted Is Criminal Justice Politically Feasible? to SSRN thing morning. This will be coming ou in the Buffalo Criminal Law Review (Kudos to the review for landing this!). A word about the paper in a moment. This is the first I had heard about Pettit's move to Princeton. Pettit is, of course, one of our most important political philosophers (he will also teach in Philosophy at Princeton). His works include A Theory of Freedom: From the Psychology to the Politics of Agency,, Republicanism: A Theory of Freedom and Government, Not Just Deserts: A Republican Theory of Criminal Justice and Reasons, Rules, and Norms: Selected Essays. This move strengthens Princeton in both politics and philosophy. Back to essay. Pettit's essay investigates an all too obvious fact--that criminal justice systems do not match up well with any of their theoretical justifications. Pettit borrows "the outrage dynamic" from nineteenth-century historian Oliver Macdonagh. Macdonagh was concerned with explaining various reform movement, and argued they went through a three-state sequence. Here is Pettit's summary:
    On the assumption that criminal justice systems fail to live up to any of the established rationales for their existence, the paper asks after why this might be so and what, if anything, might reduce their resistance to the effects of systematic, reasoned discussion. The answer is developed in three sections. In the first, I describe a dynamic in policy-making that was first identified by nineteenth century studies of the rise of the administrative state - I call it the outrage dynamic - and I show how this force also operates in the case of crime. In the second, I look at the upshot of this dynamic for criminal sentencing policy, arguing that it makes it difficult for democratic politicians to enact or maintain any policies, no matter how well argued or successful, that routinely fall short of what by cultural standards are the maximal, acceptable sanctions. Finally, in the third section I identify one institutional arrangement - putting decisions at arm's length from elected politicians - that might make it politically feasible to shape the penal system by reasoned debate.
This is just the start of Pettit's very interesting and important essay. I saw Pettit speak at the British Society for Ethical Theory in the Netherlands (three years ago?) and his performance was brilliant. I hope we will be seeing more of him at interdisciplinary events.