Legal Theory Blog

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

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Thursday, July 31, 2003
Bertram on Cohen Chris Bertram has an impressive post on Gerald Cohen's Facts and Principles (download requires subscription). Chris makes this observation about the main point of Cohen's piece:
    The principal target of Cohen’s article is Rawlsian constructivism. This is because Rawls believes that the way the world is (the facts) enter into the construction of the fundamental principles of justice (via, for instance, the general facts made available to the parties in Rawls’s original position). Cohen believes that Rawls is not altogether consistent here, in any case, since the design of Rawls’s constructivist procedure rests on general claims (that persons are to be considered as free and equal) that are either themselves fact-independent or rest on further principles that are. So, for Cohen at least, Rawls’s putatively fundamental principles of justice aren’t fundamental at all, but merely derivative or regulatory principles that actually derive from deeper fact-independent principles.
And Bertram asks whether Cohen hits the mark:
    Is Cohen’s argument damaging to Rawlsian constructivism? If Cohen is correct, Rawlsians might reasonably, though concessively, reply. They might argue that it is true that if we look at what the logical structure of people’s ethical beliefs ought to be, then fact-independent principles are at the bottom. It isn’t the case then, that what justifies and constitutes our most fundamental commitments is that they derive from a constructivist procedure. But (1), epistemically, such a procedure is the best method for getting at what those commitments are and (2) given “the facts”, the regulatory principles which we are practically most interested in are best seen as the product of a constructivist apparatus. Too concessive? I think most Rawlsians could live with it.
All my books are boxed up, so I find myself frustrated. However, I think there is a problem with Cohen's argument if considered as a critique of Rawls's political constructivism. In particular, the move the Bertram describes as "concessive" seems to me entirely consistent with political constructivism, although Cohen's critique might pose a problem for Kantian constructivism. The reason for this is obvious, and I am not sure how Cohen could have missed it. Rawls is quite clear that the deep foundations for the premises of political liberalism are not supplied by political liberalism itself, but must instead by supplied by the comprehensive religious and philosophical views of citizens. Thus, we take the notion of citizens as free and equal from the public political culture. From the point of view of political liberalism, this is sufficient. I'm quite sure that Rawls would want to say that political liberalism does not need to take a stand on the question whether the ultimate foundations of justice as fairness are (or are not) fact sensitive principles. When Cohen construes Rawls as holding otherwise, he quotes exclusively from A Theory of Justice and from Rawls's essay on Kantian constructivism. Indeed, Cohen never even mentions Rawls's discussion of "political constructivism" from Political Liberalism. Of course, Cohen may not have intended his argument to be directed at Rawls's final position, and the puzzling omission that I note in no way detracts from the interest of Cohen's paper. I've gone on too long, so let me simply say: read Bertram's post and Cohen's paper!
Update: Another impressive post on Crooked Timber by Jon Mandle can be found here. Mandle argues in a different way for the conclusion that Rawls is not Cohen's real target.

Simons on the Precautionary Principle Kenneth Simons, the distinguished tort scholar from Boston University, writes with some comments about the precautionary principle. For my post, go here. Ken's comments are an excerpt (which was only very slightly revised in the published article) from Kenneth W. Simons, Negligence, 16 Social Philosophy & Policy 52 (1999):
    Is it possible to develop a clear, nonconsequentialist formula for negligence, one that accommodates competing values but avoids the problems of a pure (or even a distribution-sensitive) maximizing approach? Consider two efforts--a “disproportion” test, and a “freedom v. security” balancing test. I will conclude that these efforts, while promising, are inadequate. The first is too ill-defined, while the second is too reductionist to capture the full array of values that should be balanced. a. Disproportion test. One possibility is a disproportion test. On this approach, if an injurer’s risky conduct would expose potential victims to expected risks of P x L and could be avoided only at marginal cost B, then, in order for the injurer to be permitted to impose the risk, P x L must not only be greater than B, it must be much (or disproportionately) greater. This could also be called a thumb on the scale test: in weighing the potential victim’s interest in personal security against the potential injurer’s interest in freedom of activity to impose risks, we should place a (heavy) thumb on the scale, giving special weight to the interest in personal security. These tests sound plausible and appealing, but, unless substantially recast, they provide a useless criterion. If we have identified the appropriate factors to balance, and if the method of balancing is also justifiable, then these tests say the following: one should not take a risk (as opposed to taking a precaution against the risk) simply because the advantages of taking the risk are greater than the disadvantages. Rather, one should take such a risk only if the advantages of doing so are much greater than the disadvantages (normally, only if the benefits to the injurer are much greater than the expected injuries to victims, discounted according to their probability). This approach is either indeterminate or irrational. For unless one has a common metric or other justifiable method for measuring the competing interests or values, how does one know whether the interest in physical security and safety is “just” weightier than the interest in freedom of activity, as opposed to “much” weightier, so as to apply the “disproportion” or “much weightier” criterion? On the other hand, if one does have a common metric for measuring the competing interests, or if one does have some other justifiable method of balancing, why shouldn’t the actor simply choose the alternative that furthers the “weightier” value, even if that value is only weightier by a peppercorn? Let me be more specific. Is the interest in avoiding the risk of having one’s arm broken “usually” greater than the interest in driving 10 miles per hour faster, or “usually” greater than the interest in avoiding the expense of a softer bumper? These questions are meaningless unless we specify more clearly both the degree of risk of a broken arm, and the disadvantages of taking a precaution. Yet once we specify these factors, and adopt a justifiable method of balancing, shouldn’t we indeed balance “at the margin”? That is, shouldn’t we examine whether the advantages of any particular action (even a narrowly defined action) exceed the disadvantages? I suspect that the worry about weighing “at the margin” is a legitimate concern about turning moral analysis into a bloodless form of calculation. What one should do should not depend on plugging numbers into a formula. And we should often be suspicious of methodologies that purport to balance along a “razor’s edge,” such that trivial factual differences in the weight of a given factor render an otherwise permissible action impermissible (or vice versa). These concerns are well-founded if the most justifiable method of balancing requires a strong form of commensurability, i.e., translation of all values into a single metric such as money or wealth. But weaker forms of commensurability are more plausible for most moral decisions, including decisions about risky alternatives. For example, consider the question whether a doctor should disclose to a patient all adverse risks of medical treatment of which the doctor is aware. A range of possible rules is possible, from a rule of no disclosure (if the doctor believes that nondisclosure of a particular risk is in the best interest of the patient), to a rule of relatively full disclosure (of all risks that most patients would consider material), to a rule of disclosure tailored to the second-order preference of patients (i.e., disclosure of whatever scope of risks the patient herself prefers to be disclosed). These different rules embody different conceptions of the proper scope of patient autonomy and physician discretion in decisionmaking about medical risks. Whether a given risk should be disclosed in a given case is much more likely to depend on these subtle value judgments than on the precise magnitude of the risk or on the precise financial or temporal burden to the doctor. At the same time, however, even this more qualitative form of balancing will be sensitive to facts. Accordingly, close questions will sometimes arise about whether, for example, a particular risk is one that most patients would consider material. If we conclude that a doctor should disclose a 1% risk that hernia surgery will result in permanent numbness at the location of the surgery, but we find this a very close question, then the doctor might have no duty to disclose a 0.5% risk. In this sense, “marginal” decisions will still occur. The “thumb on the scale” approach might also be designed to express special concern for one value in the balance, relative to some other, deficient way of valuing it. But this concern can be accommodated in a balancing test without suggesting the implausible conclusion that there will never be marginal cases. For example, one might conclude that the social value to be given to patient autonomy is greater than the value that most patients actually express in the marketplace (either because of marketplace distortions in capturing the private valuations of patients, or because recognizing patient autonomy is a collective social good, the value of which transcends the sum of individual valuations). Thus, even if patient surveys reveal that most patients only strongly care about risk information that has at least a 20% probability of changing their mind about treatment, the “thumb” might justify a rule that doctors disclose risk information with at least a 10% probability of changing a patient’s mind. Notice, however, that this use of a “thumb on the scales” is much more limited than the general use described earlier.
If you want to pursue these issues, Ken suggests two articles:
    1. Mark Geistfeld, Reconciling Cost-Benefit Analysis with the Principle That Safety Matters More than Money, 76 N.Y.U. L. REV. 114 (2001).
    2. Gregory Keating, ³Pressing Precaution Beyond the Point of Cost-Justification² 56 Vanderbilt Law Review 653 (April 2003), forthcoming, available at:

Eden on Arneson About a week ago, I posted a link to a new paper by Richard Arneson, entitled Democracy is Not Intrinsically Just. John Eden writes with some interesting comments which you can read on the Legal Theory Annex.

Pryor Cloture Vote Fails Courtesy of the incredible Howard Bash, the AP report is here.

Marston on Judicial Self-Understanding Brett Marston has a very thoughtful and nuanced post on legal realism, legal formalism, and how judges understand themselves. Recommended.

The Precautionary Principle
    Introduction Here is something about blogging that I love: blogging is conversational! A conversation starts with one topic and it naturally flows into another. This has happened recently as a result of some blogging that started with a post by Chris Bertram on Crooked Timber about the goodness of natural foods, things to eat that are recognizably from the earth--I posted a brief footnote to Bertram's very interesting post. The conversation turned towards the possible risks associated with genetically-modified foods and organisms, and from there, to the "precautionary principle." (Stephen Laniel here & my reply here and Stephen Laniel again here.) And so I find myself wanting to say a bit more about the precautionary principle and its limits. Here goes.
    Defining the Precautionary Principle What is the precautionary principle? Honestly, I am not sure I know. I've poked about a bit, hither and yon, and I'm not sure there is a clearly-formulated, well-accepted definition. Last time, I used this definition:
      "the precautionary principle requires us to assign the burden of proof to those who want to introduce a new technology, particularly in cases where there is little or no established need or benefit and where the hazards are serious and irreversible. It is up to the perpetrators to prove that the technology is safe 'beyond reasonable doubt'."
    But Adam Kessel takes me to task for attacking a straw man, and suggests this definition:
      1. People have a duty to take anticipatory action to prevent harm. (As one participant at the Wingspread meeting summarized the essence of the precautionary principle, "If you have a reasonable suspicion that something bad might be going to happen, you have an obligation to try to stop it.") 2. The burden of proof of harmlessness of a new technology, process, activity, or chemical lies with the proponents, not with the general public. 3. Before using a new technology, process, or chemical, or starting a new activity, people have an obligation to examine "a full range of alternatives" including the alternative of doing nothing. 4. Decisions applying the precautionary principle must be "open, informed, and democratic" and "must include affected parties.
    Kessel is certainly right that this statement of the principle is more fully developed, and avoids the implausible "beyond reasonable doubt" standard. Another, very influential statement of the precautionary principle is found in Principle 15 of the Rio Declaration on Environment and Development:
      In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
    This formulation we reaffirmed in the Cartagena Protocol on Biosafety, and it is modeled on the Bergen Declaration on Sustainable Development (and in many other agreements, which are collected here).
    My conclusion is that Adam Kessel's criticism was entirely fair. Although I spent a bit of time searching for versions of the precautionary principle; I really can't say that I found the best, most defensible version. And it turns out that the most authoritative versions are also vague. So let's take a deeper look at the issues the underlie the difficulties in formulating the precautionary principle.
    Untangling the Definition: Burdens of Proof, Persuasion, and Production & Standards of Proof The precautionary principle is concerned with the burden of proof, but in order to get straight about the principle, we need to disentangle what "burden of proof" means. Here one useful way to analyze the notion of a burden of proof:
      --The burden of production is the burden of going forward on an issue. The party (or social actor) with the burden of production on an issue has burden of raising the issue. In a criminal trial, the prosecution has the burden of production on the elements of the crime. Hence, the prosecution goes first.
      --The burden of persuasion is correlative with the risk of nonpersuasion. The party (or social actor) with the burden of persuasion must be convincing (by some standard of proof) with respect to an issue. In criminal trials, the burden of persuasion (like the burden of production) rests with the prosecution. Although the burdens of production and persuasion can be joined together--they can also be pried apart. For example, once a party has raised an issue, the burden or persuasion could then rest elsewhere.
      --The standard of proof is the quantum (not necessarily numerical) of evidence required to meet a burden of production or persuasion. Thus, in criminal trials the burden of production and persuasion is on the prosecution to establish guilt beyond reasonable doubt. In civil cases, the burden of persuasion is on the plaintiff to carry the elements of her case by a preponderance of the evidence. Another standard of proof commonly used in the law is clear and convincing evidence. Decision theorists and policy analysts usually substitute probabilities for the qualitative standards used by lawyers. So an event that is certain to occur has a probability of 1.0. We might might translate the perponderance of the evidence standard as p < 0.5.
    In the context of the precautionary principle, the notion is that the burdens of production and persuasion should rest with the actor (e.g. the individual, firm, or government unit) that wishes to introduce a new technology. Simplifying, we might say that the introducer of a new technology has the burden to establish that the technology is safe by some standard of proof. Of course, it is more complicated. 100% safe would be a silly standard, because it would preclude technologies that produce enormous benefits but small safety hazards. Hence, the burden might be reframed as the burden to show that the new technology's benefits outweigh its costs. Here is the bottom line: a precisely formulated precautionary principle must allocate the burdens of production and persuasion and specify a standard of proof. If the precautionary principle is formulated more vaguely, then it isn't well-defined. And a precautionary principle that is not well defined cannot really be evaluated. We need specificity in order to have a meaningful discussion.
    Decision Theory My discussion of burdens and standards was only the first step towards clarifying debates over the precautionary principle. A second step is necessary. We need to clarify what we mean when we talk about uncertain consequences or risks. Lot's of work on these issues has been done in the discipline (crossing lines between philosophy, economics, mathematics, and policy science) which is usually called "decision theory." We need to distinguish between decision under conditions of perfect information and decisions under conditions of uncertainty:
      Decision With Perfect Information Let's start with the idea of decision given perfect information. By perfect information, I simply mean that we know everything about the relevant consequences of our actions. Decision theory uses operates within a simplified utilitarian framework, but this is not an inherent feature of decision theory. Assuming an act-utilitarian framework and perfect information, the rational decision is the decision that produces the greatest sum of individual utilities as compared with any feasible alternative course of action. Clearly, the precautionary principle is not intended to apply to decision under conditions of perfect information. So we need to examine cases where information is less than perfect.
      Decision Under Uncertainty therefore, let's consider the possibility that we lack certainty about the consequences of the alternative actions or policies we are evaluating. This next bit is crucial: there are two different kinds of uncertainty. I will call these two forms of uncertainty risk and ignorance--but pay close attention to my definitions, because different theorists use these terms in different ways.
        Uncertainty as Risk Uncertainty as risk exists when we can assign probabilities (or ranges of probabilities) to the various possible consequences of actions. Thus, if there is a 50% chance that a genetically modified crop will cause a particular harm (e.g. kill a certain number of Monarch butterflies), that is a condition of risk. Given conditions of risk, decision theory says that one should maximize expected utilities, where the expected utility of an action is the sum of all the utilities associated with the various possible consequences of the action, each discounted by the probability that it will occur.
        Uncertainty as Ignorance Uncertainty as ignorance exists when we cannot assign probabilities (or ranges of probabilities) to the various possible consequences of our actions. Thus, if we believe it is possible that a genetically modified crop will cause a particular harm (e.g. kill some Monarch butterflies), but we cannot say whether that outcome is 100% likely or 50% likely or 0% likely, we are in a condition of ignorance.
    The Precautionary Principle and Decision Theory So now we are in a position to evaluate the precautionary principle. Here is my suggestion. Once we appreciate the difference between risk and ignorance, we discover that the precautionary principle must deal with two, very distinct, problems. Let's consider each separately, and try to get clear about the work the precautionary principle could do.
      The Precautionary Principle and Risk What does the precautionary principle tell us about situations where a new technology creates quantifiable risks of various harms? Once we start to think about this, it turns out there are further subcases:
        First, there is the case where the probabilities have already been assessed. That is, the risks are not only quantifiable, they are quantified. In this case, I don't see any interesting role for the precautionary principle to play. From a utilitarian perspective, we ought to maximize expected utilities. Perhaps, the precautionary principle is meant to address the situation where there is a very low probability of a very great harm. In this situation, society as a whole might decide to adopt an aversion to risk. For example, we might adopt a maximin principle for decision, maximizes the minimum payoff, or more colloquially, avoiding the worst case scenario. So, suppose we determine that planting a GM crop would create a very, very low probability of a catastrophic result, a one in a billion chance of triggering cascading exterminations that would cause a loss that we would value at 10 billion dollars. When discounted by its probability, this loss has an expected value of minus ten dollars--rather insignificant. If this is the upshot of the precautionary principle, it stands in need of justification. Why should we allow remote possibilities to dominate the decision making process?
        Second, there is the case where the probabilities have not yet been assessed, but they could be, by an investment of resources into research. Perhaps, the precautionary principle is telling us that in such cases, the advocate of allowing a new technology should have the burden of establishing the level of risk, before going forward. But there is an interesting problem here. Research is itself costly. But when we decide whether to expend resources on research, we don't know what the result will be. If we invest in costly research and it yields no useful information, we've wasted or money. But it is in the nature of research that one doesn't know the outcome until after the research is done. If the precautionary principle is telling us to do the research before we make the decision, then the question arises: how much should we invest in research? Unless the precautionary principle can answer this question, it cannot provide meaningful guidance in the case at hand.
      The Precautionary Principle and Ignorance This brings us round to the case where we are dealing with ignorance. We are trying to make a decision, but we the risks are unquantifiable. What does the precautionary principle tell us to do? Stephen Laniel's most recent post gives an example of the kind of thinking that advocates of the precautionary principle might engage in:
        To my mind, the biggest danger arising from the introduction of GMOs is that we don?’t know how they?’ll interact in the real world, with real species. A laboratory experiment won?’t even approximate the real phenomenon we?’re concerned about. So what would Solum have us do? Introduce the modified species into the natural environment, then measure the long-term consequences of our actions? Sure, we can try that, but then it would be very hard to reverse our mistakes.
      Because we cannot assess the risks, we ought not introduce genetically modified organisms. Here's another way of getting to the same conclusion. Let's take the suggestion that the precautionary principle places the burden of persuasion on the advocate of a new technology. Let's assume for the sake of argument that the standard of proof is preponderance of the evidence. Thus, the advocate must show by preponderance of the evidence that the proposed new technology is safe (or that its benefits outweigh its hazards). How does that burden interact with a condition of ignorance? The principle seems to say that under these conditions, the new technology may not be introduced. Why? Because if we are talking about a risk that is uncertain in the sense that we lack the information to assess the risks, then the advocate of the new technology will be unable to meet her burden to demonstrate safety (or cost-beneficiality).
      This bit is crucial: In cases of uncertainty as ignorance, allocating the burden of persuasion makes the decision. Why? Because in cases of ignorance, it is simply impossible to meet the burden of persuasion by any standard of proof.
      And this point leads to another: Once we are in the realm of ignorance, the possible gains and losses cut both for and against any given action. This is because the realm of possible good and bad consequences for any action is vast. There is a possible world in which a new GMO causes cascading extinctions that result in the the end of all human life, and there is a possible world in which the same GMO prevents these extinctions. By definiton, we have absolutely no knowledge of the likelihood of these scenarios under conditions of ignorance.
      If the precautionary principle is interpreted to forbid the introduction of new technologies on the basis of possible harms with unknown probabilities, it is irrational. Here is a statement of this argument from
        The precautionary approach to risk can paradoxically increase risks both to human health and the environment. There is a risk of innovation, but there also is a risk of stagnation. Any policy relating to new technology needs to use that risk vs. risk framework. To do otherwise ?– to blindly follow the precautionary principle -- means that anything new is guilty until it is proven innocent. It means that a scientific invention or a new technology that may offer life-saving benefits to millions of people also, because it may present some risks, can be banned or severely restricted. There are high risks involved in avoiding risk through the precautionary principle.
    Taking Stock Let's back up then. I think the precautionary principle is actually many principles. The family of precautionary principles is united by a common concern for decisions about new technology under conditions of uncertainty, but the actual content of the principle varies widely:
      --One version of the precautionary principle simply says that harms should not be ignored solely on the basis that we are not 100% certain that they will occur. A related idea is that risks should not be disregarded pending the completion of research. This version of the principle is common sense, and a sound basis for policy making.
      --Another version of the principle might say that the advocates of new technology ought to come forward with information about risks and/or reasonable investments in research about risks. As a rule of thumb, this seems quite sensible.
      --Another version of the principle might say that the advocates of a new technology have the burden to demonstrate that the technology is safe (or cost-beneficial) preponderance of the evidence. This version makes some sense if we are dealing with quantifiable risks, but is irrational as applied to cases of risk as ignorance.
      --Another version of the principle might say that the advocates of new technology have the burden to demonstrate that the technology is safe (whether cost-beneficial or not) and that this showing must be made beyond reasonable doubt. This version of the principle is just plain nutty. In all likelihood, it would have the consequence of increasing environmental harms and preventing the adoption of new technologies that would have great benefits to the environment.
      --And there are undoubtedly, many other ways to formulate a "precautionary principle."
    Conclusion Frankly, when I started writing about this topic, I thought I was against the precautionary principle. After doing more research, I realized that there were some versions of the principle that I could support. But the more that I worked on this topic, the more I became convinced that the phrase "precautionary principle" is hopelessly muddled. Of course, diplomats may like the principle for precisely that reason, but from the point of view of good policy analysis and scholarship, I am inclined to think that we would be better off without using the phrase "precautionary principle." If we continue to use this phrase, then we ought to be careful to define it, and in particular, to be clear about burderns of persuasion, standards of proof, and the distinction between risk and ignorance.

Wednesday, July 30, 2003
Weatherson on Naturalist Ethics What a joy Crooked Timber has been! Surf over to philosopher blogger Brian Weatherson's post entitled Ethical Naturalism reredux Here is a taste:
    [N]aturalists deny nature has a purpose. True enough, but not much follows from that. A little analogy. Consider a crowd in Times Square on a typical work day. The crowd as a whole has no discernable purpose whatsoever. It isn’t like New Year’s Eve where the purpose is unintelligible, there just isn’t a group purpose there. But the individuals in the group can have purposes. One might be looking for food, another for theatre tickets, and another (I’m told) for where all the porn shops have gone. It might be disheartening to think of all of nature as an aimless Times Square crowd write large, but even if we do, that doesn’t entail that none of the constituent parts have purposes.
I have a trilogy of recent posts on naturalist ethics: (1) Naturalist Ethics, (2) Metaethical Prejudice: More Remarks on Ethical Naturalism, and (3) Natural Goodness: From Facts to Values.

The Crooked Timber of Monkeykind If you are interested in programming and especially if you have ever worked on a database project, you will want to gread Tom Runnacles post here. This is the line I love:
    [Y]ou can’t get a project which is behind its schedule back on track by adding more code-monkeys to it.
How can it be that institutions forget this principle almost the minute after they learn it?

More from Non-Volokh on Pryor For Juan's latest, go here. My comments are here and here.

Hasen on the Recall Rick Hasen (Election Law Blog) has an editorial entitled Horse before cart in recall challenges on the California recall election in the Sacramento Bee. Here is a taste:
    There are . . . significant similarities between the Florida and California controversies. Both involve numerous parties using election law challenges brought in multiple venues as part of a larger political strategy - a trend that predates, but that was accelerated by, the Florida controversy. Thus, the California anti-recall litigation strategy of going to state and federal court and throwing up numerous arguments to see what sticks follows not just Bush v. Gore, but also controversies last year in New Jersey over Sen. Robert Torricelli's replacement on the ballot and in Minnesota over absentee ballot changes in light of Sen. Paul Wellstone's death.

Bertram on Cohen I posted yesterday (Natural Goodness: From Facts to Values) on Gerald Cohen's very recent article Facts and Principles, in the Summer 2003 issue of Philosophy and Public Affairs. Chris Betram makes a very interesting observation about Cohen's argument:
    One thing worth noticing about Cohen’s view is that even though most of the discussion is about ethics, it applies to normative principles quite generally. This being so, it ought to apply to such principles in other domains (including epistemology and the theory of rational action) and that if it threatens naturalism in ethics it also threatens naturalistic programmes in those areas.
The core idea of Cohen's argument is that any normative principle that is fact dependent will be fact dependent for a reason, and that the reason will always turn out (in the end) to be a normative principle that is not fact dependent. If Bertram is right, then Cohen's argument has very broad philosophical implications--extending beyond moral and political philosophy to epistemology, rational choice theory, etiquette, and applied disciplines (e.g. engineering). Interesting.

More on Facts and Values T.J. Lynn writes with a very keen comment on the use of functionalist explanation by Richard Dawkins, posted here at the Legal Theory Annex.

No Nukes Courtesy of Rick Hasen and Howard Bashman, Geoff Earle has a story entitled ‘Nuclear option’ out, on The Hill. Here's the beef:
    Senate Republican leaders have shelved their plans to exercise a “nuclear option” to break free stalled judicial nominees — at least for now. The leaders, frustrated by a Democratic filibuster of several nominees to the U.S. Circuit Court of Appeals, as well as other judges, apparently have concluded that the swift parliamentary action being contemplated would be counterproductive. That’s because, as the current thinking goes, it would enrage Democrats while Majority Leader Bill Frist (R-Tenn.) is seeking to move an ambitious legislative agenda through the chamber.
This is no surprise. The problem with the so-called nuclear option is that the Democrats could retaliate--most simply by refusing to cooperate with unanimous consent on routine matters by asking for roll call votes. But the real test of the Republican's willingness to use the nuclear option would be a Democratic filibuster of a Supreme Court nomination. For my discussion of this issue, see Breaking the Deadlock: Reflections on the Confirmation Wars. With the Senate unwilling to go to the mat for the President, another question comes to the fore: will President Bush now consider more extensive use of the recess appointments clause?

Call for Papers
    The Northern Illinois University College of Law announces its 13th annual Law Review Symposium, which will focus this year on "Emerging Issues in Equal Protection Jurisprudence." The Symposium will bring together legal scholars and practitioners to present the most recent understandings of how the legal systems of the United States address the critical social issue of equal protection. The Symposium's goal is to highlight the manner in which legal systems both fulfill their roles in responding to equal protection violations as well as fail to fulfill these roles. The Northern Illinois University Law Review is an academic legal journal devoted to discourse on legal issues of public concern. The summer 2004 issue will be devoted to papers submitted for the production of the 13th annual Symposium. Non-traditional journal articles, such as essays, letters, and booknotes will be considered for publication as well. The Law Review Symposium Editor announces a call for papers for this issue. Scholars and practitioners may submit papers for publication only or for inclusion with the Symposium. The Symposium will be held in March 2004. Papers are due by December 1, 2003. For further information, please contact Amy Miller, Symposium Editor, at or at Northern Illinois University Law Review Attention: Symposium Editor Swen Parson Hall DeKalb IL 60115 or by calling (815) 753-0619.

Domain Name Policy Anupam Chander (UC Davis) post The New, New Property, forthcoming in the Texas Law Review on SSRN. Here is the abstract:
    Already, the world of cyberspace is beginning to replicate the inequalities of real space. The distribution of domain names, a basic building block of e-commerce, shows dramatic disparities between the high and low income parts of the world. Americans own most of the world's domain names, including the names of faraway countries, tribes, and cultural events, such as,, and No African or South American company has the lucrative charter that would allow it to award global domain names. The principal cause of this inequality is a domain name system that follows a rule of first possession. This Article critiques this property rule as being founded less on moral reasoning than on an assertion of power. Going further still, the Article argues that the current property rights regime in domain names cannot be justified by any of the traditional philosophical or economic theories underlying our private property system. In rethinking entitlements to domain names, the Article turns to the history of the American public lands and the international law regimes governing global commons spaces, such as the ocean bed, outer space, and Antarctica. We see in each of these cases the effort to craft a system that allocates rights to a common or global resource paying heed to social goals such as distributive justice, environmental protection, and economic development. Thus far, scholars and policy-makers have not paused to consider any such concerns for the world of cyberspace. Drawing upon the insights of diverse disciplines, this Article proposes a global domain name regime that comports with concerns for equality and distributive justice.
For a very different take on these issues, see An Economic Analysis of Domain Name Policy by Karl Manheim & myself, in which we argue that the provision domain name service should be allocated be allocated by markets.

New Papers on the Net Here is today's roundup:
    Edward Lee (Ohio State) posts The Public's Domain: The Evolution of Legal Restraints on the Government's Power to Control Public Access Through Secrecy or Intellectual Property, forthcoming in the Hastings Law Journal. From the abstract:
      The concept of the public domain is the focus of a firestorm of debate, precipitated by some of the most important controversies of our digital age. This debate, however, is deeply flawed in two critical respects. First, the debate has invoked the public domain without a clear understanding of the origin of the term and the first principles courts enunciated in recognizing the concept. Second, the debate has focused almost exclusively on intellectual property law in analyzing the public domain, ignoring the many uses of the term in other areas of law, such as First Amendment rights of access, government secrecy agreements, espionage, the Freedom of Information Act, and regulations governing classified information and munitions lists. This Article aims to correct these two shortcomings in the current debate by tracing the historical development of the concept in intellectual property law and in the areas of law involving government secrecy. This analysis is critical for evaluating not only the government's recent expansions of the scope of intellectual property, but also the government's increased use of secrecy, post 9/11, including in the detention of enemy combatants, deportation of aliens, and removal of materials from government websites. Drawing upon modern evolution theory and Bruce Ackerman's theory of constitutional moments, the Article shows how the various uses of the public domain in intellectual property law and government secrecy cases are all related in origin, structure, and function, and concludes by suggesting how the concept of the public domain may now lie in threat of extinction.
    John Allison and Emerson Tiller (University of Texas at Austin - Red McCombs School of Business) post The Business Method Patent Myth, forthcoming in the Berkeley Technology Law Journal. From the abstract:
      Although business methods previously had been patented, the Court of Appeals for the Federal Circuit first gave them formal recognition as patentable subject matter in 1998. Internet business method patents have been roundly criticized by most observers as being singularly inferior to most other patents. Many have even argued that business methods should not be patentable subject matter. As a result, Congress and the Patent and Trademark Office (PTO) singled them out for special treatment. All of these criticisms were voiced without empirical support. We gathered data on most Internet business method patents issued through the end of 1999 and compared them with a large contemporaneous data set of patents in general. We also compared them with patents in fourteen individual technology areas within the general patent data set. Our comparison focused on several metrics that we believe serve as good proxies for patent quality and value. We found that Internet business method patents appear to have been no worse than the average patent, and possibly even better than most. They also appear to have been no worse, and possibly even better than patents in most individual technology areas. These findings lead us to question the conventional wisdom that these patents were uniquely deficient. We briefly explore some possible explanations for the chasm between the accepted view and what we believe to have been the reality, including the possibility that negative opinions about these patents may have been characterized by an information cascade. More important, we believe that efforts to single out these patents for special treatment not only lacked sound justification in the particular case but also reveal more fundamental problems associated with ex ante definitions to carve out any particular technology area for different treatment.
    Erich Vranes (Vienna University of Economics and Business Administration - Research Institute for European Affairs (IEF)) posts The Final Clauses of the Charter of Fundamental Rights – Stumbling Blocks for the First and Second Convention, forthcoming in European Integration online Papers. Here is the abstract:
      Particular problems in EU human rights protection stem from the final clauses of the EU Charter of Fundamental Rights (Articles 51 ff). This paper examines these key provisions as well as the proposals for amendments which have been put forward by Working Group II of the Convention and which have been accepted by the Convention's Praesidium in February 2003. The author argues that a closer look at the adjustments to the final clauses reveals that cardinal problems with far-reaching systemic implications remain unsettled. This holds true, particularly, for the question of whether Member States will continue to be bound by EU fundamental rights when they derogate from Community law, or "Union law" in future. The same is true, second, as regards the question of whether and under what conditions the supremacy of Community law (or, according to the Praesidium's draft Article 9, "the law of the Union") cannot supersede national fundamental rights. A third fundamental problem has been added, unnecessarily, to the former two through Article 52 para 5 on "rights and principles" which is apt to negatively affect the significance and scope of fundamental rights set out in the Charter. As also the other proposed adjustments can hardly be regarded as adequately addressing actual or perceived constitutional concerns, this paper submits that existing doubts are reinforced as to whether the much-discussed "Convention method" really allows for an appropriate treatment of fundamental, albeit technically intricate problems.
    'Christopher Cotropia (Tulane) posts Arising Under' Jurisdiction and Uniformity in Patent Law, forthcoming in the Michigan Telecommunications and Technology Law Review. Here is the abstract:
      Congress created the United States Court of Appeals for the Federal Circuit in 1982, in part, to establish nationwide uniformity in patent law. The law governing the Federal Circuit's appellate jurisdiction was recently addressed by the Supreme Court's decision in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. The Court held in Holmes that the Federal Circuit's appellate jurisdiction is governed by the well pleaded complaint rule and specifically rejected counterclaims as a vehicle to vesting appellate jurisdiction with the Federal Circuit. The Supreme Court's decision opens the door for claims of patent infringement under 35 U.S.C. Section 271, and other patent claims, to be reviewed by regional circuits, instead of the Federal Circuit. The impact of Holmes will also be felt with respect to a federal district court's removal jurisdiction and exclusive jurisdiction over patent counterclaims. The door is clearly open for the development of substantive patent law outside of the hands of the Federal Circuit and, perhaps even more importantly, outside of the federal courts. The very uniformity Congress attempted to introduce through its creation of the Federal Circuit and a federal patent law system may become undone by the Supreme Court's decision in Holmes. This Article addresses the potential non-uniformity in patent law Holmes may create and concludes that the potential for such a development is real. To prevent these situations from occurring, the effect of Holmes on the Federal Circuit's appellate jurisdiction and federal courts' jurisdiction must be limited and regional circuits and state courts must look to the Federal Circuit for guidance on patent law issues. This Article concludes that the only real solution is a legislative response, with Congress amending Section 1338 in such a way to return the Federal Circuit's appellate jurisdiction, and federal district court's original and exclusive jurisdiction, to their pre-Holmes form.
And here are some additional papers of interest:
    Charles Weir (Robert Gordon University - Aberdeen Business School), David Laing (Robert Gordon University - Centre for the Enhancement of Learning and Teaching) and Mike Wright (University of Nottingham - Nottingham University Business School) post Going Private Transactions and the Market for Corporate Control.
    David Hirshleifer (Ohio State University - Fisher College of Business), Avanidhar Subrahmanyam (University of California, Los Angeles - Anderson School of Management) and Sheridan Titman (University of Texas at Austin - Red McCombs School of Business) post Feedback and the Success of Irrational Investors.

Zwolinksi on Ethical Naturalism Comments continue to roll in on my trilogy of posts on naturalist ethics [(1) Naturalist Ethics, (2) Metaethical Prejudice: More Remarks on Ethical Naturalism, and (3) Natural Goodness: From Facts to Values]. Here is the latest. Matt Zwolinksi (University of San Diego, Philosophy) writes on naturalism in ethics:
    I share some of the worries people like Evans have about naturalistic ethics, or at least, the sort of naturalism espoused by Foot et al. Foot says that "natural goodness" is an uncontroversial notion. This is easiest to see, I think, in the case of artifacts. A sharp knife is better than a dull knife. Why? Because the purpose of a knife is to cut, and sharpness aids this purpose. And how do we know that the purpose of a knife is to cut? Because that's what we made it for! It's hard to see what notions of purpose/function (I'm taking these to be equivalent) could amount to unless they make reference to some *agent* whose purpose is being served. But in the case of artifacts, this poses no problem. It's a little trickier in the case of non-human animals. Take the case you cite in your summary of Foot -- that it's good for a deer to be swift. Why? Presumably, the argument is that a deer needs to be swift in order to survive, and survival is a major part of the purpose of deer. But why is survival a deer's purpose? Why isn't their purpose to provide entertainment to hunters, or to decorate National Parks? Because that's not what the deer aim at? (Do deer *aim* at anything?) Because that's not what they're best suited for, evolutionarilly speaking? (But why should we regard evolution as setting the relevant standards? If human beings were evolutionarilly adapted to slaughter each other, wouldn't slaughter still be wrong?) One argumentative option -- the one which Evans erroneously assumes is the only one -- is to say that God's purpose sets the relvant norms. But there are obvious problems with that for a non-believer. But let's set the problems with animals to the side for the moment. When we apply the analysis to humans, we seem to face an even greater challenge: it seems to fail to account for the *choice* human beings have in setting their purpose. This, ironically, seems to be the position of the younger Foot (in her "Morality as a System of Hypothetical Imperatives" days). For any alleged categorical imperative -- be it "thou shalt not lie" or "thou shalt respond in the third person to invitations written in the third person" -- it seems that a human being could rationally respond by saying "so what?" Doing X might be immoral, or un-American, or against the dictates of etiquette; but if I don't *care* about any of those things, then it's difficult to see how one could charge me with irrationality. In other words, we're lead back to another famous Humean point -- that reason is a slave of the passions. If I don't desire to be moral, then I can't be charged with irrationality for acting immorally. I think there's a way to forge a significant amount of reconciliation between this view and yours. And that is to move from talk of hypothetical and categorical imperatives to *assertoric* imperatives. Assertoric imperatives are simply hypothetical imperatives where the conditional is actually (rather than merely possibly) satisfied. So, perhaps there's no law of reason or nature which binds me to liking basketball, but given that I *do* like it, I ought to play it. One way people like Evans can make sense of what Foot et al. are up to, then, is to understand them as assuming a certain set of desires/goals/ends on the part of human beings, and setting forth virtue ethics as a way to satisfy those desires/goals/ends. IOW, humans didn't *necessarily* have to seek their happiness, but given that they do, and given the way human psychology works, and the way social systems work etc etc, here is a set of virtues which ought to govern human conduct. This seems a reasonable position to me, though it leaves the answers to two important questions uncertain: 1) Is there enough similarity among the ends held by humans to ground a single list of virtues? (And what do we say about persons who reject those ends?), and 2) Is this position "naturalistic"? It takes desires/goals/ends as normative, but why should it? Is there any more reason for taking these as normative than the will of God, or the good of the race or...?

Tuesday, July 29, 2003
Natural Goodness: From Facts to Values
    Introduction I've gotten quite a bit of email and blogospheric reaction to my posts on naturalism and ethics: Naturalist Ethics and Metaethical Prejudice: More Remarks on Ethical Naturalism. My posts were prompted by a remark by Matt Evans on The Buck Stops Here that criticized Richard Dawkins for espousing a naturalist ethics:
      Mr. Dawkins is mistaken here, however, as there are no ethics in naturalism. Naturalism is an acceptance of what is, and ethics is the domain of what should be. There is no way to bridge the is/ought gap without referencing an extra-natural source. If a Bright [or atheist] accepts moral absolutes, such as "it is wrong to kill Jews for being Jewish," he does so by faith. Naturalism cannot take him there. It cannot show him that it is wrong to kill Jews for being Jewish.
    Let me be very clear. My focus is really on this claim by Evans: "There is no way to bridge the is/ought gap without referencing an extra-natural source." As Matt Evans points out in subsequent posts, "naturalism" and "naturalist" are ambiguous terms, which can refer to may different philosophical positions. I am not claiming that Dawkins himself has a viable "naturalist ethics," but I do claim that the use of functionalist explanation by evolutionary biologists points towards a kind of naturalism in ethics. In this post, I will collect a variety of reactions, email and blogospheric, to my points. Thanks to Ken Simons of Boston University, I shall also have quite a bit to say about a recent and important article by the Oxford Philosopher, Gerald Cohen. Here we go.
    Matt Evans's Most Recent Reply I should begin with the most recent reply by Matt Evans, who has been extraordinarily patient with my somewhat sharp remarks. Here is an excerpt from his intelligent and gracious post:
      First, let me thank all of those who have taken the time to respond to my post and send me emails. This is a fascinating topic and I've enjoyed learning the different facets of the argument very much. * * * Another problem is that Lawrence Solum and I are plainly speaking of different naturalisms. He knows of a naturalism that accepts purpose in nature -- that nature has a "purpose." I know of no such naturalism. The definition of naturalism from the Skeptic's Dictionary uses the well-known example of the sex drive, among others, to demonstrate the lack of purpose in nature. This definition tracks perfectly the claim I made about nature having no purpose. Notice too the definitions disavowal of any teleological explanations. * * * The term "teleological explanations" is another point we aren't using similarly. Teleological explanations, to my knowledge, are explanations based on the self-evident purpose (telos) of a thing. The teleological argument for God's existence relies on the assumption that we know the purpose of mankind in the same way we know the purpose of a watch. Solum suggested that the weakness of the teleological argument is when it moves from the premise "nature has a purpose, just like a watch has a purpose" to the conclusion "something must have willed nature to be, just as something wills a watch to be," but I've never encountered this argument. What I have seen many times, starting with Voltaire, Lichtenberg, and Hume, is the denial of the premise that nature has a purpose. As Lichtenberg sarcastically put it, "How convenient that God placed slits in a cat's skin, right where their eyes are!" Foot and Solum, on the other hand, accept the premise but not the conclusion.
    Evans is right that he and I sue "naturalism" and "teleological differently. Perhaps the only clarification here concerns the notion that "nature has a purpose." The kind of philosophical position to which I was pointing does not make that claim. Eyes have a purpose or function. Species have a characteristic way of life. But these claims do not depend on the further, and much grander, claim that nature as a whole has some purpose. There are other bits that could be cleared up, but I think that Matt Evans and I have done enough work for the general shape of the debate to be clear.
    Other Reactions from Hither and Yon
      Also over on The Buck Stops Here, Stuart Buck weighs in and responds to Brian Weatherson's post on Crooked Timber. Worth reading.
      You will also want to read Timothy Sandefur who relates (in wonderful) style, a conversation with a Borkian positivist on ethics, nature, and theism.
      The Curmudgeonly Clerk has an excellent post with the bonus of even more links.
      The author of the Technical Work blog, wrote in regarding the teleological explanation and "purpose" in biology. Go to the legal theory annex for his thoughtful and well-informed remarks, with a wonderful biography from recent work in the philosophy of biology. This post emphasizes that I was not as precise as I should have been on the relationship between Foot's use of function and purpose and the way these terms are (mis)understood by biologists. Importantly, Dawkins does not think that evolution itself has a purpose or function, but the kind of naturalism in ethics that I am discussing does not in any way on there being a purpose to nature itself or to evolution.
      Matthew Bass emailed with a wonderful anecdote about the mating habits of Sea Lions. Do not miss his witty and thoughtful remarks, which I've made available on the Annex.
      And thank you to The Epsitemopolitan and CaffMonster for the nice links.
    Cohen on the Fact Sensitivity of Moral Principles Kenneth Simons (Boston University) wrote to call my attention to a recent article, entitled Facts and Principles, by Gerald (Jerry) Cohen in the Summer 2003 issue of Philosophy and Public Affaris. (Available here, but only to subscribers.) Some discussion of Cohen is quite helpful, because it will, I hope, give a sense for the lively debates about naturalism in ethics that characterize contemporary moral philosophy. Here goes:
      Cohen's Thesis Cohen argues for what I think many will consider to be a radical thesis in moral theory:
        In my view—and this is my thesis—a principle can reflect or respond to a fact only because it is also a response to a principle that is not a response to a fact. To put the same point differently, principles that reflect facts must, in order to reflect facts, reflect principles that don’t reflect facts." (Emphasis added)
      So while I have been arguing for (or more precisely, pointing to arguments for) naturalism in ethics, Cohen is (or maybe only seems to be) arguing against it.
      Context Here is a bit from near the start of Cohen's article that puts his argument in context:
        The thesis to be defended here contradicts what many people (and, I believe, most moral and political philosophers) are disposed to think, to wit, that our beliefs about matters of normative principle (including our beliefs about the deepest and most general matters of principle) should reflect, or respond to, truths about matters of fact: they should, that is,—this is how I am using “reflect” and “respond to”—include matters of fact among the grounds for affirming them. So, for example, many find it obvious that our beliefs about principles should reflect facts about human nature (such as the fact that human beings are liable to pain, or the fact that they are capable of sympathy for each other) and they also think that our beliefs about principles should reflect facts about human social organization (such as the tendency for people to encounter collective action problems, or for societies to be composed of individuals who have diverse interests, and conflicting opinions). These people believe that all sound principles are, as I shall say, fact-sensitive, by which I mean neither more nor less than that facts form at least part of the grounds for affirming them. (Emphasis added)
      Before going further, I should like to note that Cohen's description of the state of opinion confirms that main thesis for which I have been arguing--e.g. that naturalism in ethics is on the table, surely not a defeated and discredited positon.
      A Fuller Description of Cohen's Position But let's get back to Cohen's argument. His formulation of his thesis is intended to be precise, but it is a bit tricky. Some clarity is added by the following passage:
        Suppose that proposition F states a factual claim, and that, in the light of, on the basis of, her belief that F, a person affirms principle P. We may then ask her why she treats F as a reason for affirming P. And, if she is able to answer that question, then her answer, so I believe, will feature, or imply, an affirmation of a more ultimate principle (call it P1), a principle that would survive denial of P itself, a principle, moreover, which holds whether or not F is true, and which explains why F is a reason for affirming P: it is always a further principle that confers on a fact its principle grounding power.
      And here is the example Cohen gives to illustrate what this means:
        Suppose someone affirms the principle that we should keep our promises (call that P) because only when promises are kept can promisees successfully pursue their projects (call that F ). (I am not saying that that is the only basis on which P might be affirmed; that it is one plausible basis suffices for my purposes.) Then she will surely agree that she believes that F supports P because she affirms P1, which says, to put it roughly, that we should help people to pursue their projects. It is P1 that makes F matter here, that makes F support P, but the subject’s affirmation of P1, as opposed to whether or not that affirmation induces her to affirm P itself, has nothing to do, essentially, with whether or not she believes that F. She would affirm P1 whether or not she believed the factual statement F : P1 is not, in her belief system, sensitive to whether or not F is true. (If she came to think that facing broken promises builds character, and that F is therefore false, she would have reason to abandon P but no reason to abandon P1.)
      Now, Cohen goes on to note that P1 might depend on another premise with a factual component (e.g. that the reason we should help people pursue their project is that this will promote happiness), but he argues that it is possible that at the end of the chain, we will find a premise without a factual component (e.g. one ought to promote human happiness). This sets up his main argument.
      Three Premises Cohen's main argument has three premises. Here they are:
        Premise One: "The first premise says that whenever a fact F confers support on a principle P, there is an explanation why F supports P, that is, an explanation of how F represents a reason to endorse P."
        Premise Two: "The second premise of my argument is that the explanation whose existence is affirmed by the first premise invokes or implies a more ultimate principle, commitment to which would survive denial of F, a more ultimate principle that explains why F supports P : for that premise my defense is simply to challenge anyone who disagrees to provide an example in which a credible explanation of why some F supports some P invokes or implies no such more ultimate principle."
        Premise Three: "Armed with these premises, we may ask anyone who affirms a principle on the basis of a fact what further and more ultimate principle explains why that fact grounds that principle and, once that more ultimate principle has been stated, whether it, in turn, is based on any fact, and so on, reiteratively, as many times as may be required until she comes to rest with a principle that reflects no fact, unless the sequence of interrogation proceeds indefinitely. But the third premise of my argument is, simply, a denial that it will so proceed. The case for that premise is threefold."
          "First, it is just implausible that a credible interrogation of that form might go on indefinitely: if you disagree, try to construct one, one that goes beyond citation of, say, five principles."
          "Second, such an indefinitely continuing sequence would require something like an infinite nesting of principles, and few will think that there exist a relevantly infinite number of principles."
          "Finally, an unending sequence of justifications would run against the requirement (laid down in section D above) that she who affirms P has a clear grasp of what her principles are and of why she holds them: for we can surely say that a person who cannot complete the indicated sequence, because she has to go on forever, does not know why she holds the principles she does."
        "To sum up the case for the third premise: the sequence cannot proceed without end because our resources of conviction are finite, and, even if they were not, proceeding without end would violate the self-understanding stipulation." (Formatting added)
      Just to be clear, everything from "Here they are:" to "would violate the self-understanding stipulation." is quoted except the bold Premise One, Premise Two, and Premise Three, and the indenting---all of which I've added to make the structure of Cohen's argument clear.
      Cohen's Argument and Hume on Moving from Is to Ought Now you might think that Cohen's argument is a version of the argument attributed to Hume--that one cannot move from is to ought. But Cohen denies this. Why?
        To see that my argument presupposes no denial that one can go from an “is” to an “ought,” observe that, far from rejecting my thesis, someone who thinks that one can go from an “is” to an “ought” need not deny my thesis, and she must, indeed, affirm it if, that is, and as I shall now suppose, she believes that facts support principles at all. Suppose, then, that someone who does believe that facts support principles also thinks that you can go, by semantically based entailment, from an “is” to an “ought.” Like many other people, she affirms the principle that injured people should be assisted, and, when asked why, she defends that, as other people do, by reference to the fact that injured people suffer pain and/or other disability; for simplicity, I shall stick to pain. But then she must believe the further principle that people in pain should be assisted, and, if asked why she believes that principle, she will say something like this, which distinguishes her view from that of other people, including David Hume’s: That it is a conceptual truth that people in pain should be assisted, that a person does not understand what the words “pain” and/or “assist” and/or “should be” (and so on) mean if she does not think so. But, if this anti-Humean is right, then her principle, if X is in pain, then X ought to be assisted, is insensitive to fact, since it is an entailment, and entailments, being a priori, are insensitive to fact. No change in her beliefs about facts would cause her to doubt the italicized principle.
      Let's not worry too much about this argument: clarification here will take us too far afield. Instead let's go back to naturalism in ethics.
      Is Cohen's Argument a Threat to Naturalism in Ethics? To tell the truth, I'm not entirely sure. Cohen's target is not Aristotle or Foot, it is constructivism, especially Rawlsian constructivism. So Cohen's arguments are not formulated so as to be responsive to arguments for natural goodness. At one level, this is obvious. As I've presented the argument for natural goodness, it depends on premises about what is good for humans, what constitutes human excellence. It isn't about moral principles, per se. Cohen might argue that principles of action that refer to natural goodness must ultimately depend on principles which are not fact sensitive. Let's assume there is natural goodness. We then could add a principle like: Human's ought to aim at that which is good for them. And this principle might turn out to be conceptual in the sense that Cohen indicates in the block quote on Hume, above. That is, it might turn out that the moral principle that says "Go for the good!," is true as a consequence of the meaning of "good" and "ought," and therefore is fact insensitive. But this would not, in any way, threaten the kind of ethical naturalism that I have been explicating. Indeed, such a move seems to me quite cogenial to the Wittgensteinian, Neoaristotelian sort of ethical naturalism that I associate with Foot. (On this point, I am quite ready to be corrected if others know better.)
    Conclusion For me, this has been an extraordinarily interesting and productive exchange. I'd like to conclude by emphasizing again my purpose in posting on this topic: Contemporary debates within moral philosophy do not take Moore's naturalistic fallacy or the Humean argument that one cannot derive an ought from an is as settled. Naturalism in ethics is alive and well.

Non-Volokh on Pryor Juan Non-Volokh has a very thoughtful post on the Pryor nomination & the question whether Pryor's opponents are guilty of anti-Catholic bigotry (he says no). If you are interested in judicial seleciton, be sure to read the whole post. Here is an taste:
    The heart of CFJ’s claim, it seems to me, is not that any Senators or public interest groups opposing Pryor are motivated by anti-Catholic bigotry as such. Rather, it is that some Senators and groups have adopted a standard – a “litmus test,” if you will – that operates as a de facto bar against the confirmation of devout Catholics (among others) to the federal bench. Specifically, some have suggested that anyone who believes abortion is morally wrong in all, or nearly all, cases and that Roe v. Wade led (in Pryor’s words) to the “slaughter of millions of innocent lives” is unsuited for the federal bench. I think this is a reasonable interpretation of the views of some, but by no means all, Pryor opponents. The New York Times, for example, labels such a position “extreme” (as it did in a June 23 editorial) and has repeatedly cited Pryor’s views on abortion as exhibit A in its opposition to his confirmation. The Times also cited the abortion issue as reason to oppose Michael McConnell, since confirmed to the U.S. Court of Appeals for the 10th Circuit. The various abortion rights groups are also clear on this point: they oppose any and all nominees that are opposed to abortion. Some Democratic Senators have said, or at least suggested, much the same thing. If this is in fact the standard – if some of Pryor’s opponents believe that deeply felt, religiously inspired opposition to abortion, disqualifies a nominee for confirmation to the federal bench – then it is the functional equivalent of a “Catholics Need Not Apply” sign, in that it will bar devout Catholics who follow church teachings (among others) from the federal bench.
A few quick points:
    First, on this controversial issue, it is important to recognize the diversity of Catholic opinion. Not all devout Catholics share the Church's views on reproduction, and although their faith requires them to make every effort to understand the teachings of the Church on this issue, if in conscience and after due effort, they find they cannot agree, this does not imply that they are not devout.
    Second, so far as I know, Church teachings do not require devout Catholics who serve as judges to either disqualify themselves or to engage in judicial civil disobedience on the issue of abortion. [I am not sure about the very rare case in which a judge might be required by law to order that an abortion be performed.] Although the Church does affirm a generally natural-law theory of the nature and role of law, this does not preclude a Church member from acting as a judge in a system which does not confirm to natural law as understood by the Church.
    Third, in a pluralist, democratic society, the virtues of civility and tolerance require that we respect our fellow citizens' moral and religious beliefs, even when we strongly disagree with them. Litmus tests that coincide with deeply held religious beliefs are likely to be devisive, and this fact should be considered thoughtfully, before such tests are imposed.
    Fourth, although it is true that a Court of Appeals judge can shape--to a limited degree--the contours of the constitutional right to choice/abortion, that ability is constrained in several ways: 1) by the doctrine of vertical stare decisis, which requires Pryor to respect the Supreme Court's abortion decisions (including Roe and Casey; 2) by the doctrine of horizontal stare decisis, which requires Pryoer to respect prior circuit opinion on abortion issues (unless Pryor is serving on an en banc sitting of the whole Circuit); 3) by the functional constraints imposed by the three judge panels and en-banc courts, meaning that Pryor's views will not prevail unless others agree with him.
Given these observations, I believe that as a matter of political morality, it is inappropriate to oppose Pryor because of his deep opposition to abortion. This does not mean I support Pryor. Although I follow judicial nominations more closely than most, I honestly don't think I have enough information to make that decision. I do think I know enough to say that I wouldn't nominate him myself. And I think that the actions of the Committee for Justice are not particularly helpful. In particular, the television ads inflame the passions and are a singularly inappropriate way to restore civility. Well, that post won't make anyone happy!

Severability & McCain-Feingold Mike Shumsky has posted Severability, Inseverability, and the Rule of Law, forthcoming in the Harvard Journal on Legislation. Has been posted on SSRN. Here is the abstract:
    Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution's separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight. Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court's current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement. With McCain-Feingold poised to arrive shortly at the Supreme Court - and with a sharp division over severability among the special panel's judges - the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development.

Bogart on Hume Lawyer and philosopher John Bogart writes with respect to Hume on the move from is to ought:
    The interpretation of Hume's distinction described in your blog is widespread but erroneous. It is quite unlikely that Hume thought you could not derive ought from is because it would make Book Three more or less nonsensical. It may be wrong, but I do not think it is nonsensical. His theories of ethics and justice depend crucially on natural features of human psychology, which must inevitably lead into a deduction of the sort supposedly barred. I think a better account of what Hume was up to in the passage is a critique on the absence of reasoning from historical patterns of conduct or nature to the 'ought', i.e., the 'ought' often is simply ipse dixit.
My prior posts on this topic are: Metaethical Prejudice: More Remarks on Ethical Naturalism and Naturalistic Ethics.

New Papers on the Net Here is today's roundup:
    Stefan Bechtold (University of Tuebingen Law School) posts Governance in Namespaces, forthcoming in the Loyola of Los Angeles Law Review. Here is the abstract:
      Since the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), the regulation of the Domain Name System (DNS) has become a central topic in Internet law and policy discussions. ICANN’s critics argue that ICANN uses its technical control over the DNS as undue leverage for policy and legal control over the DNS itself and over activities that depend on the DNS. Such problems are not unique to the DNS. Rather, the DNS discussions are an example of the more abstract governance problems that occur in a set of technologies known as "namespaces." A namespace is a collection of all names in a particular system. Namespaces are ubiquitous. They can be found both in real space and cyberspace. Namespaces analyzed in this Article include the DNS, IP addresses, ENUM, Microsoft Passport, peer-to-peer systems, TCP port numbers, public key infrastructures as well as digital rights management and instant messaging systems. This Article also shows that many of its findings can also be applied to namespaces outside of cyberspace – such as bibliographic classification schemes, P.O. boxes, Social Security numbers, as well as the names of DNA sequences, diseases, and chemical compounds. Namespaces are an overlooked facet of governance both in real space and cyberspace. This Article develops a general theory of the governance of namespaces. Designing namespaces and exercising control over them is not a mere technical matter. Rather, the technical control over a namespace creates levers for the intrusion of politics, policy, and regulation. In particular, the technical control may lead to speech, access, privacy, copyright, trademark, liability, conflict resolution, competition, innovation, and market structure regulation. The Article provides several dimensions along which namespaces can be analyzed. From a legal and policy perspective, it matters, for example, whether a namespace is centralized or decentralized, whether the namespace is controlled by a public or private entity, and the degree to which the internal structure is adaptive. These and other dimensions influence how namespaces protect social values and how they allocate knowledge, control, and responsibility. This Article will also demonstrate that the "end-to-end argument" was implemented on the Internet by a particular design of a specific namespace.
    Stacey Dogan (Northeastern) posts An Exclusive Right to Evoke, forthcoming in the Boston College Law Review. Here is the abstract:
      Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons and avoid significantly chilling free expression, courts should at least cabin the right to evoke and ensure that, when utilized, it serves the law's normative goals.
And here is an additonal paper of interest:

Welcome to the Blogosphere . . . to Norman Geras of Normblog, courtesy of Crooked Timber.

Weatherson on the Transatlantic Philosophical Divide & Some Comments About the Legal Academy Brian Weatherson, over at Crooked Timber, has an interesting post reacting to an article in the Chronicle of Higher Education on the differences between academic philosophy in the U.S. and the U.K. The Chronical article mentions interdisciplinary work (more in the U.S.) and participation in public life (more in the U.K.), but I have an entirely different set of observations. I begin with the following premise: mainstream academic philosophy in most of the English speaking world (especially including Australia, New Zealand, and Canada--in addition to the U.S., U.K., and Ireland) is strikingly similar--as I think would be expected. But here are some differences that I percieve (whether real or based on sampling error). First, the philosophical community in the U.S. is much larger and more diverse than in other Anglophone countries. In the U.S., there are actually quite a few Thomist and Continentally-oriented departments--not my experience elsewhere. Second, because the U.S. is just plain big, philosophers (even those working in the same field) tend not to know one another if they reside in different regions (excepting those who work in nationally prominent departments). Third, there is nothing comparable in the United States to the role that Oxford plays in the United Kingdom. Oxford's faculty is huge by comparison to any other UK university. No place in the United States plays the same role. All of these differences add up to subtle differences in the sociology of philosophy. I am very tentative about the following observation, but here goes: I think there is greater rigidity of opinion among philosophers in the U.K. that in the U.S. This is, I'm sure, untrue in many respects. There are, I am sure, lots of U.K. philosophers who are, as individuals, more flexible than most American philosophers. And it would not surprise me if there were particular issues or subfields upon which my generalization does not hold. But the antipathy to melding philosophy with empirical work that the Chronicle story notes might actually be some evidence for the phenomenon that I think I've detected. Let me hasten to add that this point about flexibility is not intended as part of a brief in favor of the superiority of philosphy in the U.S. There would be no point in such a silly contention. My observation is just that--an observation. And one more thing. Here is another comparison: I do most of my academic work in the legal academy, but most of my professional contacts in the UK and the rest of the Anglophone world are in philosophy or political science. And I strongly suspect that this reflects the following. Just as the Chronicle story suggests that U.S. philosophers are more open to interdisciplinary work than are philosophers in the U.K., I suspect that legal academics in the U.S. are both more interdisciplinary and more international in orientation than their U.K. colleagues. This "international" bit needs to be qualified in an important way. I'm quite sure that U.K. legal academics are extenisvely involved in European Union law and EU-related international academic exchange. There is, of course, nothing comparable in the U.S. Please do not be too cross with me for my impressions--they are offered only for what they are worth.

Conference on David Hume The 30th Annual Hume Society Conference will be held today through August 2 at the University of Nevada at Las Vegas. Here is the conference website and the schedule. The papers include:

Monday, July 28, 2003
Metaethical Prejudice: More Remarks on Ethical Naturalism
    Introduction Can one derive an ought from an is? Can natural properties also be moral properties? "No, of course not," is the answer that many well-educated intellectuals would give to these questions, but these matters are not simple and they are certainly not considered settled by the professional philosophers who work on metaethics. Yesterday, I posted on naturalist ethics in response to a post by Matt Evans on The Buck Stops Here. In particular, I presented a thumbnail sketch of one of the most prominent positions in contemporary metaethics--the ethical naturalism associated with the distinguished British moral philosopher, Philippa Foot. My aim was not to reproduce the arguments--way too complex for blogging--but to give the reader a lively sense of the kind of moves that are made. Matt responds in ways that illustrate what I think may be common errors about the lay of the land in contemporary metaethics. Let me try to clear up one or two points.
    Naturalism and Theism Evans's first line of response is based on the notion that Foot's line of reasoning, which moves from the notion of natural goodness for plants and animals to natural goodness for humans rests on the notion of intelligent design. Here is the relevant passage from Evans's post:
      Solum uses the teleological argument, the idea that one can deduce nature's purpose through observation, as the basis for his attack on the is/ought gap. The excerpt from [Philippa Foot] specifically endorses the "teleological explanation." But as anyone familiar with the debate surrounding Intelligent Design (the argument for God's existence based a teleological explanation of nature) knows, naturalists reject the argument precisely because it rests on a teleological explanation. This is why I was so surprised by the content of Solum's defense.
    When Evans uses the phrase "teleological argument," he means, I think, to refer to an argument that assumes a creator or designer. Foot's argument does not work this way. Foot's argument is that we humans can discern what constitutes goodness for plants and nonhuman animals without any reference to creation or design. This form of naturalism neither presupposes nor implies the argument for the existence of God from intelligent design. Moreover, Foot's argument does not assume intelligent design. It does assume that plants and animals have ends or purposes, but this does not require that we also assume a creator or designer. Matt's mistake is illustrated by the following passage from his post:
      All naturalists that I'm aware of specifically deny that nature has any purpose. When someone claims to see purpose in nature, naturalists argue, they are actually just projecting their preconceived ideals. Take something as seemingly purposeful as the sex-drive. If you asked most people for the natural purpose of the sex-drive, they would sensibly tell you that its purpose is to motivate animals to copulate so they'll reproduce. Not so, answer the naturalists. The sex-drive has no purpose. It's just that those animals that have a sex-drive are likely to reproduce. Those with no sex-drive are unlikely to reproduce. Nature didn't try to make animals with sex drives -- nature didn't have a purpose -- animals with sex-drives just happened and they survived.
    But of course, Matt is simply wrong about this. Naturalists, like Dawkins, believe that the sex drive does have a purpose, and that purpose or function is reproduction. Indeed, Dawkins' most famous work, The Selfish Gene is an explication of the nature of that purpose--which Dawkins believes is best understood as explained by individual genes, as opposed to whole genomes, organisms, or species. Evolutionary biologists rely on functionalist explanations as their bread and butter: they couldn't do without them. [Update: Several readers remind me that Dawkins does, of course, maintain that evolution operates blindly, and that genes have no conscious purposes, but whether Dawkins knows it or not, those assertions are not inconsitent with his use of functionalist explanations.
    Noncognitivist Metaethics and Naturalism Evans makes another assumption about my defense of naturalist ethics that it is somehow "logical positivist" or "emotivist." "Emotivism" is a form of noncognivist metaethics. Emotivists assert that moral claims (such as "Courage is good for humans") do not have truth values but instead express emotions. (Noncognitivist in this context simply means does not have a truth value.) Here is what Evans writes in his most recent post:
      I discovered that emotive logical positivism, or descriptivism, is frequently called "naturalism." I suspect [Solum] confused these distinct theories with the same name that don't have anything to do with one another. That's why he offered the emotive theory of logical positivism as a defense of Dawkin's ethics. Naturalism (emotive logical positivism) is based on teleological arguments. Dawkin's naturalism (antagonist of Intelligent Design) rejects teleological arguments.
    First, let me be clear: I was not advocating or describing a noncognitivist position in metaethics. Ethical naturalism assumes cognitivist metaethics. That is, it assumes that propositions like "Courage is good for humans," bear truth values. Second, and more particularly, Philippa Foot's version of ethical naturalism is not some form of emotivism or expressivism or of any other noncognitivist theory. Indeed, Chapter One of her book, Natural Goodness, is an attack on noncognitivist metaethics. Third, "logical positivism" is a position in the philosophy of language, associated with A.J. Ayer and more broadly with the so-called Vienna Circle, that has been out of philosophical fashion for a very long time. One would be hard pressed to find any living philosopher who would admit to being a logical positivist. So it would be very peculiar indeed for one of the worlds most renown moral philosophers (Foot) to be defending some form of logical positivism.
    Conclusion And this brings me round to the reason that I responded to Evans in the first place. Evans is a thoughtful and articulate writer. I read The Buck Stops Here on a regular basis, and I very much enjoy the thoughtful commentary by Stuart Buck and Matt Evans. But Evans simply has no idea what he is talking about when it comes to metaethics. He is sincerely convinced that an atheist evolutionary biologist like Dawkins couldn't possibly have a respectable philosophical foundation for his belief that ethics is grounded in nature. And maybe Dawkins himself doesn't. I don't know. But he could have such a foundation. Ethical naturalism that does not depend on theist premises is a perfectly respectable postion in metaethics. That someone as well-educated and thoughtful as Evans could believe otherwise and confuse Foot's views with the argument for the existence of God from intelligent design or with emotivism is suggestive of the deep philosophical prejudices and misunderstandings that are pervasive among well-educated, sophisticated Europeans and North Americans. And this is a shame, because these metaethical prejudices are pernicious. They suggest that political and moral battle lines must be drawn in certain ways. Crudely put, it is part of our cultural mythology that liberals, atheists, and the left are on the side of moral subjectivism and relativism, whereas conservatives, theists, and the right are on the side of moral objectivism and universalism. I know: very crudely put. But I hope you get my point. Dawkins or someone like him can be a moral objectivist and universalist, and by so placing himself, he will be within a great traditon of Western ethical thought (e.g. Aristotelianism) and within the mainstream of the most sophisticated moral philosophy (e.g. Foot). This is not to say that I am sure that in the end ethical naturalism will be vindicated. Who could be sure of that? But it will take a powerful argument to knock out ethical naturalism. Evans hasn't produced such an argument. He hasn't even come remotely close.
    In addition to this post, I commend Brian Weatherson's post on Crooked Timber, which you can find here, with many interesting comments appended.
    I should mention that I have edited Evans's post to correct a spelling error in my name and to correctly identify Philippa Foot (and not Elizabeth Anscombe) as the source of the quote to which Evans refers.