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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Sunday, August 31, 2003
Legal Theory Calendar
    Thursday, September 4 Friday, September 5 Saturday, September 6
      At Oxford on Saturday, there will be a Colloquium in Honour of Christopher Taylor. Here is the lineup:
        Sir Anthony Kenny (Oxford) topic to be confirmed Professor Jonathan Dancy (Reading): "What Reasons Do" Professor Gavin Lawrence (UCLA): "Aristotle and Free Time" Dr Roger Crisp (Oxford): "Hedonism Reconsidered" Professor Christopher Taylor (Oxford) `Courage and Wisdom in the 'Protagoras' and the 'Nicomachean Ethics''.

Muller on the National Constitution Center Eric Muller blocs on the National Constitution Center over at the Conspiracy. Muller agrees with my observation that the centerpiece of the museum (an multimedia presentation combining a live actor with high tech visual images and audio) doesn't actually say much about the Constitution itself. He continues:
    But I do not view this as a flaw, especially in a museum that is trying to reach John and Jane Q. Citizen, not John and Jane Q. Law Professor. I saw the presentation as drawing attention to two things: the originality, promise, and perpetual reworking and renewal of the American constitutional experiment in self-rule (on the one hand), and the (primarily equality-based) flaws embedded in that experiment (on the other). Sure, neither of these themes turns on a precise reading of Articles I, II, or III. But don't those themes capture the essence of American constitutional history about as well as you're going to be able to do for the general public in 18 minutes?
I couldn't disagree more. Perhaps Eric and I have vastly different ideas about the intelligence and capacities of the American public. I believe that John and Jane Q. Citizen have the interest and ability to learn something of substance about the Constitution. And this is especially true of those who have decided that they want to go to the National Constitution Center--a self-selected audience that is likely to be eager to learn something about what the Constitution actually says. I agree with Eric that popular sovereignty and equality are important themes in American constitutional theory, but would it have detracted from those theme to mention the 14th amendment to the Constitution or some of the provisions of the bill of rights or the idea of limited powers in Article One? Perhaps, Eric and I simply disagree about what could be accomplished in 18 minutes. Obviously, that span is insufficient for depth, but it is more than ample to serve what should be the Center's mission--to interest those who attend in what the Constitution itself says and how that language has made a difference to our history. Sadly, the Center fails on that score. Eric's own example--the complete failure of the Center to confront the Korematsu case is itself compelling evidence of the tragically wasted opportunity.

Saturday, August 30, 2003
Blogging from Philadelphia: Natural Law in a Secular Society
    It is Saturday afternoon in Philadelphia at the annual meeting of the American Political Science Association. The panel is hosted by the Committee on the Political Economy of the Good Society, and it is title Roundtable on Natural Law a Secular Society. The Chair is Robert George (Princeton, Politics). (Frustratingly, the speakers are limited to 10 minutes. This is a terrible format for scholarly presentations.) He begins with a critique of title of the symposium, by questioning the assumption that America is a secular society. And George is right, the category of the secular is frequently substituted for the category of the pluralist. The United States is a pluralist society but not a secular one. George begins to stray from the topic of the panel, discussing the meaning of the religion clauses and the religious test clauses, but finally works his way round to the topic of natural law. George then introduces the panel.
      Randy Barnett is up first. (You can download his paper from SSRN: here is the link.) Barnett is well known for his theory of natural rights, and he begins his talk by observing that the theory of natural rights is not well-known among those in the legal academy. (I wonder if Barnett is as right about this today as he was when he first made this claim several years ago.) Barnett’s view is that natural-law and natural-rights reasoning have the structure of a hypothetical imperative: Given the nature of X if you want achieve Y, then you must do Z.
        Comment: Barnett consciously elides the question whether ends themselves are given by nature. This move is fair enough—Barnett’s point is to avoid the strong assumptions required by the idea of natural ends. But in an important sense the natural law (as opposed to natural rights) tradition is all about the naturalness of ends.
      Natural rights then are principles of action that required for humans to achieve their ends, given the nature of humans and the world in which they live. What their ends? Barnett’s answer is “to pursue happiness.” Natural rights theory simply identifies the space (or sphere of autonomy) that is necessary for humans to achieve the ends that all humans share. Barnett emphasized the difference between natural rights and natural law, which as Barnett understands it is concerned with what individual actions are conducive to happiness.
      Herman Belz (University of Maryland) is next. He asks: is there a natural law, what is it, how is it to be made effective, and what does it have to do with religion, what is the metaphysical ground of natural law? Belz says that the significance of natural law is to constitute an order to human flourishing. Belz then quickly moves through a laundry list of recent natural law scholarship. Belz then shifts to the question whether “natural law” is a useful bit of terminology, quoting Russell Hittinger for the proposition that it is not. He then jumps again, talking about “natural law” as a theory of law and legal authority. Belz then argues for a position that directly contradicts Barnett, arguing that unless natural rights begin with moral premises, they lack moral standing. At this point, Belz’s argument is completely obscure; I simply had no idea what he might be trying to say.
      Stephen A. Simon (University of Maryland) follows Belz. Simon disarmingly admits his status as a graduate student. He asks: “How do we recognize natural rights discourse, where do we find it, does it make a difference?” He signals that he we also address the question as to what role natural rights play in constitutional discourse? Simon complains that the Supreme Court frequently reduces rights to a balancing of interests and suggests that natural rights discourse offers alternative to this. He then turns to the word “liberty” in the 14th Amendment of the United States Constitution. Simon then turns to the question whether natural rights analysis is sufficiently determinate to guide particular constitutional decisions. Unfortunately, he runs out of time, just as things are starting to get interesting.
      Karol Soltan (University of Maryland) follows. Soltan starts by making a distinction between the natural law of the natural law versus positivism debate. And natural law can also be a distinct body of law. What kind of law is this? (Soltan refers to the famous “natural law . . . is discovered” passage from Cicero’s De Re Publica.) Natural law, he says, is universal and unchanging. Soltan notes that these claims of universality and atemporality is seen as implausible. Soltan notes that the usual reason given here is epistemic but that Cicero’s claims are ontological. Natural law can be unchanging, even if opinion about its content changes. Soltan then briefly suggests a possible connection between natural law and basic human rights.
      Christopher Wolfe (Marquette University) is the next speaker. Wolfe suggests four conception of natural law: (1) human beings have natures that direct how we should live—a very general and abstract but indeterminate conception; (2) there is a stable human nature that sets limits on the means by which humans can achieve a satisfactory existence; (3) a natural order of beings whose fulfillment consists in their realizing their innate potential (e.g. development of the human excellences or virtues); (4) natural law as understood by Aquinas, connected to the grasping of self-evidence first principles. Wolfe then suggests “natural law liberalism,” a common good the emphasizes the individuality and dignity of each individual, the plurality of ways of human life, and the importance of liberty.
      Discussion: The initial discussion focuses on Barnett’s distinction between natural law and natural rights. George is particularly interested in the relationship between his account of the common good as the end of society, which does suggest the importance of liberty, but which George argues requires more than rights. George argues that common good is the key concept. Barnett does not disagree with the abstract formulation, and emphasizes that even on his libertarian view, rights are not the whole story. Barnett uses “rightful” and “wrongful” and “good” and “bad.” What law can do, Barnett argues, is prohibit wrongful activity. It can regulate but not prohibit rightful activity. Wolfe asks whether it would be a violation of the rights of others to disobey a conscription law? Barnett replies that conscription laws are themselves violations of natural rights. Barnett notes, however, that this goes to the substance of one’s theory of natural rights—as opposed to the general structure of natural rights, per se. George then throws this question on the floor: Can there be natural law if strict materialism is true? Unfortunately, this topic is dropped and the discussion turns to the question whether religion is necessary at what I would call a “rhetorical” or “psychological” level. George himself suggests that religion can open one to the idea of a moral order, or, in the case of some religions, close one to that idea. Sotiris Barber jumps with a question for George on whether this openness or closedness should be a criterion by which one selects are religion—a question that seemed to take the discussion far afield of the topic at hand.
    All in all, a stimulating if somewhat unfocused and bombastic session. It is shame that George and Barnett could not have gone at each other directly--now that would have bee a show!

Download of the Week Each Saturday, I recommend one of the new papers discussed on this blog from Sunday through Saturday as the download of the week. This week my recommendation is Mark Tushnet's Clarence Thomas's Black Nationalism, forthcoming in the Howard Law Journal. Tushnet is without doubt one of the most creative, thoughtful, and intellectually rigorous constitutional theorists working today. He was, of course, one of the most important members of the Critical Legal Studies movement, and he continues to write with unusual clarity and depth about the fundamental issues of constitutional theory. If you already know Mark's work, you have likely downloaded the paper already. If you do not, you are in for a treat.

Barnett on Natural Rights at APSA Today at the American Political Science Association meeting in Philadelphia, Randy Barnett is presenting The Imperative of Natural Rights in Today's World on SSRN. Here is the abstract:
    If there is any group that really needs to understand the concept of natural rights, it is professors of constitutional law. The document they teach was written by a generation who uniformly believed in natural rights, used the concept to justify a violent revolution from their mother country, and professed their continued commitment to natural rights long after the separation - a commitment that only intensified in the years that culminated in the Civil War and the adoption of the Fourteenth Amendment. Yet few constitutional law professors know much, if anything, about this fundamental concept even as a historical matter, much less as a concept worthy of continued application in today's world. The prime evidence of their lack of knowledge is the fact that they use the terms "natural rights" and "natural law" interchangeably despite the historical and theoretical distinctness of these terms. In this paper prepared for a panel sponsored by the Political Economy of the Good Society to be held at the annual meeting of the American Political Science Association, I will provide what I hope will be viewed as a readily accessible explication of these concepts that has as much practical application today as it did in the days of John Locke or James Madison. Although this is decidedly my take on natural law and natural rights, I think it is true to the heart of the concept and can be used to make sense of historical materials that are otherwise inexplicable to modern constitutional scholars. And this vision of natural rights is as important today as it was in 1776 or 1868.

Friday, August 29, 2003
Blogging from Philadelphia: Pluralism and Political Virtue
    This morning at APSA, I am blogging from Room 106A of the Philadelphia Convention Center. The panel is entitled Pluralism and Political Virtue. The room is full, and I see many distinguished political philosophers and theorists in the room—Philip Pettit (Princeton) is sitting in the row ahead of me, and William Galston is four rows ahead. Nancy L. Rosenblum (Harvard) introduces the panel, and asks “Who wants to go first?”
      Michael Kochin (University of Tel Aviv & Yale) volunteers. His paper is titled The Unity of the Political Virtues, and he moves quickly past Aristotle and to the question, “What are the qualities of a good American citizen?” and “Are there a plurality of good lives?” Paraphrasing Sabl, Kochin says that one life is a political life, and that a political life can be lived well or badly. Now, Kochin switches to the question whether Americans do or should aspire to the highest political office, the Presidency. Kochin riffs on the theme that wanting to be a professional politician in general or President in particular is a sign of dysfunction. Switching key, Kochin is now improvising on Churchill’s novel Savarola. Political life has decayed, Kochin says, from the noble politics of patronage to the ignoble politics of ideology. He ends on a sour note, ridiculing the notion that politics today could be seen as a noble calling. What happened to the unity of the political virtues? Must be case of topic change twixt the program and the event.
      Mariah Ananda Zeisberg (Princeton) is next up. Her paper is titled Value Pluralism and Constitutional Meaning. Zeisberg’s paper was about one of the central questions in constitutional theory—whether the constitution should settle issues or actually facilitate disagreement. Zeisberg’s thesis is that the constitution should, at least with respect to some issues, allow issues to be unsettled, acting as a locus for dispute and disagreement. To illustrate the way in which constitutional meaning can be “ussettled,” Zeisberg emphasizes the phenomenon of constitutional conflict, giving as an example the tension between “national security” and “freedom of speech.” The constitution, she argues, is silent on the question of how these two constitutional commitments are to be reconciled. Zeisberg then argued that constitutional conflict leads to political benefits. For example, she argued that groups mobilize to make constitutional claims, leading to retheorizing of the underlying value conflicts. In other words, constitutional conflict can serve as a catalyst for the rethinking of important normative issues. Zeisberg then turns to what she calls the settlement thesis. The constitution, she argues, is not designed to settle disputes, but often is designed to enable or initiate them. (Equal protection, she argues, is an example.) The struggle to create constitutional meaning is a form of democratic politics.
        Comment on Zeisberg: I thought this was a smart and interesting paper, but based on the oral presentation, I was a bit puzzled about the way the full normative argument would work. In particular, although I could see that unsettled constitutional meaning has advantages, I wondered how Zeisberg would respond to the conventional litany of disadvantages. For example, unsettled constitutional meaning may undermine rule of law values—by leaving fundamental issues in a perpetual state of uncertainty. Although constitutional conflicts open up opportunities for democracy to operate, they also close democratic channels, especially insofar as judges rather than democratically elected officials are charged with resolution of the constitutional conflicts. I’m sure that Zeisberg has responses. Hopefully, she will put her paper up on the web!
      Andy Sabl (UCLA) presents the final paper, Political Virtues and Value Pluralism. He says that paper is about liberal virtues, and Sable mentions Stephen Macedo, William Galston, Michael Walzer, and Amy Gutmann as among those who have worked on these problems. But, Sabl argues, these accounts of virtue are incompatible. Macedo argues for Millian virtues, while Galston emphasizes bourgeois virtue, and Gutmann Deweyian virtue. Walzer wants to accept more conflict and hence less cooperation. So, Sabl, says, what explains the conflict? We need to distinguish core virtues and ideal virtues. Some virtues really are necessary for the survival of liberal democracy. Everything else is part of a certain idea. There is a debate about where democracy out to be going, and this debate will not be resolved. Sabl continues to argue that virtues are pluralistic. First, because of value pluralism--not everyone can reflect all the virtues. People are different and occupy different roles and fulfill different responsibilities. Furthermore, the political virtues are episodic—things are virtues at one time in history and not at others. Sabl ends with the thesis that civic virtue and political virtue do not overlap. Ordinary citizens do not need to help those in need as do politicians.
        Comments on Sabl: Sabl’s paper was very interesting, but also problematic:
          First, Sabl doesn’t seem to have any concept of a “virtue” operating. As I was listening to his talk, I began to substitute “action” or “behavior” for “virtue,” and nothing seemed to change. This is quite worrisome, as talk of virtue without a concept of virtue can be quite empty. For example, Sabl’s claim that political virtues differ from civic virtues is empty until there is a relatively determinate conception of virtue on the table.
          Second, the distinction between core and ideal virtues—while valuable—misses the important mark. Sabl is trying to cope with disagreement about the virtues, but the core versus ideal distinction doesn’t track the distinction between virtues on which there is consensus and virtues on which there is dissensus. Some virtues in Sabl’s core will be the subject of disagreement, while others which are ideal will be the subject of agreement. A more apt distinction is between thick and thin theories of the virtues. Thin theories make weak assumptions. A thin theory of the virtues is one that can be affirmed by those who disagree on substantive political ideals. A thick theory of the virtues makes strong assumptions. It specifies those virtues are implied by the controversial assumptions of particular controversial political doctrines. A thin theory can become the subject of an overlapping consensus between those who disagree about political substance.
      Jeffrey Tulis (University of Texas, Austin) is the discussant. He finds little to say about Kochin, noting the lack of evidence for Kochin’s thesis politics has “decayed.” Tulis remarks favorably on Zeisberg’s paper, noting that Zeisberg might want to take on Larry Alexander (University of San Diego) and Fred Schauer (Harvard) who argue for the settlement thesis, or something like it. On Sabl, Tulis begins with a well-received joke, noting that he must be getting old, given Sabl’s distinction between the early and late periods in the work of Stephen Macedo. Tulis criticizes Sabl’s distinction between the core and ideal virtues—along lines similar to those I sketched above.
      In the ensuing discussion period, many interesting points are made. Kochin disagrees with Sabl over the role of politicians, with Kochin disagreeing with Sabl’s characterization of citizens as those in need. Sabl addresses the question whether the instrumental view of political virtue is self-undermining, responding that he does not worry about this, since no one listens to political theorists. I ask Andy Sabl what he means by virtue, noting that much of his discussion could be about either action or attitude. Sabl gives a most unsatisfactory answer—saying that this is a problem, but that he doesn’t mean anything deep by virtue but rather is mere dispositions to act. O.K., but then nothing is added by the term “virtue.” Mere dispositions to act are simply actions. Without something deeper—without an account of the mechanism of disposition—there is no point to using “virtue” as the framework for discussion. Philip Pettit asks an eloquent and deeply smart question, which the panel does not quite seem to get. Later, Jacob Levy (University of Chicago) and Zeisberg have a good exchange.
      In further discussion, William Galston makes a few points, one of which is that a functional account of virtue makes the specification of the end the determinant of what counts as a virtue. He emphasizes that Deweyian democracy and socialist democracy are not necessarily liberal democracy. His own account of the virtues, he argues, is based on a particular ideal of liberal democracy. Galston emphasizes that then the importance of virtue becomes an empirical question, quoting Kant’s famous remark about a nation of devils: if we get the institutions right, the distribution of virtues may not matter. Galston says he his own project was to show that Kant was wrong on empirical grounds. As Galston continues to speak, the audience ceases to fidget and listens with rapt attention. His remarks are so illuminating and penetrating that they bring the whole session together in a way that is rare and fine. Sabl responds, but his answer seems confused. He says that the empirical inquiries are value laden, but then talks as if Galston had said that what constitutes “liberal democracy” is an empirical question—missing the point of Galston’s remarks. The discussion continues a bit, with Galston noting that Sabl seems to refer to “equality” as a virtue, an obvious mistake. Sabl writes a promissory note for a vindication of his remarks on this last point.
    The session ends, and I'm off to lunch.

New Papers on the Net Here is today's roundup:
    Juridical and Jurisdictional Disconnects Mark Drumbl Washington and Lee University School of Law Abstract:
      Although extraterritorial trials for human rights abusers certainly achieve some justice, this Article posits - through a case-study of post-genocide Rwanda - that the effects of such trials are circumscribed by the fact they may have little meaning among perpetrators and victims in post-conflict societies. This limited meaning particularly attaches to trials conducted extraterritorially through international tribunals as well as trials conducted in foreign national courts through the exercise of what loosely is called "universal jurisdiction." This circumscribed meaning results in these trials' having limited deterrence effects, although they may go some way to satisfying the deontological need to punish aggressors. Incommensurabilities may arise when the legal culture in which the trial is conducted contrasts with the legal culture of the post-conflict society. These incommensurabilities may reflect deeper divides between "us" in the West and "others" in the rest of the world. These divides are prompted by the fact that international human rights law as implemented through international tribunals is proffered as a putatively "universal" construction, but this may belie its perceived origins in Western legal norms. Moreover, those national courts exercising universal jurisdiction over human rights abuses generally are Western courts, and the subject matter of the jurisdictional exercise often are abuses in the developing world. Assuming the existence of some sort of international legal duty to prosecute systemic human rights abusers, then whatever meaning extraterritorial trials might convey could be enhanced if such trials are carefully constructed and take into account contextual elements such as local culture, law, and history. This way, trials may be geographically extraterritorial, but not as legally, culturally, spiritually, and socially extraterritorial. By way of prescription, this Article offers some preliminary insights relevant to the ongoing prosecutions of Taliban fighters and al-Qaeda terrorists.
    The Juridical Management of Factual Uncertainty International Journal of Evidence and Proof, Vol. 7, p. 1, 2003 Ronald Allen and Craig Callen Northwestern University Law School and Michigan State University-DCL College of Law Abstract:
      Civil presumption doctrine in the United States is unnecessarily complex and essentially unnecessary. Evidence law affords a number of evidentiary devices for managing uncertainty, which civil presumptions, at best, merely replicate, but in a different vocabulary with the attendant unnecessary complexity. We survey the critical similarities of evidentiary devices, which can save time and expense, but seldom affect the final outcome of litigation, and demonstrate the manner in which civil presumptions are mere substitutes for other well known evidentiary devices. We further show the unnecessary complexity introduced by instructions on presumptions. The potential that presumption instructions have for harmful effects on jurors, and the effort required to master the intricate formalities of presumptions, suggest that the main reason for their continued existence is distrust of jurors, and perhaps appellate court distrust of trial courts, and that an appreciation of the extent to which presumptions duplicate other evidentiary devices can be the key to sorely needed reform.
    Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts Harvard Environmental Law Review, Vol. 27, p. 295, 2003 Daniel Barnhizer Michigan State University-DCL College of Law Abstract:
      This Article explores the feasibility of using "givings recapture mechanisms" to promote effective land use management on coastal floodplains. Specifically, current government responses to floods and flood risks-typified by regulatory restrictions on floodplain land use, structural protections, and flood insurance or disaster relief-transfer substantial "givings" to private property owners. These givings have dramatically increased the value of coastal properties and continue to promote or maintain in place unwise and unsustainable coastal floodplain development. Ironically, increased coastal property values resulting from such givings have rendered prohibitively costly one land use management technique that has proven effective at reducing flood losses - public acquisition of high-risk or environmentally sensitive private property. While many scholars and commentators have approached this problem from the perspective of eliminating subsidization of floodplain development, my analysis is unique in that it recommends that government attempt to recapture past givings by offsetting those givings as a credit against the compensation the government must pay when it acquires private floodplain property. Such an approach would protect legitimate investment-backed expectations of landowners while effecting a long-term retreat from coastal floodplains threatened by rising sea levels and increasing hurricane risks.
    Making Sense of the Eleventh Amendment: International Law and State Sovereignty Northwestern University Law Review, Vol. 96, p. 1027, 2001-2002 Thomas Lee Fordham University - School of Law Abstract:
      The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
    Now that abstract is short and sweet!
    Privacy Wrongs in Search of Remedies Hastings Law Journal, Vol. 54, 2003 Joel Reidenberg Fordham University School of Law Abstract:
      The American legal system has generally rejected legal rights for data privacy and relies instead on market self-regulation and the litigation process to establish norms of appropriate behavior in society. Information privacy is protected only through an amalgam of narrowly targeted rules. The aggregation of these specific rights leaves many significant gaps and fewer clear remedies for violations of fair information practices. With an absence of well-established legal rights, privacy wrongs are currently in search of remedies. The American public is beginning to demand that data privacy violators be held accountable. In a recent survey, Internet users overwhelmingly called for sanctions ranging from jail time to blacklisting of organizations that failed to respect privacy policies. Public enforcement actions and private law suits in the United States are just emerging as an important force in the creation of adequate protection for citizens' personal information in American society. This Article first describes privacy rights and wrongs that frame the search for remedies in the United States. In particular, this section focuses on two different types of harm created by the misuse of personal information and the desire to find protective rights: personal or private wrongs and public or societal wrongs. Next this Federal Trade Commission and state Attorneys General have become important "enforcers" against personal wrongs, but their efforts fall short of accomplishing systematic change and fail to provide individual victims with any real remedy. The third part of this Article examines private claims for privacy wrongs. This section explores some tortured efforts to obtain redress for privacy violations and offers a few theories for unexploited and unexplored claims. Finally, this Article concludes with an instrumentalist view of the search for remedies. The current mismatch between privacy wrongs and remedies creates a destabilizing force that will ultimately push in favor of enhanced legal rights for data privacy.
    Everyday Indignities: Race, Retaliation, and the Promise of Title VII Columbia Human Rights Law Review, Vol. 34, Summer 2003 Terry Smith Fordham University - School of Law Abstract:
      The racial gap . . . can only be closed by recognizing it, and by recognizing why it exists. That will not come to pass as long as we insist on dividing people into different camps and then swearing that differences don't count or that repeated blows to the soul shouldn't be taken seriously. For the truth is that the often hurtful and seemingly trivial encounters of daily existence are in the end what most of life is.
    Adverse Selection in Insurance Markets: An Exaggerated Threat Peter Siegelman Fordham University School of Law Abstract:
      Adverse selection is the process by which insureds who know their own risk of loss take advantage of this information to choose insurance coverage in a way that works to the detriment of their insurer. This paper demonstrates that the views of law and economics scholars studying insurance, as well as policy makers and judges, have been shaped by a fear of adverse selection, a fear that I claim is overstated. After documenting the existence of these fears, I demonstrate that the empirical basis for the importance of adverse selection is limited, the economic theory underlying the phenomenon is not robust, and that there are alternative plausible theories of insureds' behavior that lead to startlingly different results. Adverse selection does sometimes occur, but it has cast too large a shadow on insurance law and regulation.
    Is Land Special? The Unjustified Preference for Real Property in Regulatory Takings Law Eduardo Penalver Fordham University - School of Law Abstract:
      In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court, by limiting the scope of its new per se rule to real property, made clear that it viewed property in land as entitled to a higher degree of protection against regulatory takings than other forms of property. In so doing, it made explicit what had been an implicit favoritism towards real property in the modern law of regulatory takings. The Court gave two reasons in Lucas for its favoritism towards land: the historical treatment of land in the American legal tradition and the expectations of property owners themselves. Neither of these explanations, however, can carry the weight of the Supreme Court's distinction. Nor can the Court turn to normative theory in support of its position. Libertarianism, utilitarian theory, personhood theory, public choice theory, and natural law theory, which together constitute a comprehensive cross-section of the normative accounts of property and takings law, all fail to support a categorical distinction between real and personal property in the regulatory takings context. Because favoritism towards land within regulatory takings law is unjustified, the Lucas doctrine (and, indeed, regulatory takings doctrine as a whole) should apply equally to real and personal property or not at all. The Court's own apparent discomfort with the implications of applying Lucas's per se rule in the context of personal property suggests problems with the Lucas rule itself. And, to the extent that the modern expansion of regulatory takings law has been made more palatable by its artificially narrow focus on land, the unjustified nature of that narrow focus may be a reason for rethinking that expansion.

Conference Announcement: Law, Loyalty, and Treason
    On October 10, 2003, the University of North Carolina will host a conference entitled Law, Loyalty, and Treason: How Can the Law Regulate Loyalty without Imperiling It?. Here is the description:
      How should the law regulate loyalty? As recently as three years ago, the Constitution's Treason Clause seemed a dead letter, and concerns about national loyalty seemed a relic of a bygone era. The September 11 terrorist attacks changed that. Since then, accusations of treason have swirled around a number of American citizens, including the "American Taliban" John Walker Lindh, the journalist Peter Arnett, the men and women who traveled to Iraq to serve as "human shields" against American military action, and even prominent musicians and actors. Arabs and Muslims in the United States have seen their loyalties questioned on account of their ethnicity and their faith. The Attorney General has equated criticism of the Administration's antiterrorism efforts with support for America's enemies and an assault on American unity. With these issues of treason and allegiance back in the spotlight, this Symposium will gather leading legal scholars and historians at the University of North Carolina School of Law to examine the past, present, and future of the law's relationship to loyalty. Scholars from fields as diverse as labor and employment law, constitutional history, and the philosophy of the criminal law will provide a rich account of the challenges of regulating loyalty by law. And an impressive array of historians and legal scholars will examine conflicts and crises of loyalty that arose at key moments in American history, including the early Republic, Reconstruction, both World Wars, the Korean Conflict, the Cold War, and Vietnam. From these presentations, both conceptual and historical, the Symposium will invite debate and reflection on how law can both enforce and imperil loyalty during times of crisis.

Goode on the Whole Person Today at the University of Texas law faculty workshop series, Steve Goode does an internal workshop titled "Meeting of the Committe of the Whole Person."

Thursday, August 28, 2003
My Dinner with Dennis
    Earlier Today As you know, I'm blogging from the annual meeting of the American Political Science Association in Philadelphia. The meeting is, of course, mostly political scientist, but as is usually the case, I've run into quite a collection of philosophers, law professors, and others. I've already blogged about the panel on just-war theory that I attended earlier today. But I wanted to briefly comment on a few other odds and ends. This morning I went over to the National Constitution Center--the very model of a modern multimedia museum. Very well done . . . but somewhat of a disappointment, because the exhibition really focuses NOT ON THE CONSTITUTION but on the history of the American people. For example, the high-tech multimedia film combined with a live narrator that starts the exhibit hardly mentions any of the substance of the constitution AT ALL. The preamble is read, but not a word about Article I, II, or III. No mention of James Madison. Not a word about Marbury v. Madison--or any other case. Nothing on the any of the specific provisions of the Bill of Rights or the Reconstruction Amendments.
    Redemption But the Center is redeemed by the final exhibit, a wonderful set of life-sized statues of the signers of the Constitution. They are very well executed, and if you know their writings and speeches, they almost come to life. I was charmed by Madison, with his kind and scholarly face, and a bit put off by Hamilton, who was something of a dandy. Highly recommended.
    And then . . . I almost always have great fun at academic gatherings. As you can probably guess, I love to go to the papers. Sometimes they are terrible, other times dull, but I almost always find panels that are very interesting. There are several at this year's APSA. But everyone knows that the real reason to go to an academic conference is for the conversations in the hall and the dinners with colleagues. I was very fortunate to be included in a small gathering hosted by the Dennis Patterson, the philosopher/academic lawyer from Rutgers Camden (Law) and Rutgers New Brunswick (Philosophy). Patterson is an extraordinary legal scholar. If you want an absolutely a treat try his Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. Pa. L. Rev. 335 (1988). Or even better, his book, Law and Truth, (Oxford University Press 1996). Dennis considers himself a post-modernist--a view against which I have rather powerful prejudices, but Dennis does it with real persuasive power and analytic rigor. The dinner and the conversation were a real delight.
    Good night from Philadelphia!

Gardbaum on the Constitution in the Private Sphere Stephen Gardbaum (UCLA) has posted The "Horizontal Effect" of Constitutional Rights on SSRN. Here is the abstract:
    This article proposes a rethinking of the U.S. position on the reach of constitutional rights into the private sphere, both in domestic and comparative terms. This issue is standardly deemed resolved by the state action doctrine: with one exception, constitutional rights bind only governmental and not private actors. This, however, provides only a partial answer to the general issue for the fact that private actors are not bound by constitutional rights is consistent with various different positions on the extent to which such rights govern their legal relations with one another, and thereby impact what they can lawfully be permitted or required to do. The U.S. answer to this important, second dimension of the scope of individual rights is to be found not in the interpretive labyrinths of the Fourteenth Amendment's state action requirement but more simply and straightforwardly in the Supremacy Clause, which mandates that all law, including private law, common law, and the law relied on in litigation between private actors, is directly, fully, and equally subject to the Constitution. Accordingly, there should be no separate threshold issue of "state action" when the constitutionality of any law - private or public - is challenged, the only genuine issue is the substantive one of whether that law violates the Constitution. This full answer does not render private actors bound by the Constitution but it does mean that in governing their legal relations with one another, constitutional rights have significant impact upon them - limiting which of their interests, preferences, and choices may be protected by law. Comparatively, this position is in fact quite radical and belies the conventional understanding of the United States as creating a rigid public-private distinction in constitutional law. Indeed, in this respect, constitutional rights have structurally greater impact on private actors here than in countries such as Germany and Canada, long thought to be more "horizontal" in approach than the "purely vertical" United States. This insight provides the basis for a revised and clarified spectrum of possible positions on vertical and horizontal effect in comparative constitutional law. The article concludes by analyzing the substantive issue on a comparative basis to assess the constitutionality of various actual and hypothetical laws touching on private race and sex discrimination, and regulating speech between such private actors as employers and employees. The upshot is that the actual impact of constitutional rights on private actors in the United States is not fixed, as the state action axiom suggests, but will vary with changes in their substantive interpretation. For example, a change in the disparate impact rule under the Equal Protection Clause would not merely have significant effects on tax, regulatory and other public laws but would also substantially increase the Clause's impact on private actors. This, finally, suggests the deep interconnection between the structural issue of scope and the substantive issue of the content of constitutional rights.
Gardbaum's paper is forthcoming in the Michigan Law Review.

Blogging from Philadelphia: Just War Theory Revisited
    I am writing this post in Room 201B of the Philadelphia Convention Center on Thursday afternoon. The occasion is the annual meeting of the American Political Science Association. The session is titled “Roundtable on Just War Theory: Walzer’s Just and Unjust Wars revisited.” Dick Arneson put together an excellent panel, drawing an audience of luminaries. Bruce Ackerman is sitting in the row ahead of me, Randy Barnett is to my right and William Galston is just a another yard or two away.
    The first speaker is David Estlund (Brown, Philosophy):
      Estlund’s question is an interesting one. What should a soldier do if she finds herself in an unjust war? The soldier isn’t being asked to commit atrocities, and has volunteered to be in the armed forces. This topic is a fascinating one—I blogged on a paper on this topic several months ago. Estlund’s suggested an honest mistake standard. Analogizing to a police officer participating in a raid, Estlund suggested that an officer can and should participate in a drug raid he knows to be wrong if it is based on an honest mistake by his superiors, but not if the raid was motivated badly, e.g. for reasons of revenge or corruption. This analogy struck me as particularly inapt. Why? Because in the badly-motivated drug raid case, the officer, by participating in the raid, is acting contrary to lawful authority. She is committing a crime, knowingly so. In the case of an ordinary soldier fighting an unjust war, this is simply not the case. In is interesting to think about how the service academies handle this question—one that is of more than theoretical interest to future military officers.
    The next speaker is David Luban (Georgetown):
      Luban’s topic is the justification for the war in Iraq, and in particular, he is concerned on the preventive war argument. This rationale, as everyone agrees, is a revision (probably a significant revision) of the traditional theory of legitimate wars of self-defense. Preventive war, Luban argues, is like preemptive war involving an imminent threat, but without the imminence. Any interesting section of Luban’s paper addressed the concepts of sovereignty and self-determination, which play an important role in Walzer’s argument for the traditional idea that preventive wars are not permitted. Walzer argued that the right of sovereign nations not to be invaded derives from an individual right to self-determination. But Walzer’s idea of self-determination is very, very thin. No democracy is required—mere independence from foreign domination is sufficient. But if that is what self-determination means, then it is not clear that there is any important individual right to self-determination. Luban, however, believes that there is another justification for the international-law prohibition on wars of aggression—simply that war is very, very bad. But this argument does not really apply to the preventive wars against rogue states that pose a large threat. Luban uses Hitler as an example. But, Luban, argues, a very general doctrine of preventive war would lead to too many wars and wars that are too routine. As I listen to Luban’s argument, it seems to be me that he is making a classic slippery slope argument—not necessarily a flaw, but a potential problem to be noted. Luban argues this implies that there is a need for a very narrow doctrine of preventing war—perhaps limited to rogue states with weapons of mass destruction. Luban’s presentation was extraordinarily lucid—typical for Luban, whose writing and speaking is always engaging.
    After Luban, the next up is Jeremy Waldron (Columbia, Law and Philosophy):
      Waldron is interested in a question that I believe is absolutely crucial to this topic—the fact of moral disagreement about the criteria by which wars can be sorted into the just and unjust. Waldron notes that Walzer recognizes the fact of disagreement and debate about what constitutes a just war. Of course, Waldron says, disagreement does not prevent us from theorizing about just war theory, but, Waldron insists, we should not lose sight of the disagreement. Waldron thinks that Walzer’s work is weak, because he imagines that there is a “We” who can argue and reach agreement, and that “We” (as Walzer discussed it) was something like, “We in the United States.” Walzer had in mind disagreements within the U.S. about the justice of the Vietnam war, when he said there is a “we,” who disagree. But disagreements about just wars often cross vast national and cultural divides. Disagreements about just wars frequently are between different moral communities, who have radical disagreements. And now Waldron turns to Kant. Noting that Walzer never mentions Kant in his book, and then presenting Kant’s view—which was in opposition to just-war theory. Kant was skeptical about just war theory, in part because there was no authority to enforce a rule against unjust wars, but also because of the fact of a lack of a common moral framework. Waldron’s final topic was “neutrality,” and in particular the duties of neutral states, which were asymmetrical between just and unjust parties to an unjust war—leading to the obvious problem that the parties to the war are unlikely to agree on who is in the wrong, creating grave difficulties for neutral parties. In international law, this problem led to the emergence of the view that neutral parties were not obliged to take a stand on who was the unjust party. And this view was rejected by the United States in World War II, when we took the view that despite our neutrality we were obliged to help Great Britain against an unjust aggressor.
    After Waldron, the final speaker is Richard Arneson (U.C. San Diego)—whose work I have long admired:
      Arneson begins with the issue of noncombatant immunity, the flouting of which is part of our definition of terrorism. Arneson’s first move is to question whether the fire bombing of German cities really violates noncombatant immunity. Under the traditional theory, it is permissible to bomb munitions factories. Arneson then asks why one cannot bomb the factory workers when they are at home. After all, one can bomb combatants when they are not in combat. Arneson focuses on other ways that noncombatants can become legitimate targets—if they are where they have no right to be, for example. Arneson also touches on Estlund’s topic, noting that the usual view is that soldiers are excused from guilt for fighting in an just war, but Arneson is skeptical of this view, arguing that this view does not accord with our usual view, at least insofar as ignorance or coercion is the basis for the excuse. My reaction to Arneson’s argument here was that he failed to focus on the crucial issue—authority. For example, Arneson argues that he would not be excused from killing his neighbors just because his normally trustworthy wife told him to do so. But this case is not like the case of a soldier in a war, precisely because it differs with respect to authority. Arneson’s wife has no authority to order executions, but officers do have authority to order soldiers into battle. Authority is the key here—not excusable ignorance or coercion.
    All in all, a marvelous session!

Lawson on Wolfenstein & Workshops At Boston University's workshop series today, Gary Lawson, presents "Workshops and Wolfenstein." Lawson's is doing a metaworkshop, i.e. a law school workshop which is about law school workshops. Here is a taste of his very sensible paper:
    The internal workshop is a familiar feature of the law school environment. Such workshops serve both social and intellectual functions within the faculty community. Socially, they are among the few occasions during which large numbers of faculty members assemble in the same room to do anything other than argue about appointments matters or the academic calendar. They are also often the primary, or even the only, way in which faculty members learn what their colleagues in different fields are doing. Intellectually, workshops are intended to improve the work product of the presenters and to sharpen or expand the thinking of the audience members. In practice, however, workshops are often an intellectual disappointment. That is not surprising. There is a powerful tension between the social and intellectual functions of workshops: the features of workshops that make them useful social events often prevent them from being useful intellectual events, and vice versa. And in workshops as they currently exist at every American law school of which I am aware, the social function tends to dominate at the expense of the intellectual.
I would urge you to read Lawson's paper, but sadly it is not available online. He makes a number of very telling points, both critical and constructive about the current state of the workshop. I would like to add one observation: the posting of workshop papers online is beginning to change the workshop dynamic. Lawson sees the social function of workshops as a cause of intellectual disappointment. Perhaps. But I would emphasize a different cause. Some workhsop topics elicit broad interest. Everyone has some interest in the big public law topics. But if you don't work in those areas, you may be disappointed by the lack of intellectual depth your paper generates. (Of course, this all varies hugely from faculty to faculty.) But a workshop accompanied by an online version of the paper, plus some publicity, can change things considerably. I've gotten comments from literally dozens of outside scholars about Internet accessible papers & I think this is becoming increasingly more common. Of course, this raises another question: why hold the live event? Perhaps, in part, because of the social and educative functions that Lawson identifies. One of Lawson's best suggestions is for more early stage workshops. Bravo! And let me add, that it is possible to put together a very good short paper that presents the core of an article lenghth idea in a form that will permit online interaction. Having read dozens (egad, maybe hundreds) of SSRN papers over the last year or so, one trend that I see is the 20 page "idea" paper--the online equivalent of the early stage workshop. Perhaps Gary will put his paper up for us!

Conference Announcement: The State of Play: Law, Games, and Virtual Worlds
    The State of Play: Law, Games, and Virtual Worlds November 13-15, 2003 A Conference Sponsored By Institute for Information Law and Policy at New York Law School and Information Society Project at Yale Law School to be held at New York Law School in New York City From the international Olympics to football pools, communities, both public and private cohere through games. All cultures play. Games reflect our fantasies and reinforce our values. We spend much of our time playing games that immerse us in the world and values of a game designer and inculcate the norms of imagined cultures. With the advent of digital technologies, some games have become multimedia but often solitary and isolating experiences of play, the refuge of "anti-social geeks.” Other computer games have evolved into networked games where any number of participants can play together within the framework and rules of the game. Even those who rarely play multimedia computer games can play networked versions of bridge, cards and other traditional games in cyberspace. Now, with the launch of massive multiplayer on-line gaming, electronic games have gained an even broader reach. A vast number of participants can play together in a game space and the rules of play are dynamic and evolving. The new environments of electronic games, especially those that are massively multiplayer, are not just gamespaces; they are cultures unto themselves. Like real societies, they grow and evolve as their members create rules and norms. Some norms in games are cooperative and democratic, others are dictatorial and dystopic. This interdisciplinary conference will examine the state of play today in an effort to understand the phenomenon of digital games and the virtual worlds they create and to discuss the complex social, psychological, and legal issues to which they give rise. To submit a proposal or for more information, please e-mail: Mr. Chun Li,, Program Director of the Institute for Information Law at New York Law School. Registration and schedule available at

Wednesday, August 27, 2003
Buck and Tusnet Stuart Buck comments on a recent paper by Mark Tushnet, here.

Barnett on Constitutional Theory & More on Posner's Review of Farber Over at the Conspiracy, Randy Barnett blogs on the value of a written constitution and in defense of originalism, here and here. And over at Discriminations, John Rosenberg responds to Posner's review of Farber's book on Lincoln's constitutiton.

Two from Tushnet Superstar constitutional theorist Mark Tushnet (Georgetown) has just posted two new papers on SSRN. Here is the low down:
    Transnational/Domestic Constitutional Law, forthcoming in the Loyola of Los Angeles Law Review:
      The Supreme Court's references to non-U.S. law in deciding constitutional cases, new treaty institutions associated with NAFTA and the WTO, and recent advocacy urging that U.S. courts should make non-U.S. law a rule of decision more often than they have - all these have generated a new critical literature arguing that these developments threaten domestic sovereignty and self-governance. This Essay attempts to describe precisely what the objections are, distinguishing between discrete objections focusing on particular constitutional problems and sovereignty-based objections. I argue that the discrete objections are not terribly strong and that the sovereignty-based ones re-state familiar arguments about judicial activism. The context is new, but the nature of the arguments is not. I conclude by suggesting that the critical literature is a form of interest-group advocacy of precisely the same kind that the literature criticizes as undermining domestic sovereignty and self-governance - which suggests that neither form of advocacy is really troubling.
    Clarence Thomas's Black Nationalism, forthcoming in the Howard Law Journal:
      This Essay examines Clarence Thomas's opinions in education cases, extracting from them themes of black nationalism and strict individualism. These themes are in some tension with each other. I use a similar tension exhibited in two controversies over editorials W.E.B. Du Bois wrote for the NAACP magazine The Crisis as a way of exploring whether the tension can be reconciled. I argue that much of the tension can be resolved by treating black nationalism either as a choice made by African Americans as individuals or as a second-best strategy for strengthening the black community when its members lack effective choice in education. Some tension in Justice Thomas's opinions remains, however, and I suggest that the residual tension derives from Justice Thomas's personal experience in being regarded by dominant legal elites as unqualified for the position he holds.
My very first cite checking assignment as a second year student at Harvard was work on Tushnet's famous and truly excellent article, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harvard Law Review 781 (1983), and my reaction to it has been a shaping experience in the development of my own approach to constitutional theory.

New Papers on the Net Here are the new papers from SSRN:
    The Origins of Felony Jury Sentencing In The United States Chicago-Kent Law Review, Vol. 74, 2003 Nancy King Vanderbilt University School of Law Abstract:
      This article traces the development of jury sentencing in non-capital felony cases in Virginia and Kentucky, as well as the rejection of jury sentencing in Pennsylvania, in the late 18th Century. Several of the explanations that modern commentators on jury sentencing have offered for the adoption of jury sentencing are questioned. In Virginia, where party politics may have affected the choice of jury over judge, pockets of judicial sentencing power remained, inconsistent with a strong preference for the democratic judgment of a jury in punishment over the professional decisions of the judiciary. Kentucky's experience suggests that settlement patterns and legal heritage, as well as distrust of judges, were prime determinants of that state's sentencing policy. An appendix listing early sentencing law for several states is included.
    September 11 in History: A Watershed Moment? Introduction SEPTEMBER 11 IN HISTORY: A WATERSHED MOMENT, Mary L. Dudziak, ed., Duke University Press, Forthcoming Mary Dudziak University of Southern California Law School Abstract:
      Within hours after the collapse of the Twin Towers, the idea that the September 11 attacks had "changed everything" permeated American popular and political discussion. As the Introduction to this edited volume argues, in the period since September 11, the notion that 9/11 changed the nation and the world has been used to justify profound changes in U.S. law, public policy and foreign relations. Bringing together leading scholars of history, law, literature, and Islam, September 11 in History asks whether the attacks and their aftermath truly marked a transition in U.S. and world history or whether they are best understood as part of pre-existing historical trajectories. From a variety of perspectives, the contributors to this collection scrutinize claims about September 11. Essays range from an analysis of terms like Ground Zero, Homeland, and "the Axis of Evil" to an argument that the U.S. naval base at Guantanamo Bay has become a site for acting out a repressed imperial history. Examining the effect of the attacks on Islamic self-identity, one contributor argues that Osama bin Laden enacted an interpretation of Islam on September 11 and asserts that progressive Muslims must respond to it. Other essays by legal scholars focus on citizenship and the deployment of Orientalist tropes in categorizations of those "who look Middle Eastern," the blurring of domestic and international law evident in a number of legal developments including the use of military tribunals to prosecute suspected terrorists, the question of whether September 11 should cause a paradigm shift in international law, and the justifications for and consequences of American unilateralism. This collection ultimately reveals that everything did not change on September 11, 2001, but that some bedrocks of democratic legitimacy have been significantly eroded by claims that it did. Contributors include: Khaled Abou el Fadl, UCLA Law School; Mary L. Dudziak, USC Law School; Christopher L. Eisgruber, Woodrow Wilson School, Princeton University; Laurence R. Helfer, Loyola Law School; Sherman A. Jackson, Department of Near Eastern Studies, University of Michigan; Amy B. Kaplan, Department of English, University of Pennsylvania; Elaine Tyler May, Departments of History and American Studies, University of Minnesota; Lawrence G. Sager, University of Texas Law School; Ruti G. Teitel, New York Law School; Leti Volpp; American University Law School; Marilyn B. Young, Department of History, New York University.
    Partial Cross Ownership and Tacit Collusion David Gilo and Yossi Spiegel Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Faculty of Management Abstract:
      This paper shows how competing firms can facilitate tacit collusion by making passive investments in rivals. In general, the incentives of firms to collude depend in a complex way on the whole set of partial cross ownership (PCO) in the industry. We show that when firms are identical, only multilateral PCO may (but need not) facilitate tacit collusion. A firm's controller can facilitate tacit collusion further by investing directly in rival firms and by diluting his stake in his own firm. In the presence of cost asymmetries, even unilateral PCO by an efficient firm in a less efficient rival can facilitate tacit collusion.
    German and U.S. Telecommunications Privacy Law: Legal Regulation of Domestic Law Enforcement Surveillance Hastings Law Journal, Vol. 54, p. 751 Paul Schwartz Brooklyn Law School Abstract:
      The legal systems of Germany and the United States contain detailed rules that regulate the surveillance of telecommunications by domestic law enforcement agencies. An initial question about this surveillance concerns the relative levels of such activity in Germany and the United States. This Article demonstrates, however, that the available statistics do not permit the drawing of conclusions about the relative amount of surveillance in the two countries. Any comparison based on these data sets proves to be illusory - the official statistics in Germany and the U.S. measure different phenomenon. Despite an absence of a basis for an empirical exploration of relative levels of telecommunications surveillance in Germany and the U.S., it is possible to compare the applicable legal regulations in the two countries. This Article examines both constitutional and statutory regulations. It finds that the U.S. Supreme Court has developed a restrictive vision of the Fourth Amendment that extends its protections only to telecommunications content, but not telecommunications attributes. In contrast, the German Federal Constitutional Court has interpreted Article 10 of the Basic Law, the postwar German constitution, as protecting not only telecommunications content but also telecommunications attributes. This Article also examines the statutory law that governs telecommunications surveillance in Germany and the U.S. It evaluates six categories: (1) legal protection for telecommunications information; (2) legal protection for connection data; (3) legal protection for stored data; (4) legal requirements for data retention or data erasure; (5) legal protection for contents of telecommunications; and (6) the nature of available remedies. In a final section, this Article examines three possible "X" factors, beyond the surveillance regulations expressed in legal regulations, that may affect law enforcement behavior in carrying out telecommunications surveillance in the two countries.
    Myths of Voluntary Compliance: Lessons from the StarLink Corn Fiasco William & Mary Environmental Law & Policy Review, Vol. 27, p. 591 Rebecca Bratspies University of Idaho Abstract:
      On September 18, 2000, a coalition of consumer and environmental groups detected DNA fragments from StarLink corn in Taco Bell taco shells sold in grocery stores. StarLink corn, a genetically modified ("GM") variety of corn, had only been approved for use as animal feed, and not for human consumption. Overnight, StarLink became a "Frankenfood" posterchild-the incarnation of GM critics' worst nightmares. By November of 2000, the FDA exercised its enforcement authority to recall nearly three hundred types of adulterated snack chips, corn flour, and other corn foods. The ensuing crisis paralyzed an entire sector of American agriculture and food production, and badly shook consumer confidence. One company, with one GM crop, managed to contaminate food for millions of households and brought an international commodities market to a standstill. This Article explores the StarLink crisis in some detail to understand how things went so disastrously awry. After a detailed analysis of the regulatory approval process that vetted StarLink corn, the paper uses StarLink corn to explore the structural flaws in this process and to draw lessons about how market forces can support or undercut regulatory regimes. Ultimately, the paper suggests that the deficiencies highlighted by the StarLink fiasco are part of a broader ideological struggle over the proper role of government in the marketplace. Claiming that StarLink corn experience undermined a cornerstone assumption of the United States' regulatory strategy: that voluntary self-policing can be a viable, long-term strategy for managing this revolution in agriculture, the paper proposes a new regulatory approach for GM crops, grounded in both science and in the realities of a market economy. This new approach is aimed at providing the regulatory oversight needed to ensure public health and safety, while still permitting an exploration of biotechnology's promise.
    Irrelevant Internalities, Irrelevant Externalities, and Irrelevant Anxieties David Haddock Northwestern University - School of Law and Department of Economics Abstract:
      Due to the high transaction cost that would be necessary for large numbers of people to negotiate with each other, even those who are sanguine about private markets become reserved when externalities affect large populations. The distinction between private and societal interest is well understood for pecuniary externalities, but neglect of Buchanan and Stubblebine's article Externality has left the same distinction widely unrecognized for non-pecuniary ones. If only a few parties on either side experience a relevant externality within Buchanan and Stubblebine's relevant/irrelevant distinction, private interactions can appropriately internalize costs and benefits across the entire population. Regardless of the perceptiveness of legal and cultural institutions in placing entitlements, and regardless of the level of transaction cost among the universe of the affected, a surprising number of externalities will readily fix themselves. The desirability of corrective intervention is much too easily conceded.

Tuesday, August 26, 2003
Posner Reviews Lincolon's Constitution Richard Posner's review of Daniel Farber's book, Lincoln's Constitution is available on the New York Times website. Here is a taste:
    Those who think it would have been disastrous had the secession succeeded will be inclined to believe that Lincoln was right to suspend habeas corpus. Was he legally right? That is a different question. One answer is that whatever measures are necessary to save the nation from suicide are, if not compelled, at least permitted by the Constitution, whatever the text, history or precedents might seem to imply. There are no limits to lawyers' ingenuity, and Farber is able to generate plausible arguments for the constitutionality of most of Lincoln's acts. With a little more effort he could defend all of them as lawful. For example, Farber endorses a particularly facile ''legal'' justification for Lincoln's suspension of habeas corpus: that since the president can use deadly force against rebels, he should be allowed to detain them indefinitely. But habeas corpus enables a court to determine whether a detained person is a rebel. That is why we try criminals rather than lynch them. (Moreover, Farber slides too easily from the question of whether Lincoln was authorized to suspend habeas corpus to whether he was authorized to flout Chief Justice Roger Taney's order granting habeas corpus, as he did. Officials are obliged to obey judicial orders even when erroneous.) There is a pragmatic argument against this approach, an argument for saying that Lincoln was right to do what he did -- in fact had no choice -- but that what he did violated the Constitution. In this view, it would have been a kind of treason had Lincoln been scrupulous in observing the limitations that the Constitution placed on his authority.
And I think that there is something to Posner's position, but it raises some very interesting questions. In particular, was Lincoln's action unconstitutonal but nonetheless legally valid. Now, that would be an interesting argument!

Volokh on Religion in the Public Square Eugene Volokh had a marvelous post yesterday on the role of religious reasons in public policy. Highly recommended. Volokh is trying to get at an interesting and important distinction. His argument begins with an appealing intuition--that we should tolerate those who violate religious laws for religious reasons. Volokh uses religious toleration of Hindus as an example. Hindu religious practice violates is contrary to a variety of norms deeply embedded in the Judeo-Christian tradition, but very few Americans would support legal prohibition of these practices. But some Americans who would oppose criminalization of Hindu religious practice support criminalization of homosexuality--on the basis of religious commandments that seem relevantly similar to those which would seemingly support criminalization of Hindu religious practices. How can we explain this seeming anomaly? Volokh argues that our deeply held convictions about religious toleration for Hindus should lead to tolerate homosexuality. I urge you to read Eugene's excellent post, and I would suggest the following wrinkles and complexities:
    --Historical Context. When thinking about religious toleration, it is always edifying to remember that religious toleration emerged in a particular historical context in the West. Western culture did not always value religious toleration. Toleration (and the liberal political tradition) emerged after the Wars of Religion in the Sixteenth Century. It was only at the point in our history that it became clear that the fact of pluralism had become a permanent feature of European cultures. The value of toleration emerged from within religious traditions. That is, Protestants and Catholics reinterpreted their own religious traditions and found within them the resources to support the value of toleration. Crucial to this process was the doctrine of free faith, the individual must come to faith through individual choice rather than coercion. Deeply religious adherents of various faiths now believe that their own deep religious beliefs support the toleration.
    --The Role of Religious Belief in Public Policy And here is another wrinkle. For many persons of deep religious faith, there is no line of separation between religious belief and beliefs about political morality. It is all part of a whole, and it is religious through and through. Of course, this varies from faith to faith and individual to individual. Some deeply religious individuals do separate their political beliefs from their religious beliefs, but many do not. If you believe in a comprehensive religious theory of the right and the good, then your stand on every public policy issue is religious. You believe that murder, theft, breaking contracts, etc., are all subject to legal sanction for reasons that rest on deep religious foundations.
    --Contemporary Pluralism in the United States. But of course, in a modern democratic, pluralist, society, there are many different religions and religious views. In the United States, this pluralism has evolved over time. In the colonial period, religious pluralism was seen in terms of Catholics, Protestants, and Jews. (The faiths that slaves brought with them from Africa and that Native Americans already had were ignored by those who wielded power.) Today, the national polity is much more inclusive, with large numbers of Moslems, Buddhists, Hindus, Sikhs, Shintoists, Taoists, and adherents of dozens (or hundreds) of other faiths. And many Americans have deep belief systems that are not easily categorized as religious, not to mention agnostics, atheists, and those who simply do not think about these issues. The pluralism that characterizes contemporary American society is much broader and deeper than the kind of pluralism that emerged in Europe after the Wars of Religion and then migrated with religious dissidents to North America.
    --Public Reason. In such a radically pluralistic society, there is a problem with basing public policy on religious reasons. In the colonial period, there was pluralism, but that pluralism was located in a Judeo-Christian context, in which the majority shared a set of religious texts (the Christian bible, which differed marginally from sect to sect, and the Old Testament which was shared (again with variations) by Jews as well). In this context, the ten commandments, for example, could be taken as common ground. (So engraving them on a courthouse wall would not be seen as a threat to religious liberty or the value of toleration.) "Public reason," the reason shared by all citizens, could include not just common sense, the shared lessons of history, and science--public reason could also include a common religious heritage. But today, this is not the case. If public policy is to be supported by public reason, then explicitly religious views are problematic. Even the most general and abstract religious propositions are controversial, once the relevant group includes Hindus, Buddhists, and atheists.
    --An Ideal of Public Reason. So as a matter of political morality, a pluralist society needs an ideal of public reason. An ideal of public reason is not a law. An ideal of public reason is a standard of political morality. It helps to define an ideal of good citizenship, of what it means to be a good citizen in civic solidarity with fellow citizens who have radically different ideas about God and good. For us, for citizens of a pluralist democracy, the ideal of public reason is likely to require that public policies be justified (or at a minimum, justifiable) on the basis of public reasons. My own preference is what might be called an inclusive ideal of public reason. "Inclusive" in the sense that it says to citizens: bring all your reasons into the public square, both the deep reasons from your religious or philosophical beliefs about ultimate questions, and you shallow reasons--the values (like toleration, liberty, and equality) that are part of our public political culture.
And this brings me back round to Eugene Volokh's argument. Because I am not sure that Eugene's argument works:
    First, I think that Eugene's argument elides an important distinction. Those who oppose toleration of homosexuality on religious grounds do not believe that this issue is relevantly similar to religious toleration. Why not? Because religious liberty is supported by religious reasons. From within a fundamentalist faith, one has the resources to believe that the state should not interfere with religious practice. Many faiths also have resources from within to support a similar legal recognition of pluralism in the case of homosexuals, but not all. From the fact that I believe that the state should not enforce the Ten Commandments insofar as they regulate religious practice, it does not follow that I must believe that the state should not enforce other provisions of the Commandments. (Think murder.)
    Second, I think that Eugene's argument goes astray, because it implicitly assumes that persons of deep faith make a distinction between religious and secular reasons for public policy. Some do. Some don't. And for those who don't, Eugene's argument does not work. Because if you believe that all public policy must ultimately be justified on religious grounds, then it follows that toleration for homosexuality must be given a religious foundation.
But despite these quibbles, I think that I agree with the ultimate thrust of Eugene's argument, which I would put just a bit differently. What I would say is that even persons of deep religious faith, have good reasons to affirm an inclusive ideal of public reason. Of course, working out the details of the argument requires that we get inside the perspectives of various faiths, but we can still see the intuitive core of the argument: an inclusive ideal of public reason is supported by same religious values that support toleration. If you believe in the inherent worth and dignity of the individual and if you believe that religious toleration is a very great political value, then you have the premises from which to build an inclusive ideal of public reason. Here is a simpler version: if you would not want to live in a society where law was justified based on the sectarian premises of a faith that is alien to your own, then you have good reason to affirm the principle that law should be justified on the basis of public reasons--reasons accessible to reasonable persons who share common political values but who differ about deep questions about God and good. And that is why I think that those who advocate the criminalization of homosexuality on the basis of sectarian religious reasons violate an important norm of political morality.

20 Questions Crescat Sententia's latest installment of their interview feature is up. This week the legal theorist Randy Barnett answers 20 questions.

Call for Papers: The Jurisprudence of Justice Ginsburg
    CALL FOR PAPERS: THE JURISPRUDENCE OF JUSTICE GINSBURG To commemorate the visit of United State Supreme Court Justice Ruth Bader Ginsburg to City University of New York (CUNY) School of Law on March 11, 2004, the New York City Law Review plans to publish a special issue focusing on the work and jurisprudence of Justice Ginsburg. The New York City Law Review invites all authors to submit for publication original papers related to Justice Ginsburg. Paper topics may range from Justice Ginsburg’s own gender discrimination work to her majority and dissenting opinions written for the courts on which she has served. We welcome articles from law professors, practicing attorneys, judges and other legal professionals, as well as law students. Contributions should reflect the mission of the New York City Law Review and CUNY Law School: public interest law in the service of human needs. Contributors are encouraged to submit abstracts. Abstracts must be received by September 30, 2003, and should be submitted by via e-mail (in Word format) to Papers must be submitted by December 15, 2003. Papers may be submitted electronically (in Word format) to or on disk via mail to New York City Law Review, Attn: Symposium Editor, CUNY Law School, 65-21 Main Street, Flushing, NY 11367. Anyone wishing to clarify substantive issues relating to the scope of the article should contact Julie Graves, symposium editor, via e-mail at or via telephone at 718-340-4344.

Workshop at Florida State At Florida State, J.B. Ruhl does an internal workshop titled Methodology and the Endangered Species Act.

Monday, August 25, 2003
New Weekend Features Two regular features have been added to Legal Theory Blog. On Saturday, there is the Download of the Week, a recommendation from all the downloadable papers posted from Sunday through Saturday. On Sunday, I will post the Legal Theory Calendar, which will highlight workshops and conferences from the upcoming week. (Yesterday's calendar features workshops at Florida State, Boston University, and the University of Texas.) If you would like your event listed in the calendar or if you can send me information on a workshop/colloquium schedule, please email: lsolum AT sandiego DOT edu.

Constitutional Legitimacy Will Baude of Crescat Sententia and PG of Half the Sins of Mankind have been discussing the topic of constitutional legitimacy. Why should we regard ourselves as bound by a constitution written by the dead hands of generations long past? This question is particularly pressing for constitutional theories that incorporate originalist theories of constitutional interpretation, because such theories privilege the intentions or understandings of the generation that ratified the Constitution (or provisions thereof). Contemporary ratification theories such as that advanced by Justice Brennan (and in a more sophisticated form by Jack Balkin and Sandy Levinson) avoid this problem while incurring others. So what makes a constitution legitimate? Before answering let's get this bit straight:
    Constitutional legitimacy has two dimensions, descriptive and normative. Descriptive constitutional legitimacy is de facto acceptance of the constitution as legitimate. Normative constitutional legitimacy is a concept of political morality.
    One more distinction: legitimacy and justice (or overall rightness) are distinct. A constitution that is just may be illegitimate and vice versa--depending on one's theory of legitimacy and the facts.
So, how can an originalist constitution be regarded as legitimate given the dead-hand problem? That's the subject of a really big book, not even a law review article, much less a blog post, but here are some blog bites:
    --Popular sovereignty. The core idea here is that the constitution has been ratified by "We the People," whereas ordinary legislation is promulgated by our mere agents, the legislators. In contemporary American constitutional theory, this view is strongly identified with Bruce Ackerman, but it is a classic position in constitutional theory, developed in many different forms by many theorists.
    --Reliability. This view associates constitutional legitimacy with the tendency of the system to produce just outcomes. A reliability theory maintains that a constitutional system if legitimate if it meets a threshold requirement for the likelihood that it will produce just outcomes. In contemporary American constitutional theory, Randy Barnett is associated with this view.
    --Comparative legitimacy. This view maintains that a system with a written constitution is legitimate in comparison with the alternatives. For example, the dead-hand problem may be real, but if the alternative is a dictatorship of unelected judges or unconstrained legislative power, following the original meaning of a written constitution may simply be the least-bad alternative.
And there are many other theories as well. If you are interested in this topic, I recommend Randy Barnett's article, Constitutional Legitimacy (click on the title to go to the download page).

New Papers on the Net Here is today's roundup:
    Matthew Stephenson (Harvard University - Department of Government) posts Court of Public Opinion: Government Accountability and Judicial Independence. Here is the abstract:
      This paper contributes judicial politics literature by analyzing the conditions under which the public's ability to hold the elected government accountable might enable courts to exercise independent authority over policy. Using a model of policy-making in a system characterized by formal separation of powers, judicial dependence on government support, asymmetric information between the voters and the government, and political accountability of the policy branch, I show the conditions under which the public will force the government to cede power to the courts. This formal analysis makes three contributions to the literature. First, the model provides a theoretical justification for, and suggests limits to, the common assumption that disregard for judicial decisions is politically costly for the elected branches. Second, the model suggests a systematic account for a number of empirical observations about judicial politics. Third, the model demonstrates how systems of unified or separated powers can emerge endogenously.
    Mario Bergara (Universidad de la Republica (University of Uruguay) - Department of Economics ), Barak Richman (Duke University - School of Law ) and Pablo Spiller (University of California, Berkeley - Business & Public Policy Group) post Modeling Supreme Court Strategic Decision Making: The Congressional Constraint. Here is the abstract:
      This paper addresses the contradictory results obtained by Segal (1997) and Spiller & Gely (1992) concerning the impact of institutional constraints on the U.S. Supreme Court's decision making. By adapting the Spiller & Gely maximum likelihood model to the Segal dataset, we find support for the hypothesis that the Court adjusts its decisions to presidential and congressional preferences. Data from 1947 to 1992 indicate that the average probability of the Court being constrained has been approximately one-third. Further, we show that the results obtained by Segal are the product of biases introduced by a misspecified econometric model. We also discuss how our estimation highlights the usefulness of Krehbiel's model of legislative decision making.
    Amitai Aviram (George Mason University - School of Law) and Avishalom Tor (Harvard University - John M. Olin Center for Law, Economics, and Business) post Information Sharing in Critical Infrastructure Industries: Understanding the Behavioral and Economic Impediments. Here is the abstract:
      This paper is a specialized version, abbreviated and focused on application to critical infrastructure protection, of our paper titled "Overcoming Impediments to Information Sharing." Impediments to information sharing between firms operating critical infrastructure have been identified as a key security concern in the recently promulgated National Strategy for the Physical Protection of Critical Infrastructures and Key Assets. This paper identifies economic and behavioral impediments to information sharing among rivals in general, and rivals operating critical infrastructure in particular. The paper then assesses conditions affecting the severity of these impediments. Finally, the paper takes first steps in developing a framework that will predict more accurately when private information sharing would be suboptimal and suggest how better to align private information sharing with social optimality.
    Brian Kalt (Michigan State University-Detroit College of Law) posts The Exclusion of Felons from Jury Service, forthcoming in the American University Law Review. Here is the abstract:
      The lifetime exclusion of felons from jury service is the majority rule in the U.S., used in thirty one states and in federal courts. The result is that over 6% of the adult population is excluded, including about 30% of black men. The parallel issue of felon disenfranchisement has drawn considerable scholarly attention, despite its lower, declining, and less racially charged numbers. The racial composition of juries has been widely discussed in the literature as well. By contrast, felon jury service has been almost entirely ignored, despite a mass of legislation and appellate litigation, and despite glaring racial disparities. One can hardly argue that the biggest problem with the American legal system is that our juries do not have enough felons on them. Nevertheless, the question of whether and when felons (principally "ex-felons") should serve as jurors involves several larger issues. This article surveys the current law of felon exclusion and surveys its history. It then surveys and proposes constitutional arguments for and against felon exclusion, and concludes that it is constitutional either to exclude felons from juries, as most jurisdictions do, or to include them, as others do. While this result is fairly clear from current doctrine, it exposes flaws and ambiguities in that doctrine. It also undermines the principal justifications for felon exclusion (protecting the probity of the jury, and eliminating inherently biased jurors). Because both exclusion and inclusion are legal, the remainder of the article considers policy arguments for and against felon exclusion: first, the nature of the jury, and whether felon exclusion is compatible with it; next, a similar analysis regarding the treatment of felons; and finally other, general policy arguments. The discussion concludes with a recommendation that while some felon exclusion may be appropriate, it should be carefully considered and should not be based on inflexible generalizations about crimes, criminals, and trials. Instead, felons who are worthy should have a chance to contend as individuals for a seat on a jury, under the same constraints as everyone else.

Sunday, August 24, 2003
Three by Kaplow Louis Kaplow (Harvard) has three new papers up on SSRN:
    The Value of a Statistical Life and the Coefficient of Relative Risk Aversion. Here is the abstract:
      Individuals' risk preferences are estimated and employed in a variety of settings, notably including choices in financial, labor, and product markets. Recent work, especially in financial economics, provides estimates of individuals' coefficients of relative risk aversion (CRRA's) in excess of one, and often significantly higher. However, it can be shown that high CRAA's imply equally high values for the income elasticity of the value of a statistical life. Yet estimates of this elasticity, derived from labor and product markets, are in the range of 0.5 to 0.6. Furthermore, it turns out that even a CRRA below one is difficult to reconcile with these elasticity estimates. Thus, there appears to be an important (additional) anomaly involving individuals' risk-taking behavior in different market settings.
    Public Goods and the Distribution of Income. Here is the abstract:
      This article addresses conceptual issues concerning the distributive incidence of public goods. Solutions depend on the specific purposes for asking the question of distributive incidence - notably, assessing the extent to which various public goods should be provided, determining how the provision of public goods affects the desirability of income redistribution, and providing a meaningful description of the distribution of well-being. In the course of the analysis, a simple and intuitive version of the benefit principle of taxation (qualitatively different from those commonly advanced in pertinent literatures) is presented, and some of the problems confronting empirical attempts to measure the distributive incidence of public goods are resolved.
    Taxation and Redistribution: Some Clarifications. Here is the abstract:
      This essay revisits certain basic features of tax systems as they relate to redistribution. It focuses on how the actual differences between proportional and graduated taxes with regard to redistribution diverge in important ways from what many believe or implicitly assume. The analysis seeks to clarify tax policy debates, including those surrounding classic treatments of progressivity and contemporary flat tax proposals.

The Legal Theory Calendar I am experimenting with some weekend features for Legal Theory Blog. Yesterday, I put up the first Download of the Week. Today, I am trying out Legal Theory Calendar. As the academic year is gearing up, I will be posting again on workshops, conferences, and other events of interest to the readers of this blog. My custom has been to post on an event the morning of the day it happens, but starting this week, I will also post a Sunday Calendar, with a summary of the events for the upcoming week. Here is the first installment:
    Tuesday, August 26 Thursday, August 28 Friday, August 29
      Workshop at the University of Texas Today at the University of Texas law faculty workshop series, Steve Goode does an internal workshop titled "Meeting of the Committe of the Whole Person."