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, November 30, 2003
Legal Theory Lexicon: Virtue Ethics
    Introduction The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.
    What is virtue ethics? Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of the Greek word for virtue.
    In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:
      Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.
    It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:
    • Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
    • Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
    • Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.
    Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) the central idea of moral theory and deontology focuses on moral rules, virtue ethics focuses on character and human excellence.
    Modern Moral Philosophy Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.
    The Virtues What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.
    The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.
    The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.
    A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.
    Virtue Ethics and Human Good What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons. And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"
    Particularism and Phronesis Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.
    Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.
    Virtue Politics and Virtue Jurisprudence What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.
    What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.
    In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
    One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:
      What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.
    Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.
    Conclusion While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.
    If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!
      Anscombe, G.E.M., 1958, "Modern Moral Philosophy", Philosophy 33:1-19.
      Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press.
      Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press.
      Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell.
      Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press.
      Statman, D. (ed.), 1997, Virtue Ethics, Edinburgh: Edinburgh University Press.
    Links For a collection of prior Legal Theory Lexicon posts, follow this link.

Legal Theory Calendar
    Monday, December 1
      At the University of Chicago's Political Theory Workshop, Jacob Schiff (University of Chicago) presents Different Strokes: Mapping the Terrain of Alterity with discussant: Anne Holthoefer.
      At the University of Chicago's Law and Philosophy Workshop, Professor Ulrich Preuss, Freie Universität, Berlin and Visiting Professor, University of Chicago Law School, will present work on comparative constitutionalism.
      At George Mason's Philosophy, Politics and Economics series, Peter Grajzl & Peter Murrell (Economics/IRIS, University of Maryland Professions) present Politicans and Institutional Reforms.
      At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Tomiko Nagin-Brown (Washington University, St. Louis, School of Law/History) presents Middle class African-Americans' views of desegregation in the era of Brown v. Board of Education.
    Tuesday, December 2
      At Northwestern's Empirical Legal Studies Colloquium, Lisa Bernstein (University of Chicago Law School) presents Custom in the Courts: The Flawed Evidentiary Basis of Article 2's Incorporation Strategy.
      At the University Chicago's Law and Economics Series, Alan Schwartz (Yale Law School) is presenting.
      At the University of Texas Hans Baade presents The Post-Civil War Texas Supreme Court.
      At Oxford's IP Seminar, Tina Piper presents The Unpatentability of Medical Diagnostic Methods: A Promise and its Perils.
      At Oxford's Private and Commercial Law Discussion Group, Donal Nolan presents The Distinctiveness of Rylands v Fletcher.
      At Oxford's Ockham Society, Vladislav Vexler (Oxford) presents Why Isiah Berlin Failed to Ground Liberalism.
    Wednesday, December 3
      At Oxford's Jurisprudence Discussion Group, Dennis Patterson (Rutgers, Camden-Law & New Brunswick-Philosophy) presents Interpretation in Law.
      At Notre Dame Law School, today through December 5, 2003, a symposium entitled The Changing Laws of War: Do We Need a New Legal Regime After 9/11?
      At Northwestern's Law and Economics series, Paul Mahoney (University of Virginia School of Law) presents The Value of Judicial Independence: Evidence from 18th Century England.
      At Oxford's CENTRE FOR CRIMINOLOGICAL RESEARCH Seminar Series, Betsy Stanko presents Between the Home Office, PSAs and a real place: a critical reflection on government targets and doing criminal justice.
      At Tulane's Center for Ethics and Public Affairs, Thomas Pogge will be speaking.
    Thursday, December 4
      At the University of San Diego's Law, Economics, and Politics Workshop, Adrian Vermeule (University of Chicago) is presenting.
      At NYU's Colloquium in Legal, Political and Social Philosophy, J.H.H. Weiler (NYU School of Law) presents A Constitution for Europe? Some Hard Choices.
      At Yale's Legal Theory Workshop, Christine Jolls (Harvard Law) presents Debiasing Through Law.
      At the Princeton Political Philosophy Colloquium, Iris Marion Young will present Responsibility and Structural Injustice.
      At Florida State University, Adrienne Davis (University of North Carolina) presents Re-thinking Slavery.
      At the University of Michigan's Law and Economics series, Richard McAdams is presenting.
      At Boston University, Tamar Frankel is presenting today.
      At the University of Hertfordshire Centre for Normativity and Narrative, Richard Norman (Kent) presents two lectures, Aesthetic Form and the Meaning of Life & The Ethics of War: War and Human Rights.
      At MIT's philosophy series, Jason Stanley (University of Michigan) presents Context, Interest-Relativity, and Knowledge.
    Friday, December 5
      At UC Berkeley's Kadish Center, the General Aspects of Law series, Barbara Fried (Professor of Law and Deane F. Johnson Faculty Scholar, Stanford Law School) presents Begging the Question with Style: Anarchy, State and Utopia at Thirty Years.
      At Oxford's Centre for Socio-Legal Studies, a conference on Islamic Law and Human Rights: An Ethnographic Approach with Fariba Adelkhah, John Bowen, Fikret Karcic, John Kelsay, Werner Menski, Ziba Mir Husseini, Christian Moe, Martha Mundy, Lawrence Rosen, and Mohammad Talib.
      At the University of Buffalo, Ernesto Laclau presents Empty Signifiers and the Logic of Representation with comments by Guyora Binder & Betty Mensch.
      At the University of Texas, Mark Weiner (Rutgers-Newark) presents The Multiple Integrations of the Civil Rights Movement.
      At the Society for Applied Philosophy in London, R. A. Duff (Stirling) & Penny Darbyshire (Kingston University) discuss The Future of the Right to Trial by Jury, with Thom Brooks (Sheffield) as Chair.
      At the University of North Carolina's philosophy series, Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.
      At the University of Bristol's philophy series, Jo Wolff (UCL) presents What is Disadvantage and What Should be Done About it?
      At the University of London's Philosophy Programme, there is a one-day conference, Aristotle on Potentiality and Actuality.

Saturday, November 29, 2003
Michael Smith on Consequentialism Michael Rappaport and I had a recent exchange on the demandingness objection to utilitarianism (Solum-Rappaport-Solum). So I was in the mood for Consequentialism and the Nearest and Dearest Objection--a paper recently uploaded by Michael Smith of the Australian National University's prestigious Research School of Social Sciences. Here is the hypo that starts the paper:
    Imagine that Bloggs is faced with a choice between giving a benefit to his child, or a slightly greater benefit to a complete stranger. The benefit is whatever the child or the stranger can buy for $100 — Bloggs has $100 to give away — and it just so happens that the stranger would buy something from which he would gain a slightly greater benefit than would Bloggs's child. Let's stipulate that Bloggs believes this to be, and let's stipulate, as well, that he believes that the consequences of his actions are otherwise identical. He chooses to give the benefit to his child. What do we learn about Bloggs from his choice? We learn that Bloggs cares more about his child than he does about complete strangers. Nor is anyone likely to be surprised by this, for it just goes to show that he is much like the rest of us. He gives preferential treatment to his nearest and dearest when he acts, those with whom he has a special relationship, much as we do. Now imagine that we ask Bloggs to justify his choice. Suppose he says that he did what was best, and that it was the best thing for him to do because the benefit went to his child . What do we learn about Bloggs from his attempt to provide a justification for giving the benefit to his child? Assuming that this is supposed to be the most basic value relevant to his choice we learn that, in addition to caring more about his child than he does about complete strangers, he thinks that, in so doing, he cares about what is of fundamental value. As he sees things, there is a distinctive form of value — 'relative' value, as it has come to be called (Parfit 1984, p.27) — realised in his giving the smaller benefit to his child. That is what is signaled by his citing the fact that the benefit accrues to his child: this is the special relationship just mentioned. Moreover Bloggs thinks, correctly, that this kind of value wouldn't be realised if he instead gave the greater benefit to the stranger.
The hypo introduces an argument against what Smith calls Big "C" Consequentialism, which Smith defines as follows:
    Big 'C' consequentialism makes two crucial claims. First, it makes a substantive claim about the nature of value. It says that all values are neutral (Parfit 1984). Second, it makes a conceptual claim about the nature of obligation. It says that facts about what we ought to do can be analysed in terms of facts about which of the various things that we can do will maximize value (we will return to the details of this analysis in a moment).
And here is a bit more from later in the paper:
    Big 'C' consequentialism's hypothesis that all values are neutral is very simple. But what the nearest and dearest objection brings out is that the simplicity of the hypothesis doesn't inspire sufficient confidence in us to reject our firmly held conviction that some values are relative. We hear a story like Bloggs's and we are supposed to find ourselves dismissing his attempt to give a justification of his conduct, but we can't dismiss it. We share Bloggs's conviction that there are relative values at stake and that they can be realised by his giving the $100 to his child. Our confidence in the claim that there are relative values is thus greater than our confidence in big 'C' consequentialism's hypothesis that all values are neutral, notwithstanding the fact that that hypothesis purchases an abundance of the heoretical virtue of simplicity. In this way what the nearest and dearest objection brings out is that big 'C' consequentialism is simply incredible.
And finally:
    The epistemological version of the nearest and dearest objection is therefore still very much on the table. This is not, of course, a serious objection to any of Jackson's principle concerns in 'Decision Theoretic Consequentialism and the Nearest and Dearest Objection'. But it does mean that, at the end of the day, we are yet to be told why reflection on the nearest and dearest objection doesn't show that big 'C' consequentialism is simply incredible.
I strongly recommend Smith's paper to those who are interested in consequentialism.
    Jackson, Frank 1991: 'Decision Theoretic Consequentialism Objection', in Ethics , 101, pp.461-482.
    Parfit, Derek 1984: Reasons and Persons (Oxford: Oxford University Press).

Bainbridge on Regulation By Litigation Read this post.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Moral Combat by Heidi Hurd:
    This book explores the thesis that legal roles force people to engage in moral combat, an idea that is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids.
And here is a passage from deep within Hurd's argument:
    Legal theorists have long thought that the authority of the state--of legislative institutions, regulatory agencies, and the courts--is of the practical sort. Certainly it is practical authority that the law claims on its own behalf. When one sits at a traffic light in the middle of the night despite the blatant fact that it would be safe to cross the intersection, one is appropriately thought to take its color as both a (content-independent) reason to sit there and an (exclusionary) reason not to act on the overwhelming reasons to run the light.
And . . .
    Despite the plausibility given by common practice to the traditional notion that governmental institutions possess practical authority, it is not at all clear that obeying traffic signals, paying compensation, an debarring particular sorts of testimony are rational if done because a citizen or official has been so instructed. In short, it is not at all clear that the contemporary concept of legal obligation is not irresolvably paradoxical. If it is a canon of practical rationality that we act on the balance of reasons available to us, and if a government has only practical authority if it can command us to act in ways that may not comport with the balance of reasons as we see it, then obedience to law of the sort required by the exercise of practical authority violates a central principle of rationality. How could it ever be rational to act contrary to the balance of reasons as one sees it solely because one has been told to do so. Such is the paradox of practical authority.
Heidi Hurd is an extraordinarily thoughtful and careful thinker! Highly recommended.

Download of the Week This week the Download of the Week is Matthew Adler's paper Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety. Adler describes the paper in the abstract:
    "Risk assessment" is now a common feature of regulatory practice, but "fear assessment" is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as "costs" for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so on - are often the focus of popular fears. Even more puzzling is the virtual absence of economics scholarship on the pricing of fear and anxiety, by contrast with the vast literature in environmental economics on pricing other "intangible" benefits such as the existence of species, wilderness preservation, the enjoyment of hunters and fishermen, and good visibility, and the large literature in health economics on pricing health states. This Article makes the case for "fear assessment," and explains in detail how fear and anxiety should be quantified and monetized as part of a formal, regulatory cost-benefit analysis. The author proposes, concretely, that the methodology currently used to quantify and monetize "light" physical morbidities, such as headaches, coughs, sneezes, nausea, or shortness of breath, should be extended to fear. The change in total fear-days resulting from regulatory intervention to remove or mitigate some hazard - like the change in total headache-days, cough-days, etc. - should be predicted and then monetized at a standard dollar cost per fear-day determined using contingent-valuation interviews.
Download it while its hot!

Friday, November 28, 2003
Cohen on Who Can Blame the Terrorists at Cambridge At the Cambridge Forum for Legal & Political Philosophy, G.A. Cohen (All Souls College, Oxford) presents Casting the First Stone: Who Can and Who Can't Blame the Terrorists.

Saul on Torturing Terrorists at Oxford At Oxford's Human Rights Discussion Group, Ben Saul presents Torturing Terrorists after September 11: Dershowitz` Torture Warrant.

Bernitz on European Competition Law Convergence at Oxford At Oxford's Institute of European and Comparative Law Seminar Series, Ulf Bernitz presents Convergence of European and National Competition Law: How Far Will it Go?.

Papineau on Genes and Culture at Bristol At the University of Bristol's philosophy series, David Papineau (King's College, London) presents Genes and Culture.

Conference Announcement: The Laws of War at Notre Dame
    Fall 2003 Symposium - December 3 - 5, 2003 The Changing Laws of War: Do We Need a New Legal Regime After 9/11? McKenna Hall - Center for Continuing Education Schedule: Wednesday, December 3rd Small Group dinners with Panelists and Faculty Thursday, December 4th 8:30 am Reception, McKenna Hall 9:00 am - 12:00 pm Panel 1, McKenna Hall 12:00 am - 2:00 pm Lunch at Morris Inn 2:00 pm - 4:30 pm Panel 2, McKenna Hall 6:30 pm Key Note Dinner, McKenna Hall Banquet Room Friday, December 5th 8:30 am Reception, McKenna Hall 9:00 am - 11:30 am Panel 1, McKenna Hall Panels: Thursday - morning US Law: Patriot Act/Due Process/Jurisdiction Moderator: Patricia Bellia, Notre Dame Law School Neal Katyal, Georgetown University Law Center Patrick Baude, Indiana University School of Law Michael Stokes Paulsen, University of Minnesota Law School Saikrishna Prakash, University of San Diego School of Law Thursday - afternoon Enemy combatant/stateless enemy/terrorist Moderator: Mark Kende, Notre Dame Law School John Choon Yoo, University of California, Berkeley - Boalt Hall School of Law & Greg Jacobs, Department of Justice Derek Jinks, University of Chicago Law School Jimmy Gurulé, Notre Dame Law School Friday - morning International Law/Geneva Conventions/Laws of War Moderator: Juan Mendez, Notre Dame Law School Michael Ramsey, University of San Diego School of Law Derek Jinks, University of Chicago Law School Jordan Paust, University of Houston Law Center William Bradford, Indiana University School of Law Admission Fee : $20 faculty&public; Free students

Bagley versus Nard Margo Bagley (Emory University - School of Law) has posted Still Patently Unconstitutional: A Reply to Professor Nard (Minnesota Law Review, Vol. 88, p. 238, 2003). Here is the abstract:
    In Defense of Geographic Disparity (also forthcoming, 88 Minn. L. Rev., Fall 2003), is Professor Craig Nard's response to Professor Bagley's article Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World, 87 MINN. L. REV. 679, 680-682 (2003). In this essay, Professor Bagley addresses Professor Nard's contention that the geographic limitation on prior art can be justified by the incentives it provides for U.S. pharmaceutical development which may enhance public welfare. By refocusing on the provision's constitutional deficiencies, expanding on the myriad costs associated with the provision, and discussing the dangers of maintaining this double standard that is out of step with the realities of both modern and traditional societies, Professor Bagley reaffirms her conclusion that elimination of the geographical limitation is a necessity in this small, small world.

Preece on Common Law & National Sovereignty Alun A. Preece (University of Queensland) has posted The Common Law and National Sovereignty on SSRN. Here is the abstract:
    Both the common law and the concept of national sovereignty have faced increased challenges from the growing impact of international and supranational law in the latter part of the 20th century. This paper will argued that it is not surprising that both face somewhat similar challenges, given that the common law evolved in the Middle Ages essentially as a unique national system in contrast to the spread of Roman Law based systems in most of the rest of Europe. Consequently, the common law system was intrinsically more favourable to concepts of national sovereignty and the latter was generally asserted earlier and more successfully in common law jur,isdictions. Certain common factors, notably geographic isolation contributed strongly to this. Even after the general European acceptance of the concept of national sovereignty at the Peace of Westphalia in 1648, a common law system generally carried with it a more pronounced assertion of national sovereignty. An example is a generally dualist as opposed to monist approach to international law. Another is a generally more reticent approach to constitutional entrenchment of bills of rights, or surrender or national sovereignty to international institutions or organisations.

Baker on Price Discrimination Jonathan B. Baker (American University, Washington College of Law) has posted Competitive Price Discrimination: The Exercise of Market Power Without Anticompetitive Effects (Comment on Klein and Wiley) (Antitrust Law Journal, Vol. 70, No. 3, pp. 643-54, 2003, American Bar Association) on SSRN. Here is the abstract:
    A firm that discriminates in prices faces a downward sloping demand curve, and thus could potentially raise price by reducing output. For this reason, evidence of price discrimination is relevant to assessing the possibility of market power, as antitrust law has long recognized. But price discrimination can be beneficial as well as harmful, and can reasonably be termed competitive if entry is easy. Hence a demonstration that entry is easy rebuts the inference of anticompetitive effect when price discrimination is the basis for proof of market power, breaking the link between market power and anticompetitive effect. Klein and Wiley's proposal that courts should never infer market power from price discrimination is unnecessary to insulate competitive price discrimination from antitrust scrutiny, introduces a confusing distinction between market-power-in-economics and market-power-in-antitrust, and risks insulating from liability firms engaged in price discrimination when discrimination or the practices that facilitate it would harm competition.

Ayotte & Skeel on Venue Choice in Bankruptcy Kenneth Ayotte and David A. Skeel, Jr. Jr. (Columbia Business School and University of Pennsylvania Law School) have posted Why Do Distressed Companies Choose Delaware? An Empirical Analysis of Venue Choice in Bankruptcy to SSRN. Here is the abstract:
    We analyze a sample of large Chapter 11 cases to determine which factors motivate the choice of filing in one court over another when a choice is available. We focus in particular on the Delaware court, which became the most popular venue for large corporations in the 1990s. We find no evidence of agency problems governing the venue choice or affecting the outcome of the bankruptcy process. Instead, firm characteristics and court characteristics, particularly a court's level of experience, are the most important factors. We find that court experience manifests itself in both a greater ability to reorganize marginal firms and in reorganizing such firms faster. Delaware is similar to other high-experience courts in terms of the likelihood of reorganization controlling for firm characteristics, but is a standout in terms of speed. We estimate that a Delaware bankruptcy requires approximately 40% less time to complete than an equivalent case in another court.

Alward on Authorial Speech Acts Peter Alward has uploaded Attitudes Towards Fiction - Chapter 1: Authorial Speech Acts. Here is an excerpt:
    The upshot of this discussion is that insofar as authors are thought to be performing speech acts, they can only be thought of as performing utterance or inscriptional acts – acts of producing meaningful sentences tokens, but tokens lacking propositional content. Of course, this is not by itself sufficient for fiction-making, but the distinguishing mark of fiction is not to be found in authors’ communicative purposes. Fiction-making is the process of creating an artifact of a certain kind – a novel, or a novella, or a short story. The speech act approach to authorial activity erroneously models it on the activity of speakers engaged in communication rather than that of artists producing art objects. The mistake is a natural one given that art objects in question consist of sentences, which are primarily used for communication. Nonetheless, the relation of author to text should not be thought of as the relation of speaker to utterance, but rather as word-sculptor to word sculpture.
This paper is suggestive, in an interesting way, of the frequently used metaphor of crafting legislation. Hmm.

Thursday, November 27, 2003
Giving Thanks
    Thanks to Howard Bashman--How Appealing is an amazing resource.
    Thanks to the Volokh Conspirators and the Crooked Timberites for many hours of interesting and provacative reading.
    Thanks to Rick Hasen, whose Election Law Blog is a wonder.
    Thanks to Jack Balkin. Nothing has been more rewarding than responding to the intelligent and careful work that Jack does on Balkinization.
    Thanks to Brett Marston, from whose Marstonalia, I have learned much.
    Thanks to my USD colleagues, Gail Heriot, Sai Prakash, Mike Rappaport, Maimon Schwarzschild, Tom Smith and Chris Wonnell for their fabulous new blog, The Right Coast.
    Thanks to Chris Bertram, Greg Goelzhauser, and Nate Oman--your support in the early days of Legal Theory Blog meant more than you can know.
    Thanks to Jane Galt and Glenn Reynolds for introducing many new readers to LTB.
    And most of all, thanks to you, for reading!
    Wishing all in the blogosphere, a joyous Thanksgiving,

Lipton on Database Property Jacqueline D. Lipton (Case Western Reserve University - School of Law) uploads Balancing Private Rights and Public Policies: Reconceptualizing Property in Databases (Berkeley Technology Law Journal, Vol. 18, pp. 773-852, Summer 2003) to SSRN. Here is the abstract:
    This Article presents a new paradigm for thinking about intangible property rights in response to recent criticism that information products such as databases should not be over-propertized. Analyzing the inherent problems with existing approaches, the Article concludes that creating private property rights in these intangible assets will not inevitably lead to commercial and social problems. On the contrary, legislatures can create private property rights that when accompanied by appropriate oversight and monitoring will preserve commercial markets and the public domain of information. Indeed, a new database law can use the concept of property as an organizing tool to properly balance private rights and public policies. In developing this new approach to database protection, this Article examines the international debate on the creation of private property rights in databases. Furthermore, unlike previous models for sui generis database protection law based on copyright or trade secret law, the model in this Article draws on the principles underlying trademark and patent law in reaching a new solution.

Is there really a workshop at Northwestern today? Northwestern's website says that Ronen Avraham is presenting Liability Rules and Modular Liability Rules: Another Ex-Ante View of the Cathedral. But surely not!

Fehige on Desires at ANU At ANU's RSSS, Christoph Fehige (University of Konstanz) presents Desires as Affects.

The UN and National Building at ANU At ANU's faculty of law, there is a conference entitled The United Nations and State Building.

Wednesday, November 26, 2003
Litman on Sharing and Stealing Jessica Litman (Wayne State University Law School) has posted Sharing and Stealing on SSRN. (For an updated version of the working paper, follow this link.) Here is the abstract:
    The purpose of copyright is to encourage the creation and mass dissemination of a wide variety of works. Until recently, most means of mass dissemination required a significant capital investment. The lion's share of the economic proceeds of copyrights were therefore channeled to publishers and distributors, and the law was designed to facilitate that. Digital distribution invites us to reconsider all of the assumptions underlying that model. We are still in the early history of the networked digital environment, but already we've seen experiments with both direct and consumer-to-consumer distribution of works of authorship. One remarkable example of the difference consumer-to-consumer dissemination can make is seen in the astonishing information space that has grown up on the world wide web. The Internet has transformed information and the way we interact with it by creating an easily accessible, dynamic, shared information space. Its success derives from the fact that information sharing on the Web is almost frictionless; individuals are free to post information they learned from others without having to secure their permissions. This paper proposes that we look for some of the answers to the vexing problem of unauthorized exchange of music files on the Internet in the wisdom intellectual property law has accumulated about the protection and distribution of factual information. In particular, it analyzes the digital information resource that has developed on the Internet, and suggests that what we should be trying to achieve is an online musical smorgasbord of comparable breadth and variety. It proposes that we adopt a legal architecture that encourages but does not compel copyright owners to make their works available for widespread sharing over digital networks, and that we incorporate into that architecture a payment mechanism, based on a blanket or collective license, designed to compensate creators and to bypass unnecessary intermediaries.
And here is a bit more, re the license scheme that Litman envisions:
    We should adopt a legal architecture that encourages but does not compel copyright owners to make their works available for widespread sharing over digital networks. We should incorporate into that architecture a payment mechanism designed to compensate creators and to bypass unnecessary intermediaries. That mechanism should have sufficient flexibility to allow current and new upstart intermediaries to devise useful value-added flavors of intermediation and collect dollars accordingly. Fisher, Ku and Netanel have done a pretty good job of identifying the goods and services that will need to be subject to a copyright “tax,” “fee,” “levy,” or “royalty. ” The pot of money generated by the fees should be disbursed by whatever agency Congress decides should replace the current unworkable Copyright Arbitration Royalty Panels. In the first instance, money should be disbursed to the musicians and composers who author music and recordings.
One of the most interesting aspects of Litman's analysis is her contention that the schemes she supports (compulsory license plus a tax) are outside the politically feasible choice set. Litman raises the obvious question: "If I’m persuaded that politics would prevent the adoption of a Netanel/Fisher/Ku/Lunney solution, why am I bothering to articulate my own variation?" Part of her answer is: "The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table." Litman, who understands the politics of copyright legislation as well as anyone, is certainly aware of the collective action problem that faces consumers--our individual stakes are insufficient to given individuals an incentive to incur the expense of direct participation, and free rider problems will plague the effort to create a collective lobbying effort with the resource base that would make it a serious competitor to the content owner lobbies. Highly recommended!
And here are some references:
  • Neil W. Netanel, Impose a Noncommercial Use Levy to Allow Free P2P File Swapping and ReMixing, U. of Texas Law, Public Law Research Paper No. 14 (Nov. 15, 2002)
  • William Fisher III, An Alternative Compensation System in PROMISES TO KEEP: TECHNOLOGY, LAW AND THE FUTURE OF ENTERTAINMENT (forthcoming 2004).

More from Weatherson on Cloning Brian Weatherson has put up a series of posts on cloning over at Crooked Timber, with many fine comments added by readers. His latest two posts can be found here and here.

Gardner & Macklem on Provocation John Gardner & Timothy Macklem have uploaded No Provocation without Responsibility: a Reply to MacKay and Mitchell. For submission to the Criminal Law Review. Here is a taste:
    In a recent issue of the Review, R.J. MacKay and B.J. Mitchell make a thought-provoking contribution to the long-running debate about the relationship between provocation and diminished responsibility as defences to murder. In part, their article is a reaction to an earlier contribution that we made to the same debate, also in the pages of the Review. MacKay and Mitchell share with us a dissatisfaction with the state of the law after the House of Lords’ decision in R v Smith (Morgan). They agree with us that the House of Lords left the law in an unstable condition. But that is where the agreement ends. We argued that the House of Lords had erred in trying to knit the two defences together. MacKay and Mitchell, by contrast, see the decision as testament to the folly of trying to keep the two defences apart. They argue that the law should take R v Smith to its logical conclusion, and unify the two defences forthwith.
    At the centre of our argument was what we regarded as an elemental contrast between excuses and denials of responsibility. To offer an excuse, we said, is to attempt to provide a decent rational explanation for what one did. To deny responsibility, by contrast, is to assert that (because at the time one was not a sufficiently rational being) no rational explanation for what one did is called for. Defences in these two classes, we argued, are not only different but incompatible. To make an excuse is not only not to deny one’s responsibility; it is positively to assert one’s responsibility. To deny one’s responsibility is not only not to make an excuse; it is to undermine any excuse one might have made. That is because one cannot claim to live up to rationality’s standards while also claiming that one should not be judged by rationality’s standards.
If you are interested in the theory of criminal law, you will want to read Gardner & Macklem!

Barry on Utilitarianism and Human Rights at UCL At University College, London, today, Brian Barry (Columbia) presents Utilitarianism and Human Rights?

Atik on Nafta & Legitimacy Jeffery Atik (Loyola Marymount University) has uploaded Repenser NAFTA Chapter 11: A Catalogue of Legitimacy Critiques (Asper Review of International Business and Trade Law, Vol. 3, 2004). Here is the abstract:
    No feature of NAFTA is more often criticized than Chapter 11. It has proved to be a lightning rod for anti-NAFTA and anti-globalization critics. Environmentalists, labor organizers and human rights advocates all decry its secrecy, its potential disruptiveness to ordinary lawmaking and its placing of investors' interests before those of the broader public. Chapter 11 is portrayed as a great give-away - an elaborate ruse to evade checks on corporate activity in the three NAFTA countries. Nor do any of the three NAFTA Parties - the governments of the United States, Canada, and Mexico - seem particularly pleased with Chapter 11's operation. There is more than a little buyer's remorse evident. All three nations share a general discomfort with the extensive reach Chapter 11 has displayed. Through an unanticipated flow of decisions, Chapter 11 tribunals have entertained - if not endorsed - far more extravagant investment claims than were likely imagined by the three nations while negotiating Chapter 11's substantive terms. Such widespread unhappiness with Chapter 11 is somewhat unanticipated, as Chapter 11 attracted little attention during its negotiations. Indeed, it is now viewed as having been something of a Trojan Horse: seemingly benign upon first delivery, but later understood to have brought destruction to national democratic institutions. Many of the attacks on Chapter 11 are expressed in terms of a lack of legitimacy. The exercise of authority by Chapter 11 tribunals over public decisions seems wildly inconsistent with the understandings and expectations in all three countries of how legitimate political and judicial determinations should be made. There is a repeated and emphatic protest of unfair surprise advanced by critics of Chapter 11 - many, if not most, state/provincial and local public officials in the three NAFTA Parties claim to have been unaware of the establishment of an external mechanism that can impose monetary liability for legislative and judicial decision-making. The implication made here is that had Chapter 11 been better known and understood, it would never have been implemented. It is a sucker-punch, a hidden rider, the unnoticed fine print. Now in place, the potential of Chapter 11 to restrict lawmaking prerogatives chafes legislators throughout North America. Chapter 11, as part of NAFTA, is layered on top of the domestic legal regimes of the three NAFTA Parties. As such, questions of its legitimacy are perhaps best viewed from the specific legal traditions - and legal expectations - native to each Party. Thus, to answer whether Chapter 11 is legitimate, one can usefully draw on the structures, constitutional understandings and functional notions of legitimacy found within each NAFTA Party. To the extent Chapter 11 goes beyond the expected (even if this is exactly the intended point of its construction), legitimacy is tested. This essay presents a catalogue of defects, surprises, shortcomings and deliberate design associated with Chapter 11 - all of which have prompted attacks on its legitimacy.

Keohane on Rational Choice & International Law Robert Keohane (Duke University - Department of Political Science) has posted Rational Choice and International Law (Journal of Legal Studies, Vol. 31, No. 1, January 2002) on SSRN. Here is the abstract:
    Rational choice theory provides important insights for the study of international law and institutions, but it also encounters significant limitations. Rationality is an ideal type and strategic action is a matter of degree. Neither should be regarded as limited to activities involving the pursuit of material self-interest. Rational choice theory is valuable, for the analysis of international law and institutions, in five ways: 1) as a basis for skeptical interpretations of talk and action; 2) as a menu of causal mechanisms; 3) as an explanatory device for helping to resolve specific puzzles; 4) as part - but only part - of an explanation of legal and political phenomena; and 5) as the basis for generating further puzzles for research. Different methods are associated with these different tasks. Rational choice theory seeks to encompass an extraordinary range of human behavior within a single encompassing framework. This ambition drives an important intellectual agenda; but the practitioners of rational choice theory should beware of the sin of hubris, or pride.

Infanti on the IRC as a Sodomy Statute Anthony C. Infanti (University of Pittsburgh - School of Law) has uploaded The Internal Revenue Code as Sodomy Statute (Santa Clara Law Review, Vol. 44) to SSRN. Here is the abstract:
    This article represents an attempt to bridge the gap between gay and straight understanding of the Internal Revenue Code's impact on same-sex couples. Through a combination of personal narrative and legal analysis, I try to explain how, from a gay perspective, the Code can be viewed as just another manifestation of the fluid mixture of hostility, bewilderment, and discomfort that generally characterize society's reaction to homosexuality. By explaining the experiences behind my perceptions of the Code, I hope to help my heterosexual colleagues to understand just how demeaning and oppressive the Code can seem to gays and lesbians - regardless of any net financial benefit that same-sex couples may receive, or any net financial detriment that they may suffer, under the Code.

Tuesday, November 25, 2003
Posner on Databases & Copyright Richard Posner has written a typically lucid opinion in ASSESSMENT TECHNOLOGIES OF WI, LLC. v. WIREDATA, INC. The case concerns a real-estate database constructed from public domain records subject to an open records statute. Posner observes that the plaintiff could claim a copyright in the arrangement of the data (the data elements & the arrangement of the elements into tables), but not underlying raw data. Link courtesy of the always amazing Howard Bashman.

Bertram on Rousseau Chris Bertram (Crooked Timber) has a marvelous book on Rousseau that is now available from Rousseau and the Social Contract. I just bought my copy! Perhaps the reader's of Legal Theory Blog can boost Chris's sales rank! Buy it while its hot!

Fanto on Whistleblowing & Public Directors James A. Fanto (Brooklyn Law School) uploads Whistleblowing and the Public Director: Countering Corporate Inner Circles to SSRN. Here is the abstract:
    I argue that, in the corporate scandals, the contrast between the behavior of many executives, board members and corporate advisors who were reluctant to challenge corporate misbehavior and that of the small number of corporate whistleblowers who did points to a disturbing social psychological reality that has been overlooked in the discussion of, and reforms addressing, the scandals: a group dynamic that binds group members together so that it blinds them to their failings and abuses. I contend that this social psychological reality, long known to and studied by social psychologists, is a basic cause of the scandals. I first review recent corporate scandals and highlight the evidence of the social psychological phenomenon of the inner group or circle in them. I next explain how social psychological theories, such as "groupthink" and the group production of evil, account for why corporate inner circles behaved improperly. I then look at reform proposals of advisory groups on corporate governance and self-regulatory organizations and argue that the reforms these groups either propose or implement will prove ineffective because they fail to recognize the role of the inner circles in the scandals. I offer a response, inspired by social psychological theory, that would help prevent future scandals by keeping a board from falling under the domination of an inner circle. I propose that public companies have a significant minority of "public" directors who would be selected for shareholder election to boards from a group of individuals identified by a new government oversight board and whose goal would be to oppose and monitor the firm's inner circle. Since I assume that many existing board members, who now compose an elite coming from a few specific backgrounds, are particularly prone to joining inner circles, I argue that public board members should primarily be drawn from outside this elite. This ambitious reform is needed because investments in public companies have replaced bank investing for most ordinary Americans and because private ordering is not solving the inner circle problem. I then explain how provisions in Sarbanes-Oxley, and the implementing SEC regulations, that change board practices can be understood as an implicit, but imperfect, effort to create an oppositional attitude among board members and their advisors that would counter the rise of inner circles and their groupthink. I discuss the reforms' limitations due to their inadequate grounding in social psychology.

Trosow on Copyright for Subsidized Speech Samuel E Trosow (University of Western Ontario - Faculty of Law / Faculty of Information & Media Studies) has posted Copyright Protection for Federally Funded Research: Necessary Incentive or Double Subsidy? on SSRN. Here is the abstract:
    Should works resulting from research that has been substantially subsidized by the United States Federal Government be protected by copyright, or immediately enter the public domain? The Public Access to Science Act (PASA) would place these works in the public domain in the same manner as works prepared by government employees. This paper evaluates the merits of the legislation by placing the question of the appropriate copyright treatment of federally subsidized works within an historical perspective, taking into account the underlying purposes of copyright policy as well as the changes that have taken place in field of scholarly publishing since Congress last considered the issue in 1976. The regulatory environment and practices of the major federal funding agencies are reviewed, showing that agencies have failed to utilize their broad discretion over the treatment of funded works, resulting in an over-protection of works as the default rule. The paper considers how the balancing of interests that has historically informed copyright policy should be applied to works that have been federally supported; it will review and assess the initial reactions to PASA from the point of view of various stakeholders including the commercial publishers, non-commercial publishers, universities, authors and researchers, and library associations; and it will consider whether the PASA's purposes might be accomplished through other mechanisms. The conclusion is reached that works resulting from extramural research that has been substantially subsidized by the Federal Government should enter the public domain in the same manner as works resulting from intramural government research undertaken by federal employees, and that PASA provides a straightforward mechanism for reaching this result.

Posner Speaks Another Rice Grad guest blogs Richard Posner's talk at George Mason on Bush v. Gore over at Southern Appeal.

Ides on Congress's Power to Regulate Abortion Under the Commerce Clause Allan Ides (Loyola Marymount University) has uploaded The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause to SSRN. Here is the abstract:
    The constitutional controversy surrounding the recently enacted Partial-Birth Abortion Ban Act of 2003 has focused on whether the Act imposes an undue burden on a woman's right to choose an abortion. More specifically, the question is whether the Act runs afoul of the principles enunciated in Stenberg v. Carhart, 530 U.S. 914 (2000). The focus of this essay is on a separate constitutional question, namely, whether the Act represents a valid exercise of the commerce power under the principles enunciated in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). The author concludes that under current Commerce Clause doctrinal standards the constitutionality of the Act as written is in serious doubt. Since this is a working draft, the author invites comments and criticisms.
Highly recommended.

Bainbridge on Eisenberg I would imagine that most readers of Legal Theory Blog will want to read Stephen M. Bainbridge's (University of California, Los Angeles - School of Law) Social Propositions and Common Law Adjudication, which is just up on SSRN. Here is the abstract:
    This essay reviews The Nature of the Common Law by Melvin A. Eisenberg (Harvard University Press, 1988). Professor Eisenberg's stated goal therein "is to develop the institutional principles that govern the way in which the common law is established in our society." In the course of doing so, Eisenberg addresses the functions of courts in American society, modes of legal reasoning and the process of overturning prior precedents. Yet Eisenberg never loses sight of his central thesis, namely that "all common law cases are decided under a unified methodology, and under this methodology social propositions always figure in determining the rules the courts establish and the way in which those rules are extended, restricted, and applied." According to the reviewer (UCLA law professor Stephen M. Bainbridge), The Nature of the Common Law is one of the most thought-provoking books ever written on common law adjudication. Eisenberg's belief in social morality as a workable guide to decisionmaking surely invites further debate. So too does his concomitant belief that law is more than merely the personal moral and policy preferences of the judge. Indeed, one might almost say that The Nature of the Common Law deserves to be controversial, for Eisenberg has given us a report that is both normatively appealing and descriptively accurate. The Nature of the Common Law succeeds because it is both an attractive vision of how courts should function and a perspicuous account of the real world in which courts actually function.

Driver Reviews Arply Julia Driver has a Review of Nomy Arpaly's Unprincipled Virtue on Notre Dame Philosophical Reviews. Here is an excerpt:
    I felt sure I would like Nomy Arpaly’s book when I opened it to the first page and saw John LeCarré’s name in the first sentence. I was not disappointed. Arpaly uses an engaging mix of literary examples and rigorous analysis to present and argue for a variety of interesting claims relating to virtue. Arpaly has something novel and interesting to say about autonomy, agency, moral worth, and virtue. This is an excellent book, and one of the best I’ve read recently.

Gregory on Stalinism at George Mason At George Mason's Philosophy, Politics, and Economics series, Paul Gregory (Economics, University of Houston) presents The Political Economy of Stalinism.

Williams on the Natural/Positivist Nexus at OJDG At Oxford's Jurisprudence Discussion Group, Melanie Williams, presents Then and Now: The Natural/Positivist Nexus at War - Auden’s “September 1, 1939”.

Duffield on Patent Harmonization at Oxford At Oxford's IP Seminar, Graham Dutfield presents Harmonising Patent Law? A Lesson from the 19th Century Dyestuff Industry.

Boos on H.L.A. Hart & David Hume, Is/Ought Eric J. Boos (Sokoine University - Law) posts The Misapplication of the 'Is-Ought' Distinction and the Role of Justice in Hart's Legal Theory on SSRN. Here is the abstract:
    In this article I intend to show that H.L.A. Hart's position in The Concept of Law, that the validity of law is not grounded in the fact that the content of law is essentially moral, is incongruent with his insistence that the ultimate rule of recognition is grounded in normative (social) behavior. Hart's insistence that there be an attitude of shared acceptance toward the ultimate rule of recognition compromises his insistence that there is no logically necessary relationship between law and morality. The problem in Hart's legal theory seems to be rooted in his strident efforts to make application of the general tenets of positivism. His attempt to keep separate the fields of law and morality while at the same time attempting to satisfy the parameters of his own project as a "descriptive sociology," are in conflict. In short, Hart seems to have too stringently applied Hume's Is-Ought distinction to the realm of legal theory.

Adler on Fear Assessment or "The Only Cost We Have to Weigh is Fear Itself" Matthew D. Adler (University of Pennsylvania Law School) has uploaded Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety to SSRN. Here is the abstract:
    "Risk assessment" is now a common feature of regulatory practice, but "fear assessment" is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as "costs" for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so on - are often the focus of popular fears. Even more puzzling is the virtual absence of economics scholarship on the pricing of fear and anxiety, by contrast with the vast literature in environmental economics on pricing other "intangible" benefits such as the existence of species, wilderness preservation, the enjoyment of hunters and fishermen, and good visibility, and the large literature in health economics on pricing health states. This Article makes the case for "fear assessment," and explains in detail how fear and anxiety should be quantified and monetized as part of a formal, regulatory cost-benefit analysis. The author proposes, concretely, that the methodology currently used to quantify and monetize "light" physical morbidities, such as headaches, coughs, sneezes, nausea, or shortness of breath, should be extended to fear. The change in total fear-days resulting from regulatory intervention to remove or mitigate some hazard - like the change in total headache-days, cough-days, etc. - should be predicted and then monetized at a standard dollar cost per fear-day determined using contingent-valuation interviews.
Every paper by Matt Adler I read, I like!

Mattiacci on Kaplow & Shavell Giuseppe Dari Mattiacci (Utrecht School of Economics) has posted Goedel, Kaplow, Shavell: Consistency and Completeness in Social Decisionmaking on SSRN. Here is the abstract:
    The recent debate on what criteria ought to guide social decisionmaking has focused on consistency: it has been argued that criteria contradicting one another - namely, welfare and fairness - should not be simultaneously employed in order for policy assessment to be consistent. In this article, I raise the related problem of completeness - that is, the question of whether or not a set of consistent criteria is capable of providing answers to all social decision problems. If not, as I suggest might be the case, then the only way to decide otherwise undecidable issues is to simultaneously employ both welfare and fairness, which implies a certain degree of inconsistency within the system.

Shavell on Contracts Steven Shavell (Harvard Law School) has posted On the Writing and the Interpretation of Contracts on SSRN. ($5.00 fee.) Here is the abstract:
    The major theme of this article is that the interpretation of contracts - their possible amplification, correction, and modification by adjudicators - is in the interests of contracting parties. The general reasons are (a) that interpretation may improve on otherwise imperfect contracts; and (b) that the prospect of interpretation allows parties to write simpler contracts and thus to conserve on contracting effort. A method of interpretation is defined as a function whose argument is the written contract and whose value is another contract, the interpreted contract, which is what actually governs the parties' joint enterprise. It is shown that interpretation is superior to enforcement of contracts as written, and the optimal method of interpretation is analyzed.
Unfortunately, I cannot download the paper. I'm very interested in the argument that the interpretation of a contract is another contract--because of the potential regress problem. Anyone have a copy?

Monday, November 24, 2003
More on the Demandingness Objection to Utilitarianism Here, from Michael Rappaport of The Right Coast. The gist of the demandingness objection is captured by the question: doesn't utilitarianism demand that we all work for Oxfam? One potential way to answer the objection relies on R.M. Hare's distinction between utilitarianism as an ideal theory of morality, and the rules of thumb that would produce the best consequences if internalized as social norms. Rappaport has some interesting things to say about a Harean strategy. After you read Rappaport's very thoughtful post, consider this argument from Stanford University graduate student Daniel Lafave:
    The main problem with two-level views is their psychology. If I really accept utilitarianism, how can I abide by a common-sense morality I know to be a fiction? And ifI really do take that common sense morality seriously, how can I just forget it when I am supposed to think as a utilitarian? The two-level response here must be that this is indeed a messy compromise, but one made to deal with a messy reality.
    Act-utilitarianism is an extremely demanding theory, since it requires you to be entirely impartial between your own interests, the interests of those you love, and theinterests of all. The usual example offered is famine relief. By giving up all your time,money and energy to famine relief, you will save many lives and prevent much suf-fering. Utilitarians often claim at this point that there are limits to human capabilities,and utilitarianism requires us only to do what we can. But the sense of ‘can’ hereis quite obscure, since in any ordinary sense I can give up my job and spend my life campaigning for Oxfam.
    The demandingness objection seems particularly serious when taken in the context of widespread noncompliance with the demands of act-utilitarian morality. Most people do little or nothing for the developing world, and this is why the moral demands on me are so great. An argument such as this has been used to advocate rule-utilitarianism, according to which the right action is that which is in accord with thatset of rules which, if generally or universally accepted, would maximize utility.
My prior post was here and Matthew Yglesias had a post here.
Update :And more from Ciceronian Review, here.
Additional update: And for more from Charles Stewart, surf here.

Weekend Update On Saturday, the Dowload of the Week was Gerald Postema's magisterial two-part paper on the common law, and the Legal Theory Bookworm recommended Robert Alexy's latest. Sunday, the topic for the Legal Theory Lexicon was the theory of the second best (and the distinction between ideal and nonideal theory). And also on Sunday, you will find the Legal Theory Calendar, with workshops, conferences, and other events of note for this week. Finally, the last post from the weekend was a longish response to Brian Anderson's Opinion Journal op/ed on Senator Schumer and judicial selection.

Froomkin on National ID Cards at FSU At Florida State, Michael Froomkin (University of Miami) presents The Uneasy Case for National ID Cards as a Means to Enhance Privacy. I always learn from Froomkin's work. This should be excellent! P.S. FSU appears to have password protected the paper, so I have substituted a link to a version from Froomkin's website--this may not be the same draft as circulated to the FSU faculty.

Jiang on Defined Contribution Plans at Columbia At Columbia's law and economics series, Professor Wei Jiang (Columbia University Graduate School of Business) presents Defined Contribution Pension Plans: Determinants of Participation and Contributions Rates (authored with Business School colleagues Professors Gur Huberman and Sheena S. Iyengar).

Schmidtz on Equality at Arizona At Tulane's Center for Ethics and Public Affairs, David Schmidtz (University of Arizona) presents Equality. Largish topic?

Griffin at Oxford At Oxford's Moral Philosophy Seminar, James Griffin (ANU) speaks today. Topic anyone?

Margulies on Judging and Terrorism Peter Margulies (Roger Williams University School of Law) has posted Judging Terror in the 'Zone of Twilight': Exigency, Accountability, and Procedure After September 11 on SSRN. Here is the abstract:
    Efforts by the political branches to deal with the threat of mass violence by transnational networks have created what Justice Jackson in the Steel Seizure case called a "zone of twilight" for courts. Executive assertions of power to fashion exigent procedures for the confinement and adjudication of alleged terrorists have posed a particularly nettlesome dilemma. Courts can either defer to the executive, trusting that the special circumstances of the case will seal off any lasting harm to the principles that guide the rest of the legal system, or can seek refugee in a stalwart absolutism that accepts even catastrophic harm to innocents as the price of democracy. Navigating through the zone of twilight requires a pragmatic focus on the implications of exigent procedures for both public safety and the relationships between the three branches. The history of both habeas corpus and remedies jurisprudence reveals just such a pragmatic turn, which I call institutional equity. While no road map is available, institutional equity offers a framework for analysis of issues such as the detention of alleged "unlawful combatants" that avoids the dangers of both deference and absolutism.

Wuerth on Madison's Forgotten War Ingrid B. Wuerth (University of Cincinnati - College of Law) posts The President's Power to Detain 'Enemy Combatants': Modern Lessons From Mr. Madison's Forgotten War (Northwestern University Law Review, Vol. 98, 2004) on SSRN. Here is the abstract:
    This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war on terrorism. It is the only declared war of the new republic that offers founding-era views on military authority under the Constitution. And the cases themselves have not been overruled or rendered obsolete in the intervening years; instead they illustrate the enduring importance of congressional authorization and international law in setting the scope of the President's war powers. Considered as a whole, the War of 1812 cases thus provide strong reasons to reconsider the courts' recent enemy combatant jurisprudence.

Hay on Stings Bruce L. Hay (Harvard Law School) has posted Sting Operations, Undercover Agents and Entrapment on SSRN. Here is the abstract:
    This paper undertakes an economic analysis of "sting" operations, in which the authorities induce, or tempt, an individual to commit a crime or comparable rule violation. The paper considers the rationales for this law enforcement technique, including its potential advantages over alternative techniques such as ex post apprehension of offenders. Two functions of sting operations are emphasized and analyzed: (1) the informational function of identifying likely offenders; and (2) the behavioral function of deterring offenses. The paper examines the tensions between these functions, and offers a model of desirable sting operation policy.

O'Connor on Corporate Governance and Human Capital Marleen O'Connor (Stetson University College of Law) has uploaded American Corporate Governance and Resilient Families: Investing in Children's Human Capital in Turbulent Times to SSRN. Here is the abstract:
    This article considers the relationship between corporate governance and the well-being of children. The United States has a serious skills deficit among its younger workers. Experts from many fields agree that human capital development in the early years of life profoundly shape the adult worker. Parents have the greatest influence on human capital development during this time. Parents are trying to do their best, yet socio-economic changes make it increasingly difficult for parents to raise their children. This article considers how the economic transition to the new economy and the social revolution concerning changing gender roles intersect and interact to negatively impact the family. This article asserts that corporations need to take responsibility to promote resilient families in these turbulent times by implementing better work/family policies. This article considers how a new political coalition of parents is forming and suggests that this group seek to harness the pension power of American working families to push corporations to implement better work/family programs. Keywords: corporate governance, sustainable economic development, child well-being, gender, flexible labor markets, family, children, human capital, work/family, pension funds, diversity, institutional shareholders

Viscusi on Tort Reform and Insurance Markets W. Kip Viscusi (Harvard Law School) has posted Tort Reform and Insurance Markets on SSRN. Here is the abstract:
    Proposed tort reforms have focused on punitive damages and noneconomic damages, each of which pose problems for jury decision making. The U.S. Supreme Court decision in State Farm v. Campbell will greatly limit very large punitive damages awards, and will affect smaller punitive awards to a lesser degree. Noneconomic damages caps enacted by state legislatures have greatly enhanced insurance market performance. Insurers operate within the context of a highly imperfect, regulated market in which there is substantial price rigidity induced by regulation. Reform efforts should strive to establish greater predictability and stability in these awards components rather than simply being concerned with imposing specific numerical caps.

Sunday, November 23, 2003
Senator Schumer and the Criteria for Judicial Selection
    Anderson on Schumer Over at Opinion Journal, Brian Anderson has an op/ed on Senator Charles Schumer's approach to judicial selection. Here is a taste:
      Schumerism has wrought incalculable damage to our political fabric. For two years, Sen. Schumer has waged a campaign to subvert the criteria by which the Senate ratifies presidential judicial picks. For much of American history, the Senate, in its confirmation of judges, has relied on principles laid down by Alexander Hamilton in The Federalist: integrity, intelligence and temperament, and faithfulness to the rule of law--terms on which President Bush's picks, Justice Brown included, pass with high marks. But instead of Hamiltonian standards, Mr. Schumer insists that senators must make a judge's "ideology" their principal concern. By this he means the judge's private political opinions, as well as the political results his decisions have led to in past cases and could lead to in the future. Judges whose views on affirmative action and abortion are outside the "mainstream" should be disqualified from sitting on the federal bench, regardless of competence. As for the definition of "mainstream," Schumerism simply holds that conservatives are ipso facto "extremist."
    And a bit more:
      For decades, liberals have happily watched an activist judiciary twist the Constitution to make it produce "progressive" policy outcomes--from affirmative action to partial-birth abortion--that the left never could have won from voters. Liberals have defended the judiciary's expansive policymaking by saying that it simply grew out of a "living Constitution"--a document whose principles, interpreted by wise judges (i.e., those with a "progressive" world view), could adapt to the needs of every era. Conservatives have lamented this trend toward legislating from the bench; they want the courts restored to some semblance of what the Framers intended courts to be--neutral referees, applying the law not creating it. The conservative jurisprudence of "originalism," favored by Bush judicial appointees, directs judges to stick to the Constitution as the Framers understood it, and to read statutes to mean what they say. Originalists believe that legal texts have a limited range of meaning, which can be rightly or wrongly glossed. The prospect of an originalist bench depoliticizing the law gives the left nightmares, since it could sweep away some court-mandated liberal policy gains as unconstitutional. So Schumerists have trained their fire on originalism. They argue that all approaches to law are at bottom a matter of power politics. The originalists may claim to be faithful to legal texts, but that's a delusion: Judicial interpretation is unavoidably "ideological." What the Bush judges, like all judges, are really up to, Schumerism avers, is construing the law so that it produces their favored policies. And since what's at stake is momentous--abortion, affirmative action, vouchers--and since judging is just a form of politics, Schumerism licenses the use of any means necessary to retain a liberal judiciary. This includes calling Bush nominees "extremist right-wing ideologues" out to "attack working families," denouncing originalists as "right-wing judicial activists," smearing nominees as closet bigots, trying to create by filibuster a new supermajority requirement for judicial confirmations, and proposing, as Sen. Schumer has done, to take away the president's constitutional power to select judges and turn it over to state committees, equally divided between Democrats and Republicans, making impossible the appointment of a judge unacceptable to Democrats.
    Anderson's Analysis Raises an Important Question On the one hand, Anderson's op/ed oversimplifies a complex story. During the Clinton Administration, Republicans clearly employed ideological criteria when opposing some nominees; moreoever, the Republicans employed a variety of obstructionist tactics--although when they were in the majority they did not need to employ the filibuster. On the other hand, Anderson's piece raises an important question--just what is the basis for Democratic opposition to Janice Brown and the rest of the filibustered nominees. Consider five possibilities:
      1. Democratic use of the filibuster is based on the nominee's lack of fidelity to law. That is, the Democrats oppose Brown, et al, because they rely on their own political preferences when rendering judicial decisions that cannot be supported on legal grounds.
      2. Democratic filibusters are based on the nominee's political ideology per se, even if the nominee's actual judicial decisions are in fact based entirely on the formal legal considerations.
      3. Democratic filibusters are based on the nominee's political ideology, because in cases in which the law underdetermines the results, Democrats believe that political ideology will fill the gap and determine the outcome of the case.
      4. Democratic filibusters are based on the nominee's judicial philosophy. Democrats oppose any candidate who favors originalism or plain meaning as an approach to constitutional interpretation, because these approaches are inconsistent with important decisions of the Warren/Burger Courts (e.g. Roe v. Wade).
      5. Democratic filibusters are not really based on the nominee's likely performance on the Court of Appeals, but are instead tactical moves, designed to thwart possible nominations to the United States Supreme Court and thereby to hold open Supreme Court vacancies for the next Democratic President.
    In all likelihood, many democratic Senators haven't clearly distinguished between these five rationales and the actual motivations for the caucus are likely to vary from Senator to Senator.
    A Simple Model of Judicial Selection And, in fact, there are even more complicated possibilities, because it is possible that Democrats are considering both political ideology and judicial philosophy in deciding which candidates should be subject to a filibuster veto. It's worthwhile thinking a bit more abstractly about this. So let's consider a very simply model where judges are rated by judicial selectors (Presidents and Senators) on two dimensions. Here they are:
      --Political Ideology. Let's assume that selectors rate candidates on the basis of their political ideology on a contiunous real line that runs from left to right. Let us assume that a perfectly left canidate scores zero and a perfectly right candidate scores one, with a middle-of-the road candidate scoring 0.5.
      --Judicial Philosophy. Let's assume that selectors rate candidates on the basis of their judicial philsophy on a continuous real line that runs from formalist to realist. Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology. Give such a candidate a score of zero. Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all. Give such a candidate a score of one.
    We now can represent each judicial candidate as a point in the resulting two dimensional space. _____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
    So each judicial candidate will have a position in this two dimensional space. In the upper left, will be left-realist judges, who decide cases almost solely on the basis of their left ideology. In the upper right are the right-realist judges, who override the law and decide based on right-wing ideology. At the bottom of the chart are the formalist judges, who decide on the basis of texts, structure, history, and precedent. Let us assume that even a judge who is perfectly formalist in intention will be unable to fully compensate for unconcious biases introduced by ideology. Thus, although right formalists and left formalists may agree most of the time, there will be some issues on which they will decide differently because they are unable to completely compensate for their ideological biases, preconceptions, and assumptions.
    How Would Selectors Rate Candidates? Given our simple two dimensional model, how would judicial selectors (Presidents and Senators) rate candidates? This is a complex question, because selectors themselves may vary in both political ideology and judicial philosophy. For the purposes of model building, let's assume a simplified picture. Let's assume that to make an appointment, you need to get the agreement of two players: a right-wing President and a unitary left-wing Senate. (This obviously oversimplifies, because in current circumstances the Senate has a right-wing majority and a left-wing minority with veto power--unless the filibuster rule is changed.) How would they evaluate candidates? Consider each in turn:
      --The President. Let's assume that if you are the right-wing President, you will only be willing to accept realist judges if they are on the extreme right of the political ideology line. As judges become more formalist, you become less concerned with their ideology. That is, the line that defines the set of candidates that are acceptable to the President slopes downward and to the left.
      --The Senate. Now assume you are the Senate (or to be more realistic, the Senate minority with a filibuster-enabled veto). You will be willing to accept realist judges only if they are on the extreme left of the ideology line. As judges become more formalist, you are willing to accept progressively less left-wing ideologies. That is, the line the defines the set of candidates that are acceptable to the Senate slopes downward and to right.
    We can represent these two acceptability curves as follows:
      * = acceptability curve for left judicial selector. # = acceptability curve for right judicial selector
      ___________________Acceptability Frontiers for President & Senate
      __Realist1| ________13|_____*______________________________________________________________________# ________14| ________15| ________16|_______*__________________________________________________________________# ________17| ________18| ________19|__________*____________________________________________________________# ________20| ________21| ________22|_____________*______________________________________________________# ________23| ________24| ________25|_________________*______________________________________________# ________26| ________27| ________28|_____________________*______________________________________# ________29| ________30| ________31|__________________________*______________________________# ________32| ________33| ________34|_______________________________*____________________# ________35| ________36| ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42| ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
    Imagine a red line connecting the red * and a blue line connecting the blue #. The area beneath the red line represents the candidates who are acceptable to the Senate (or the Senate Minority with a filibuster veto over nominations). The area beneath blue line represents the candidates who are acceptable to the President. These two areas intersect in an area resembling a pyramid in the lower-middle region. These canidates are acceptable to both parties and we would expect their confirmation. Call this region the confirmation zone. Thus, the simple mode yields two conclusions (predictions if you like), which we can state as follows:
      --Conclusion One: Ceteris paribus, canidates inside the confirmation zone who are nominated by the President will be confirmed by the Senate.
      --Conclusion Two: Ceteris paribus, canidates outside the confirmation zone who are nominated by the President will notbe confirmed by the Senate.
    Of course, these are only ceteris paribus conclusions. All else may not be equal. The Senate might confirm nominees outside the confirmation zone in exchange for some other political favor; the President might nominate from the area to the left of the red Presidential acceptability line for similar reasons. Likewise, the Senate might reject a nominee inside the confirmation zone as a strategic ploy or as retaliation for some other political action.
    Who Will Be Selected From Within the Confirmation Zone? Given our model, we would expect the President to nominate from inside the confirmation zone. Let me translate. Given our model, we would expect a right wing President to nominate candidates whose political ideology is relatively moderate and who are relatively formalist. Of course, there is a possibility that the Senate (or Senate minority with a filibuster veto) would reject candidates inside the confirmation zone. Why, because both the President and Senate will preferences inside the zone. To simplify, let's assume that on any given horizontal line (i.e. for any given level of formalism), the President prefers those to the right and the Senate prefers those to the left. Consider the following example. We have two candidates C1 and C2, who are identical with respect to their judicial philosophy score, but different with respect to their political ideology score--C1 is to the left of C2. This situation can be represented in the following diagram, which cuts off the acceptability curves above the confirmation zone:
________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42|________________________________C1_______________C2 ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
    The President prefers C2 to C1, whereas the Senate (or Senate minority) has the inverse preference structure. This looks like a possible prisoner's dilemma. If it were a one shot game, the President might nominate C2, but the Senate (or Senate minority) might refuse to confirm. In the real world, the judicial confirmation process is more like an iterative game where the parties take turns assuming the various roles (President, Senate Majority, Senate Minority). Moreover, the confirmation game interacts with other political events. Given this iterative and interactive structure, there might be any number of stable medium-to-long term equilibria in the confirmation game. One possibility is that as the first mover, the President would have the advantage and the Senate would confirm candidates so long as the President nominates from within the confirmation zone. Another possibility is that the mean ideology score of confirmed judges would equal some value, with candidates from the left of the zone being traded off for candidates from the right of the zone. There are many other possible equilibria--but the two I have identified can serve as illustrative examples.
    Back to the Real World So how does all this relate to Brian Anderson's comments about Senator Schumer? Anderson's suggestion is that there is an asymmetry between the way Republicans and Democrats view judicial philosphy. Essentially, Anderson suggests that Democrats want left-realist judges and Republicans want right-formalist judges. But this is a partisan reading of recent events. Although Republicans favor formalism on some issues, e.g. the unenumerate liberty or privacy rights that undergird Roe v. Wade and Lawrence v. Texas, Republicans may prefer less formalist approaches to other issues, e.g. the constitutional sovereign immunity jurisprudence that seems to go far beyond the text of the 11th Amendment. Nonetheless, there is something to Anderson's point, reflected in the fact that in the legal academy and on the bench, originalists have tended to be conservative and nonoriginalists liberal.
    As frequent readers of this blog know, I have been arguing for some time that the best way out of the current downward spiral of politicization that affects both the bench and the judicial selection process is for both sides to take a long-run view of the benefits of the rule of law and the costs of politicization. But Anderson's characterization of the problem is correct, then that solution is unavailable. Why? Because Anderson's argument seems to be that restoration of the rule of law is not in the interests of the left. I disagree, in part because I believe that a doctrine strong stare decisis is part of the best formalist theory of judging, but this post has already gone on too long, and that is a topic for another day.
    And for more on Anderson, check out this post by Brett Marston.
    Update: And this post from C.E. Petit on Scrivener's Error.