Legal Theory Blog

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

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Tuesday, November 30, 2004
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Stephen Guest, Integrity, Equality, and Justice.
    Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation"
    University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics.
    Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law?
    Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".

Monday, November 29, 2004
Ashcroft v. Raich
    Introduction When I wrote these words, I was sitting in the chamber of the Supreme Court of the United States. The last time I was in this room, I was sitting on the bench in the chair usually occupied by Chief Justice Rehnquist—that’s another story altogether. On this occasion, Rehnquist’s chair was empty, but he will participate in the decision of the case heard today--Ashcroft v. Raich.
    Background The issue in Raich focuses on medical use of cannabis, authorized by a voter initiative in the State of California but prohibited by federal law. In particular, the issue is whether the federal government may prohibit the possession of home-grown, intrastate, noncommercial cannabis, the use and possession of which has been authorized by state law.
    In a sense, this case has its roots in the New Deal era. In 1937, the United States Supreme Court began to expand Congress’s legislative power in the famous case of Jones & Laughlin Steel (the case involving the so-called “switch in time that saved nine”). A few years later, the Court decided Wickard v. Filburn, in which a federal limitation of wheat production was upheld as applied to a Mr. Filburn’s use of wheat on his own farm. The rationale of that case was that the general class of all wheat grown and consumed on farms on interstate commerce would be substantial, and therefore, Congress could regulate the wheat even though it was never sold in interstate commerce. In the 1950s through the 1980s, the conventional wisdom was that the Supreme Court had removed virtually all limits on Congress’s power under the Commerce Clause of the Constitution. So long as there was a “rational basis” or even a “conceivable rational basis” for Congress’s action, it would be within Congress’s legislative power. It was therefore a shock when the Supreme Court decided two cases in the 1990s that struck down federal statutes on the grounds that they were outside of Congress’s power to regulate interstate commerce.
    The first of these two cases was Lopez, in which the Supreme Court struck down the Gun Free School Zones Act, a federal statute that prohibited the possession of a gun within 1000 feet of a school. The second case was Morrison, in which the Court struck down the Violence Against Women Act. These cases limited Wickard v. Filburn to regulations that involve “economic activity,” a category that the Court has never precisely defined but which seems to apply to actions that are part of a process that leads to sale or barter.
    The lower courts have recently begun to apply Lopez and Morrison in “as applied” challenges to other federal statutes. Examples include: (1) a home-assembled machine gun, (2) home-made child pornography, and (3) home-grown state authorized medical cannabis. Ashcroft v. Raich gives the Supreme Court an opportunity to clarify the meaning of Lopez and Morrison and potentially, an opportunity to further limit Congress’s power or to modify its two “new federalism” decisions in a way that would make them toothless. Raich is potentially a very important case, but it also could be decided on very narrow grounds.
    The Justices Enter The chamber is hushed as the Justices begin to enter, beginning with Justice O’Connor. Justice Stevens waits a few moments and then speaks, announcing that the Court will take motions of admission to the Supreme Court Bar. This quaint ritual is completed with dispatch, and Justice Stevens calls Paul Clement, the Acting Solicitor General of the United States to the podium.
    Caveat The following notes on the oral argument are only notes. In some cases, I was unable to transcribe a question or answer. In almost every case, my notes use some phrases from the actual exchange, but also substitute my own words to convey the “sense” of what I heard as I understood it.
    Petitioner’s Argument Paul Clement has the demeanor of a quiet and thoughtful man—an appellate lawyer’s appellate lawyer, if you catch my drift. He begins with by arguing that “Congress has comprehensively regulated drugs through the Controlled Substances Act.” No sooner does he begin, than Justice O’Connor interrupts:
      O’Connor: But do not our decisions in Lopez and Morrison dictate concerns in this context?
      Clement: But those decisions preserved this Court’s Darby and Wickard decisions, which validate the statute here.
      O’Connor: But this substance was not in national market or in any intrastate market, unlike the activity at issue in those cases.
      Clement: It would be optimistic to believe that there will be no diversion to the national market.
      O’Connor: But shouldn’t we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes?
      Clement: Marijuana is a fungible product and there is a national market in this drug.
      O’Connor: Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market?
      Clement: That would be irrelevant.
      O’Connor: But what would happen in my hypo?
      Clement: This Court in a series of cases has made it clear that it is not the conduct of the individual plaintiff, but the class of activities that Congress has chosen to regulate that is relevant.
    At this point, Justice Scalia joins the fray:
      Scalia: But isn’t it the case that Congress doesn’t want interstate commerce in marijuana? How does this regulation serve that end?
      Clement: Since the Lottery Case, it has been clear that Congress has the authority to ban a contraband from interstate commerce.
      Scalia: But that is not the same rationale as Wickard. You rely on Wickard to prohibit marijuana in order to reduce demand for the interstate market.
      Clement: The reality is that there is a 10.5 billion dollar market for marijuana.
      Scalia: Suppose hypothetically, there was no diversion
      Clement: The problems are parallel.
    And now Justice Kennedy joins in:
      Kennedy: What about the Perez case in which Congress banned loan sharking?
    And Justice Ginsburg quickly follows:
      Ginsburg: This not commercial activity, is it?
      Clement: This is economic activity, but not commercial activity. It is like the production of wheat.
    And Justice Souter now has a question:
      Souter: We can’t generalize from these plaintiffs, can we? Other medical users may purchase their cannabis from the illegal market?
      O’Connor: Wasn’t the wheat in Filburn in the interstate market? Not all of it was consumed on the farm.
      Clement: The wheat was consumed on the farm.
      O’Connor: But wasn’t other wheat from this same farm used in interstate commerce?
      Clement: The disposition of the particular wheat at issue in Filburn was not certain, but the case involved wheat consumed by the farmer as his own bread.
      Justice Kennedy: Is this a harder or easier case than Filburn, given that the substance here is illegal?
      Clement: Easier, because Congress can prohibit contraband. Marijuana is fungible, and Congress could conclude that any island of lawful possession is a threat to regulation of the contraband. Moreover, the legitimate use has been made available to patients in the form of a THC pill, Marinol.
      Ginsburg: But on this record, isn’t their evidence that the pill does not work. Would the patients have any defense if they were criminally prosecuted?
      Clement: The Oakland Cannabis Buyers Club case, as we read it and some members of this Court may disagree, rejects a medical necessity defense. But there is a deeper flaw in Respondent’s position: there is a mismatch between the California law and the argument that this conduct does not involve interstate commerce. California provides a defense even to those who purchase marijuana from the illegal interstate market.
    Justice Stevens now joins in.
      Stevens: What class of activities is at issue here? Are you saying that there can never be an as applied challenge?
      Clement: Yes, under the commerce clause, there can be no as applied challenge.
    This was a hugely significant exchange. If there is no such thing as an as-applied challenge under the Commerce Clause, then the government wins. But this position seems radically implausible. In Wickard v. Filburn itself the Supreme Court analyzed the challenge “as applied” to Mr. Filburn’s conduct.
      O’Connor: In Morrison didn’t we say that the Commerce Clause does not reach noneconomic activity that only affects commerce through a “but for” causal chain?
      Clement: In Morrison, the activity was noneconomic.
      O’Connor: Isn’t this activity noneconomic, because the marijuana here was grown for personal use?
      Clement: But Wickard v. Filburn is indistinguishable.
      Justice Kennedy: If we rule for the plaintiff’s wouldn’t the price for marijuana go down?
      Clement: Yes, the price would go down. Congress is trying to increase the price for marijuana by creating a black market. Marinal provides a safe version of THC, and that provides a hook for the application of Congress’s Commerce Clause power. The statute trumps the individual physician’s determination that raw marijuana is medically necessary. The federal regulations do not allow doctors to make such a determination.
      Stevens: Can we ignore a district court finding that marijuana is medically beneficial?
      Clement: It depends. If the context is review of the scheduling decision, then the medical evidence would be relevant. The FDA has no inherent hostility to THC; it has rescheduled marinol from the schedule 2 to schedule 3.
      Ginsburg: Have there been any challenges to marijuana’s position on schedule one?
      Clement: Yes. Efforts have been made. The Institute of Medicine Study made it clear that smoked raw marijuna has no future as a legitimate phramaceutical. Rather, we would take the raw material and synthesize the medically beneficial ingredients. This is because smoking marijuana is harmful.
      Souter: If the Respondent’s argument suceeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can’t we take into account the health benefits of medical marijuana?
      Clement: It would not be a good idea for the courts to second guess Congress.
    Respondent’s Argument Clement’s argument ended with his reservation of time for rebuttal. The oralist for the Respondent is Randy Barnett—familiar to many readers of Legal Theory Blog as a member of the Volokh Conspiracy and a distinguished constitutional law scholar. Barnett begins:
      Barnett: May it please the Court, I have two points. The first point is that the activity involved here is wholly intrastate and noneconomic in nature. The second point is that regulation of this activity is not essential to a broader regulatory scheme.
      Kennedy: But isn’t simple possession part of the market.
      Barnett: It depends on the facts. Posession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not.
      Kennedy: But isn’t marijuana fungible?
      Barnett: Fungibility is at issue in this case, but the fungibility of marijuana does not speak to the question whether possession of marijuana for personal medical use is economic activity.
    Justice Scalia jumps in:
      Scalia: What about the Endangered Species Act? Can Congress reach possession of a individual member of an endangered species if there is no economic activity.
      Barnett: That might be essential to a broader regularoty scheme, but in this case the medical use of marijuana is isolated by state law from the interstate market.
      Scalia: What is the basis for narrowing the category of activity in that way?
      Barnett: The State of California has narrowed the class of activity by authorizing only medical cannabis.
      Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.
    Justice Breyer now gets in:
      Breyer: I haven’t been able to understand why it would be that Congress has no power when the state acts. Why would state regulation limit federal power?
      Barnett: The federal government can only reach noneconomic activity if the state’s authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market.
      Breyer: What if a state were to authorize use of cocaine or heroin or genetically modified tomatoes that Congress believed were harmful to health?
      Barnett: Congress could reach such noneconomic activity if it were essential to a broader regulatory scheme.
      Breyer: So you are asking us to compare the state and federal schemes and to determine whether the it is essential to the federal scheme in light of what the state scheme does. That sounds difficult for this court to do. The government is arguing in this case that large numbers of consumers will use medical marijuana, and hence that lower prices will undermine the federal scheme. We won’t know what effect the state law will have on the federal scheme. Won’t that be a mess?
      Barnett: There are two points in your question. (1) whether numbers of medical users will be large, and (2) whether it will be possible to identify medical users and hence distinguish them from recreational users. On the first point, the numbers are very small. The government quotes the National Organization for Marijuana Laws for their figure of 100,000. We quote the official government figures showing the number is insignificant. These people are taken out of the illegal market by the California law.
      Breyer: But isn’t the effect for Congress to decide?
      Barnett: There is a threshold issue. If this is noneconomic activity, then it can only regulated if essential to a broader regulatory scheme.
      Kennedy: But isn’t this just like baking bread or washing dishes, which our cases show is an economic activity?
      Barnett: Those can be economic activities if they are part of a commercial enterprise, but the government’s position leads to the conclusion that washing dishes at home is economic.
      Souter: Assume there are 100,000 users, under the California statute, can’t they buy it on the street? The statute does not differentiate between possession of homegrown and street-bought marijuana.
      Barnett: But medical users have every incentive not buy marijuana on the street. They can be prosecuted for buying it on the street.
      Souter: Couldn’t it be the case that millions of medical users would be buying marijuana on the street?
    The next exchange, between Barnett and Ginsburg, explored a particularly interesting issue.
      Ginsburg: If we rule for you, why wouldn’t our ruling cover someone in a neighboring state who grew their own marijuana for medical use even though the state had not authorized it?
      Barnett: There are two differen answers to this question. First, assuming this Court does not create an “essential to a broader regulatory scheme” exception to Lopez and Morrison, then your ruling would reach noneconomic medical use in states that have not authorized medical cannabis use. Second, if you do recognize the “essential to a broader regulatory scheme” exception, then the question is whether the lack of authorization makes a difference. California, for example, will issue ID cards that will help to isolate medical use from the interstate market.
      Ginsburg: But there are no ID cards now.
      Barnett: But the Court should trust the state to take those measures necessary so that the state authorization serves its intended purpose.
    And the next exchange, between Barnett and Justice Breyere was also very interesting.
      Breyer: Now I think I understand your position. You are arguing that if the activity is noneconomic, then Congress can only reach it under the “essential to a broader regulatory scheme” exception. But then doesn’t the Morrison case go my way, on the theory that the regulations challenged there were essential to a broader scheme.
      Barnett: That’s why the “essential to a broader regulatory scheme” exception must be interpreted narrowly—so that it is consistent with Morrison.
    Justice Breyer clearly grasps the Respondent’s theory, but because he dissented in Morrison, he does not accept its underlying premises.
      Breyer: But isn’t the connection to the market closer than in Morrison?
      Barnett: But here, unlike Lopez where the gun was from interestate commerce, the marijuana is wholly intrastate.
    In the next exchange, Barnett and Scalia disagree over the meaning of Wickard v. Filburn.
      Scalia: If there had been an interstate connection in Lopez, wouldn’t we come out there other way?
      Barnett: But here there is no interestate connection.
      Scalia: That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm.
      Barnett: If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought.
      Scalia: Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly.
      Barnett: The phrase “home consumed” in context meant consumed on the farm, by feeding to livestock, etc.
      Breyer: But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it “exerted substantial economic effect”.
      Barnett: At that time, the Court was using the narrower definition of “commerce” that Justice Thomas has argued for. What we would call it today is “economic activity.” Filburn was engaged in economic action as part of a commercial farming enterprise.
      Scalia: So why isn’t this economic activity?
      Barnett: In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market.
      Stevens: What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices?
      Barnett: Can I choose trivial reduction of price?
      Stevens: If you reduce demand, then you will reduce prices? Wouldn’t it increase prices?
      Barnett: No, if you reduce demand, you reduce price.
      Stevens: Are you sure?
      Barnett: Yes.
      Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana?
      Barnett: There could be.
      Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy.
      Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic.
      Souter: But isn’t the argument that it is economic activity if it has a sizeable effect on the market?
      Barnett: No. The effect on the market is only relevant if it is market activity.
      Souter: But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case?
      Barnett: The point is that economic activity and personal liberty are two different categories.
      Souter: That is not a very realistic premise.
      Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.
      Breyer: If marijuana is medically helpful, can’t your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn’t I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum?
      RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people.
      Kennedy: Are prescriptions limited to cases where marijuana is life saving?
      Barnett: It is limited to a list of illnesses.
      Ginsburg: I have procedural question. You’ve asked for an injunction against criminal prosecutions. Isn’t there an equitable principle against enjoining criminal prosecutions?
      Barnett: We’ve also asked for an injunction against the seizure of marijuana, which has occurred in this case. Such seizures put the supply at jeopordy.
    Petitioner’s Rebuttal Clement then proceeded to a short rebuttal, which was not interrupted by the Court.
      Clement: Respondent wishes the Court to believe that medical cannabis is hermetically sealed, but the state law is not designed to limit the class of authorized activity to the intrastate noncommercial marijuana. We have cited the NORML figure which indicates that there are 100,000 users. The Respondent’s brief indicates that .5% of the poplulation uses medical marijuana; that translates into 170,000 users. As to what conditions are covered, the last item on the list includes any other condition that gives rise to chronic and serious harm to physical or mental health. That is a very broad definition. In real world cases, the defense provided by the California law was made available to a defendant who had 19 ounces of marijuana and a scale. That case was allowed to go a jury. In a Santa Cruz case, a 250 person cooperative claimed the benefit of the law. The line between the illegal market and authorized medical use is not practical.
    And with that oral argument came to a close.
    Impressions Both oralists did very well. And both sides have weaknesses in their theories. Here are some specific points:
    • The government’s position on the line between economic and noneconomic activity is very weak. Cross substitution of demand is a very reasonable conception of the economic for the purposes of the academic study of economics, but it is just plain silly as an interpretation of Lopez and Morrison. The Respondent’s position in oral argument—that economic activity must be part of a process leading to sale or barter—is much stronger. Under the government’s theory, virtually all human activity is economic, including the very activity at issue in Lopez and Morrison.
    • The government’s positon on as applied challenges is also problematic. Essentially, the government seems to argue that the only permissible challenges under the Commerce Clause are facial challenges. The consequence is that the class of activity regulated is all of the activity reached by the statue. If that position is accepted by the Court, then the government wins in Ashcroft v. Raich, but the implication would be that Congress could reach any conceivable activity simply by including the regulation of that activity within a statute that also reached interestate commerce. That position might have been accepted before Lopez and Morrison, but it cannot be accepted today unless the Supreme Court wants to limit or overrule its “New Federalism” cases.
    • The government made a very strong case for the idea that it will be hard to draw a line between medical and nonmedical uses. The examples given at the very end of Clement’s rebuttal were especially effective.
    • The respondents were remarkably effective in the way they handled the “parade of horribles,” e.g. the possibility that a ruling for them could lead to an inability to regulate intrastate heroin, endangered species, etc. Their key move was to show that such regulations could be validated if the Court does adopt the “essential to a broader regulatory scheme” exception that was suggested in Lopez.
    • The respondents were very strong on the economic/noneconomic distinction. Barnett’s prostitution/marriage example was especially compelling. Only Justice Souter seemed outwardly unconvinced by this line of argument.
    • The respondents were very strong on the theory of the “essential to a broader remedial scheme” exception. Many of the justices seemed to accept that Congress only had power if the government could show that the regulation of intrastate, noneconomic, state-authorized medical cannabis was essential to regulation of the interstate recreational markiet.
    Bottom Lines So how will Ashcroft v. Raich come out? I don’t know. I got a sense that O’Connor, Ginsburg, and perhaps Stevens were quite sympathetic to the respondents. Based on his questions, Justice Kennedy seemed quite favorable to the government. One would guess that Justice Thomas will be the hardest member of the Court for the government to win. One might also guess that it will be hard for the petititoners to win Souter or Bryer, who both are very skeptical of Lopez and Morrison. Justice Rehnquist is hard to call. We didn’t hear from him. One suspects he is both pro-federalism/state power and pro-federal regulation of drugs. One can imagine this case coming out 5-4 either way. Before argument, I would have said it could be 9-0 either way, but if I allow myself the dangerous pleasure of reading the tea leaves, I now think that is unlikely.

Monday Calendar
    Columbia Legal Theory Workshop: Jeffrey Stout of Princeton University, "The Spirit of Democracy".
    NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification.
    Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge.
    UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".

Book Announcement: Covenants without Swords
    Covenants without Swords: Idealist Liberalism and the Spirit of Empire by Jeanne Morefield To read the entire book description and a sample chapter, please visit: Covenants without Swords examines an enduring tension within liberal theory: that between many liberals' professed commitment to universal equality on the one hand, and their historic support for the politics of hierarchy and empire on the other. It does so by examining the work of two extremely influential British liberals and internationalists, Gilbert Murray and Alfred Zimmern. 0-691-11992-9 Cloth $39.50 US and £26.95 280 pages. 6 x 9.

Sunday, November 28, 2004
Legal Theory Calendar
    Monday, November 29
      Columbia Legal Theory Workshop: Jeffrey Stout of Princeton University, "The Spirit of Democracy".
      NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification.
      Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge.
      UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".
    Tuesday, November 30
      Oxford Jurisprudence Discussion Group: Stephen Guest, Integrity, Equality, and Justice.
      Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation"
      University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics.
      Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law?
      Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".
    Wednesday, December 1
      Florida State University, School of Law: Sanja Kutnjak Ivkovich, Florida State University School of Criminology, "A Comparative Perspective on the Police Code of Silence."
      Oxford Centre for Criminology: James L. Nolan, Problem-Solving Courts: a Comparative Study of a Legal Transplant.
      Oxford Institute of European and Comparative Law in conjunction with Comparative Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
      Oxford Public International Law Discussion Group in conjunction with Financial Law Discussion Group: Lee Buchheit, The Role of the Official Sector in Sovereign Debt Workouts: the Case of Iraq.
      NYU Legal History: William Novak, Visiting Professor, NYU School of Law.
      Oxford Comparative Law Discussion Group in conjunction with Private and Commercial Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
    Thursday, December 2. Friday, December 3

Legal Theory Lexicon: Fact and Value
    Introduction Law students quickly learn that normative argument is an integral part of the law school experience. And sooner or later, they are likely to encounter what is called the fact/value distinction. Of course, the relationship between fact and value is a deep and complex philosophical topic. Even a survey of the basic topics would take us far afield into the heart of metaethics and across the field of normative moral philosophy. Nonetheless, we can take a quick look at three important ideas with which every legal theorist should have a basic familiarity.
    Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
      I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar [poorly reasoned] systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason.
    What is Hume up to? One might start with the idea that Hume's point is about the form of moral arguments. If all the premises are "is" propositions, then perhaps Hume is claiming that some sort of logical fallacy has been committed if the conclusion of the argument is an ought statement. Consider this example:
      Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
      Conclusion: Therefore, the United States ought to withdraw from Iraq.
    We might think that there is a missing premises, which would be of the form:
      Premise: The United States policy towards Iraq ought to aim at saving lives and improving the condition of the Iraqi people."
    But there is a problem with this interpretation of Hume's point. One can easily produce a version of the argument that contains only is premises, but that looks more or less valid. For example:
      Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
      Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy.
      Conclusion: Therefore, the United States ought to withdraw from Iraq.
    I'm sure that you, gentle reader, have run ahead of me, and are at this very point objecting that the second premise includes a covert "ought" statement. And perhaps it does, but the point of the exericse is that Hume's point is not just about the formal qualities of moral arguments. For his point to get off the ground, it must have substantive metaethical punch--it must be grounded on some theory about what counts as a fact and what counts as a value.
    G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition.
    The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line.
    Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law!
    If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth.
    Conclusion Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way!
Many readers of legal theory blog are entering the last week of classes or are about to begin fall examinations. Good luck and best wishes!

Saturday, November 27, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends A New World Order by Anne-Marie Slaughter. Here is a brief description:
    Breaking new ground in international relations theory, Slaughter urges readers to lose their "conceptual blind spot" and see how the world really works. Scholars, pundits and policymakers, she writes, have traditionally seen nations as "unitary"—that is, as single entities that "articulate and pursue a single national interest." In fact, she says, we would do better to focus on government networks, both horizontal and vertical. Horizontal networks link counterpart national officials across borders, such as police investigators or financial regulators. Vertical networks are relationships between a nation's officials and some supranational organization to which they have ceded authority, such as the European Court of Justice. Networks, she says, are the solution to the "globalization paradox": The world needs global governance to combat problems that jump borders, like crime and environmental degradation, and yet most people fear—rightly, Slaughter implies—the idea of a centralized, all-powerful world government. The book both describes the here and now and plots a course for the future: Strengthening existing networks and developing new ones "could create a genuine global rule of law without centralized global institutions." The author, who is the dean of the Woodrow Wilson School of Public and International Affairs at Princeton as well as president of the American Society of International Law, is steeped in these issues and offers genuinely original thinking. Written in dense academic language, this book will not pick up many casual readers, but it will likely attain instant textbook status and generate much discussion about foreign policy and whether, as Slaughter believes, the U.S. should welcome such networks in a globalized world.
I take special pleasure in recommeding Slaughter's very fine book!

Download of the Week This week, the Download of the Week is Moral Positivism by Roger Crisp. Here is a taste from early in the paper:
    Philosophical ethics is like the philosophy of religion or jurisprudence, in that it emerges out of a set of social practices with their own particular place in our lives. Without religion or law, there would be no philosophy of religion or jurisprudence; and without morality, there would be no ethics. Nearly every human society that we know of has possessed some form of morality or other – what I shall call a ‘positive morality’:
      Positive Morality: An internalized set of cognitive and conative states, socially engendered and including beliefs, desires, and feelings, which leads its possessor among other things to (a) view certain actions as wrong (that is, forbidden by morality) and hence to be avoided, (b) feel guilt and/or shame as a result of performing such actions, and (c) blame others who perform such actions. Note that this definition is intended to capture the ‘core’ of positive morality as we understand it. We might imagine a set of action-guiding states consisting only in beliefs about ideals, and involving as sanctions only ‘carrots’ rather than ‘sticks’ – what Hume calls in the conclusion to his Enquiry ‘the peaceful reflection on one’s own conduct’, for example, and praise rather than blame. Our own positive morality of course contains such elements, but for the purposes of my discussion I shall take them as inessential. A positive morality may lack them, and on their own they are too distant from our conception of a morality to be thought of as essential. The central elements of a positive morality are attributions of wrongness, and the sanctions of guilt, shame, and blame.
    Those familiar with the philosophy of law will already have guessed that I chose the name ‘positive morality’ advisedly, to correlate with the term ‘positive law’ as used to refer to those laws that have been created within some legal system or other, as opposed to ‘natural law’, which is not created by human beings and is independent of legal systems understood in positive terms.8 For I now want to claim that there are important analogies between positive law and positive morality.
Highly recommended! Download it while its hot!

Friday, November 26, 2004
Law & Politics Book Review
    THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW, by Larry D. Kramer. New York: Oxford University Press, 2004. 363pp. Hardback. $29.95 / £19.99. ISBN: 0-19-516918-2. Reviewed by John Michael Eden & John Paul Ryan.
    RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, by Randy E. Barnett. Princeton, New Jersey: Princeton University Press, 2003. 360pp. Cloth. $32.50 / £21.50. ISBN: 0-691-11585-0. Reviewed by Ronald Kahn.
    OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? by James L. Gibson. New York: Russell Sage Foundation, 2004. 467pp. Hardcover. $47.50. ISBN: 0-87154-312-5. Reviewed by Ayo Ogundele.
    PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM, by Geoffrey R. Stone. New York: W. W. Norton & Company, 2004. 800 pp. Cloth $35.00. ISBN: 0-393-05880-8. Reviewed by Brian Pinaire.
    DEVIANT KNOWLEDGE: CRIMINOLOGY, POLITICS AND POLICY, by Reece Walters. Portland, OR: Willan Publishing, 2003. 256pp. Paperback. £18.99 / US $29.50. ISBN 1-84392-029-8. Hardback. £40.00 / US $59.95. ISBN 1-84392-030-1. Reviewed by Lisa L. Miller.
    THE MOTHER OF ALL CRIMES: HUMAN RIGHTS, CRIMINALIZATION AND THE CHILD BORN ALIVE, by Emma Cave. Burlington, VT: Ashgate Publishing Co., 2004. 172pp. Hardback. $84.95 / £47.50 ISBN 0-7546-2366-1. Reviewed by Rhonda L. Callaway.
    LIMITING ARBITRARY POWER: THE VAGUENESS DOCTRINE IN CANADIAN CONSTITUTIONAL LAW, by Marc Ribeiro. Vancouver: UBC Press, 2004. 256pp. Hardcover. $85.00. ISBN: 0-7748-1050-5. Paper $29.95. ISBN: 0-7748-1051-3. Reviewed by Matthew Hennigar.
    KNOWLEDGE POWER: INTELLECTUAL PROPERTY, INFORMATION & PRIVACY, by Renée Marlin-Bennett. Boulder and London: Lynne Rienner Publishers, 2004. 274 pp. Paperback. £16.50 / $23.50. ISBN: 1-58826-281-2. Hardcover. £45.95 / $59.95. ISBN:1-58826-256-1. Reviewed by Debora Halbert.
    JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW, by Simon Halliday. Oxford and Portland, Oregon: Hart Publishing, 2004. 188 pp. Hardcover $50.00 / £25.00 ISBN: 1-84113-265-9. Reviewed by Eli Paul Mazur.

Thursday, November 25, 2004
Call for Papers: Emotions, Others, and the Self
    CALL FOR PAPERS EMOTIONS, OTHERS AND THE SELF August 25-27, 2005 Åbo Akademi University, Turku/Åbo, Finland. The research group "Emotions and Understanding" at the Department of Philosophy, Åbo Akademi University, Turku/Åbo, Finland, invites papers for an international conference on the theme "Emotions, others and the self", 25-27 August, 2005. THE THEME OF THE CONFERENCE In recent years academic interest in emotions has increased in different fields such as psychology, cognitive science, education, and philosophy. In philosophy emotions are now considered to be important from many different angles, in moral philosophy as well as in philosophy of mind, philosophy of psychology, social and political philosophy, etc. The focus of philosophical discussions of emotions has often been on whether emotions are merely feelings or whether they involve rational thinking. These discussions tend to concentrate on how emotions concern us as individuals. Rather than discussing emotions as a matter of individual experience or as a matter of rational belief, the theme of this conference is to bring out the various roles emotions have from the perspective of a life shared with other people. Themes that may be discussed from an interpersonal perspective are: Emotions and moral concern; Emotions and personal relations; How do we understand other people's emotions?; Emotions from a feminist perspective; Emotions and the body; The other as a condition for emotional maturity and growth; Emotions, health and madness; Emotions and self-understanding; Interpersonal emotions such as love, envy, hate, jealousy, anger, sorrow, shame, guilt etc. Also other workshop themes may come up depending on the abstracts that are submitted. The plenary speakers of the conference include: Lilli Alanen, (Uppsala University), author of Descartes' Concept of Mind. John Canfield, (University of Toronto), author of The Looking Glass Self, an examination of self-awareness. Leila Haaparanta, (University of Tampere). Phil Hutchinson, (Manchester Metropolitan University). Camilla Kronqvist, (Åbo Akademi). Brian Parkinson, (Christchurch College, Oxford) author of Ideas and Realities of Emotion and Emotion in Social Relations: Cultural, Group and Interpersonal Processes. Robert C. Roberts, (Baylor University, Texas), author of Emotions: An Essay in Aid of Moral Psychology. Robert C. Solomon, (University of Texas at Austin), author of The Passions and About Love: Reinventing Romance for our Time. CALL FOR PAPERS We hereby invite workshop contributions which address questions related to the theme of the conference. Each workshop session will be 45 minutes (20 minutes for presentation, 25 minutes for discussion).We plan to make the plenary papers and the workshop abstracts available in advance on the conference website. Please submit a 500 word abstract of the paper you wish to present by email to: preferably as a Word document or in RTF format. DEADLINE for abstracts is 15 April 2005! Accepted authors will be notified by 15 May 2005. We also warmly welcome participants who do not wish to give a paper. The conference fee will be 20 EUR. For undergraduate students the conference is free of charge. The optional conference dinner will cost around 25 EUR extra. More information will be found at: ORGANIZERS The conference is organized by the "Emotions and Understanding" research project at the Department of Philosophy, Åbo Akademi University, Turku/Åbo, Finland and financed by the Academy of Finland. More information about our project can be found at The members of the organizing committee are Ylva Gustafsson, Lars Hertzberg, Tom Kettunen, Camilla Kronqvist and Michael McEachrane. CONTACT INFORMATION Tom Kettunen Department of Philosophy at Åbo Akademi University Fabriksgatan 2 FIN-20 500 Åbo Finland email: tel. +358 2 215 3611

Conference Announcement: Intentionality, Deliberation and Autonomy
    “Intentionality, Deliberation and Autonomy – The Action-Theoretic Basis of Practical Philosophy” March 11-13, 2005 – Certosa di Pontignano – Siena – Italy PUBLIC ANNOUNCEMENT THE CONFERENCE: March 11-13, 2005 an international conference "Intentionality, Deliberation and Autonomy – The Action-Theoretic Basis of Practical Philosophy" will be held at the University of Siena (Italy) (or more precisely: in the university's conference centre Certosa di Pontignano in the countryside of Siena). AIM OF THE CONFERENCE: A central philosophical presupposition leading to this conference is that philosophy of action at least in part should provide important underpinnings for the rest of practical philosophy. It should e.g. explain what desires and explanatory reasons consist in and what their content is, which then would be an important basis for normative theories of practical reason and practical rationality. Or it should explicate what intentionality and attributability consist in for providing the basis for moral, legal etc. theories of responsibility. Or it should find out the basis of autonomy and contribute to normative theories of autonomy; etc. In the last decades action theory sometimes has lost sight of this practical orientation. The aim of the conference is to strengthen the relation to practical philosophy in philosophy of action and to support and promote those approaches, developments and theories that might be able to provide important foundations for practical philosophy. SPEAKERS AND PAPERS: Papers will be presented by (papers' titles are only provisional):
      Robert Audi (University of Notre Dame, USA): The Grounds and Structure of Reasons. Michael Bratman (Stanford University, USA): Anchors for Deliberation. Eddy Carli (Università di Padova, Italy): Do Practical Syllogisms Systemize Practical Reasoning? Carl Ginet (Cornell University, USA): An Action Can Be Both Uncaused and Up to the Agent. Geert Keil (Humboldt Universität Berlin, Germany): What Do Deviant Causal Chains Deviate From? Christoph Lumer (Università di Siena, Italy): Practical Reasons Empirically. Hugh McCann (Texas A&M University, USA): The Will and the Good. Alfred Mele (Florida State University, USA): Free Will: Action Theory Meets Neuroscience. Carlos Moya (Universidad de Valencia, Spain): Belief and Moral Responsibility. Sandro Nannini (Università di Siena, Italy): Action Theory and Cognitive Turn. Michael Quante (Universität Duisburg-Essen, Germany): Autonomy for real people. Neil Roughley (Universität Konstanz, Germany): Unwrapping the Package Deal: Why Intention's Specificity is no Foundation for Double Effect. Gottfried Seebass (Universität Konstanz, Germany): Forming the Will Freely. Michael Smith (University of Princeton, USA): Diachronic Self-Control. Thomas Spitzley (Universität Duisburg, Germany): Autonomy and Weakness of the Will. Ralf Stoecker (Universität Bielefeld, Germany): Responsibility and Action – a second look at ascriptivism.
    ORGANIZATION AND SPONSORING: The conference is organized by Christoph Lumer (e-mail: and Sandro Nannini (e-mail: (both University of Siena). Sponsoring by the Fritz Thyssen Stiftung is gratefully acknowledged. PARTICIPATION: The conference shall be more or less open for "passive" participants, available space permitting. The cost of three days accommodation and full board in the Certosa di Pontignano is about 160-190 Euros (single person) and about 280 Euros (two persons in double room), respectively; attendance itself will be without charge. Those interested in participation may contact Mrs. Fancesca Ghiselli (e-mail: FURTHER INFORMATION: Further information about the conference is available on the conference's website:

Wednesday, November 24, 2004
Wednesday Calendar
    Florida State University, School of Law: David Driesen, Syracuse University, "Cost-Benefit Analysis as a Neutral Principle."
    Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib.
    Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure"
    Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.

Tuesday, November 23, 2004
Rodriguez on Straw Polls Daniel B. Rodriguez (University of San Diego School of Law) has posted Straw Polls (Journal of Contemporary Legal Issues, Vol. 12, p. 791, 2002) on SSRN. Here is the abstract:
    A key measure of the democratic quality of a political community is how its members vote. The design and implementation of voting arrangements can illuminate the nature, purposes, and even potential of a community of citizens. Voting is, at the very least, used to sort out and implement preferences. Voting processes help in sorting out winners from losers and thereby provide a presumptively fair method for the implementation of public policy. At the same time, voting in a democratic policy is a coercive act. Voters are not merely expressing preferences; they are acting in order to transform their preferences into policy. How ought we to think about this coercive aspect of voting? The subject of my essay is one narrow aspect of this larger puzzle, that is, the consideration of a particular voting device - the straw poll - and its potential impact upon democratic decision-making. The puzzle of voting as a democratic method of deciding in political communities that interests me here is this: How much difference does it make, and ought it to make, whether voters who make their views known in a particular decision-making episode know of the preferences of others? And from a practical political standpoint, the interdependence of decision-makers' preferences is a ubiquitous feature of politics, affecting logrolling, negotiations, and various aspects of political strategy. My basic normative claim is that to the extent that a political community ought to value the preferences, thoughts, and ideas of others, it ought to reflect upon community members' preferences before finally deciding. In discussions of participatory democracy, this other-regardingness is usually dealt with by some sort of deliberation. Another way - more mechanical, but more realistic as a component of a decision-making process - is through the mechanism of a straw poll.
Download it while its hot!

Farmer & Pecorino on Settlement Failure Amy Farmer and Paul Pecorino (University of Arkansas at Fayetteville - Department of Economics and University of Alabama - Department of Economics, Finance and Legal Studies) have posted Preferences, Information and Settlement Failure on SSRN. Here is the abstract:
    Asymmetric information on preferences is a potentially important explanation of bargaining failure. Preferences are not directly observable and information about preferences may be difficult to credibly establish to a bargaining partner. Unobserved preferences which may be relevant for pretrial bargaining include the degree of risk aversion, the degree of litigiousness, and a taste for fairness. These contrast with fact based explanations such as asymmetric information on the probability of a finding for the plaintiff at trial or on the extent of the plaintiff's damages. In this paper, we show that there is an important difference between informational asymmetries which are fact based and those which are preference based. In particular, with a fact based asymmetry, the standard bargaining model predicts trials regardless of whether the uninformed party or the informed party makes the offer. By contrast, under the preference based explanation, disputes are only predicted in the model in which the uninformed party makes the offer. We illustrate this point in a simple model of pretrial bargaining.

Tuesday Calendar

Monday, November 22, 2004
Monday Calendar

Bell on Just Compensation Abraham Bell (Bar Ilan University - Faculty of Law) has posted Not Just Compensation on SSRN. Here is the abstract:
    This Article develops a contributory negligence rule for takings compensation under which property owners will not be awarded compensation where they overdevelop their property. I propose that a contributory negligence standard be implemented by soliciting homeowner self-assessments that would serve as the basis of both the magnitude of the award of takings compensation and of the decision as to whether property development has been contributorily negligent. By analogy with economic models of tort law, I show that compensation policy must create bilateral incentives that, on the one hand, deter government decisionmaking on the basis of fiscal illusion, and, on the other hand, discourage property owner behavior on the basis of moral hazard. To be coherent, this compensation policy must have a clear manner of determining the baseline value of property, and it must avoid strategic timing that creates condemnation blight.

Drassinower on Originality in Canada Abraham Drassinower (University of Toronto - Faculty of Law) has posted Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law (University of Ottawa Law & Technology Journal, Vol. 105, No. 1 & 2, 2003-2004) on SSRN. Here is the abstract:
    The paper offers a theoretical analysis of the tension between "sweat of the brow" and "creativity" approaches to the "originality" requirement in recent Canadian copyright jurisprudence. The paper formulates that tension as one between two different and incompatible versions of the very meaning and purpose of copyright law. On the one hand, the "sweat of the brow" approach reflects a "misappropriation" model of copyright law, for which fairness to the author as labourer is the central and animating concern. On the other hand, the "creativity" approach reflects a "public interest" model of copyright law, for which the production and dissemination of authorial works in the name of the public interest is the central and animating concern. In that context, the paper reveals the neglected influence of a third vision of copyright law: the "authorship" model. On that basis, the paper shows that, because it is not framed in terms of the traditional opposition between author and public, the authorship model offers a vision of copyright law for which respect for authorship is consistent with the public domain. In so doing, the paper engages themes fundamental to the Supreme Court of Canada's recent landmark decision in CCH Canadian Ltd. V. Law Society of Upper Canada.

Event Announcement: Engemann at Stanford's CIS
    The Center for Internet and Socienty (CIS) and the Stanford Law and Technology Association (SLATA) Lunchtime Speaker Series Present: Free Software in the public sector - on the political economy of code with Christoph Engemann CIS Fellow Monday November 22, 2004 12:30 - 1:30 p.m. Room 180 Free and Open to all! Lunch Served The public sector has become a major driver in the adaption of Free Software solutions. The decisions of the municipalities of Munich and Paris to migrate from Microsoft to Linux are only the most visible examples, while many other government entities worldwide silently follow suit. Some countries even have banned the use of proprietary software within their administrations. The development as such remains fiercely contended, with proprietary software vendors claiming that their solutions can deliver the same or better quality and security as Free Software at a competitive price point. In his presentation Christoph will give an overview of the recent development in this field and will develop a normative argument why liberal-democratic societies are obliged to adopt Free Software in the public sector. Learn more about Christoph at his blog--

Sunday, November 21, 2004
Legal Theory Calendar
    Monday, November 22 Tuesday, November 23 Wednesday, November 24
      Florida State University, School of Law: David Driesen, Syracuse University, "Cost-Benefit Analysis as a Neutral Principle."
      Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib.
      Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure"
      Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.

Legal Theory Lexicon: Conduct Rules and Decision Rules The target audience of Legal Theory Lexicon is law students, especially first year law students, with an interest in legal theory. Here is a very short entry to provide a very brief break from studying:
    Substantive rules of law (such as the rules of torts, contract, and property) are usually assumed to be addressed to two audiences. As conduct rules, the substantive law is addressed to everyone (citizens, officials, and noncitizens). Thus, property law tells us who has dominion over which resources. If this land is mine, then the law communicates the message that I can use my land and exclude others from its use. These very same legal rules also serve as decision rules, they tell courts how to resolve disputes. We usually assume that the content of the conduct rules are the decision rules are identical, but this need not be the case. Professor Meir Dan-Cohen of U.C. Berkeley proposed a very famous thought experiment. He asked us to imagine acoustic separation between ordinary citizens, who would only "hear" the conduct rules, and officials (such as judges), to whom the decision rules would be addressed. This leads naturally to the following thought: should decision rules and conduct rules have the same content or should they differ. And if they differ, how could the law prevent acoustic leakage, e.g. prevent ordinary citizens from learning about the content of the decision rules?
    Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content.
    But how can we excuse ignorance of the law without altering the conduct rule?One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law.

Saturday, November 20, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Taking the Constitution Away from the Courts by Mark Tushnet. Here's a brief description:
    Here a leading scholar in constitutional law, Mark Tushnet, challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. Many people, particularly liberals, have "warm and fuzzy" feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as "We the People of the United States." The Constitution belongs to us collectively, as we act in political dialogue with each other--whether in the street, in the voting booth, or in the legislature as representatives of others. Tushnet urges that we create a "populist" constitutional law in which judicial declarations deserve no special consideration. But he warns that in so doing we must pursue reasonable interpretations of the "thin Constitution"--the fundamental American principles embodied in the Declaration of Independence and the Preamble to the Constitution. A populist Constitution, he maintains, will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy's opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out that in this context and in many others, errors occurred because of the existence of judicial review: neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. Tushnet's clarion call for a new kind of constitutional law will be essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.

Download of the Week The Download of the Week is Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law? by Matthew Adler. Here is the abstract:
    The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, "The Concept of Law," by arguing that law derives from a social rule, the so-called rule of recognition. But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group's practices ground each legal system? In particular, which group's practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the recognitional community (my term): the group whose rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist's official- or judge-centered account of the recognitional community and the popular constitutionalism now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position deep popular constitutionalism. Indeed, it turns out that Dworkin's account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement - to the debate between deep popular constitutionalists and deep official or judicial supremacists - is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group's norms, yet socially inappropriate relative to another's. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his-recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a shared cooperative activity (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that law functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory - in particular, for popular constitutionalism.
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Friday, November 19, 2004
Friday Calendar

Hamdani & Klement on Class Defense Assaf Hamdani and Alon Klement (Faculty of Law, Bar Ilan University and Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Class Defense (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
    Lawmakers, courts, and legal scholars have long recognized that consolidating the claims of dispersed plantiffs with similar grievances may promote justice and efficiency. In this Article, we argue that justice and efficiency also mandate that similarly positioned defendants be provided with an adequate procedure for consolidating their claims. We explore the circumstances under which costly litigation and collective action problems will prevent dispersed defendants with plausibly valid defense claims from confronting plaintiffs in court and analyze the troubling fairness and deterrence implications of such failure. We then demonstrate that aggregated claims will rectify the imbalance between the common plaintiff and defendants. To achieve defendant consolidation, we propose to implement what we label as the class defense device. We outline the novel features that will make the class defense both effective and fair - i.e., that will provide class attorneys with proper incentives, adequately protect the due process rights of absentee defendants, and keep to a minimum the omnipresent risk of collusion. Finally, we show that the class defense procedure affords would-be defendants greater protection than its alternatives. Specifically, we demonstrate that the class defense is a superior framework for resolving many disputes - such as lawsuits against credit card and cable companies - that currently take the form of class actions.

Thursday, November 18, 2004
Thursday Calendar

Lipshaw on Illusions of Intention Jeffrey M. Lipshaw (Indiana University School of Law - Indianapolis) has posted The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention on SSRN. Here is the abstract:
    Lawyers who negotiate and litigate over complex deals have an intuitive notion of the value of what they do in connection with the contract. The arguments around technical contract language often are a lawyers' game; in most cases, what is clear would have been clear on a handshake; and what is tightly negotiated bears only a random relationship to the areas of future dispute. If they happen to have drafted tight and clear language around the particular matter in dispute, it is as much luck as foresight. Thereafter complex agreements can have binding effect for years, but most of the relationship transpires without explicit reference to the contract. The problem to which much of contract interpretation scholarship is directed arises only when there is a significant disagreement not resolvable by non-legal means. If the contract is not sufficiently clear on the subject so the parties agree on the outcome, or a court has an easy case, how do courts go about filling gaps that the parties simply did not address, or providing meaning in the present circumstance to words that do not unambiguously resolve the problem? I want to suggest an answer I believe is intuitive to practitioners but may be provocative in the academy. The search for an illusive ex ante mutually intended meaning is a waste of time, as is worry about the ancillary problem of opportunism. The creation of the complex contract and its later interpretation in a difficult case of ambiguity are distinct events. If there is mutual intention at the time of a dispute over terms capable of a truly difficult case of disambiguation, it will be apparent at the time of the application of those terms to the relevant circumstance, but in that instance there will be no dispute and no jurisprudence. But, in that case, there is no going back to a mutually intended meaning as of the time the contract was made. Whether one acts opportunistically is a function of extra-legal morals and norms, and not controllable by language that turns out to be colorably disputable, if the parties choose to dispute it. The proper focus of courts, therefore, is a pragmatic resolution of disputes, and not a search for mutual intention.

Koelman on P2P Kamiel J. Koelman (Free University of Amsterdam - Computer/Law Institute) has posted P2P Music Distribution: a Burden or a Blessing? on SSRN. Here is the abstract:
    Traditions and habits shaped the music business. In the online environment, new players, some of them are peer-to-peer system providers, are entering the arena and struggling to obtain a position in the value chain. They may displace other actors who currently play a major role. The law - in particular copyright law - determines to a large extent whether they will succeed. In this paper, the question is addressed whether the law should support record companies in their efforts to remain the key intermediaries in the music industry. Additionally, different legislative approaches are discussed which might ensure that artists are rewarded for p2p distribution and that competition may evolve in the area of online music distribution.

Wednesday, November 17, 2004
Conference Announcement:
    CONFERENCE ON DIRECT DEMOCRACY Sponsored by the USC-Caltech Center for the Study of Law and Politics, Initiative and Referendum Institute, the Center for the Study of Democracy at UC-Irvine, and the Southern California Law Review January 14-15, 2005 Presenters: SATURDAY, JANUARY 15 (Papers to be published in the Southern California Law Review ) Clayton Gillette , New York University Law School Discussants: Jan Brueckner, University of Illinois, College of Business William Fischel, Dartmouth College, Department of Economics Richard Hasen , Loyola Law School "Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns" Discussants: John de Figueiredo, Princeton University, Woodrow Wilson School Bernard Grofman, University of California, Irvine, Political Science Dept. Mathew McCubbins , University of California, San Diego, Political Science Department Discussants: Elizabeth Garrett, University of Southern California Law School Daniel Rodriguez, University of San Diego Law School Nathaniel Persily , University of Pennsylvania Law School, and Melissa Cully Anderson , University of California, Berkeley, Political Science Department Discussants: Jonathan Katz, Caltech, Division of the Humanities and Social Science Nolan McCarty, Princeton University, Woodrow Wilson School Thomas Stratmann , George Mason University, Department of Economics Discussants: Bruce Cain, University of California, Berkeley, Political Science Department Daniel Ortiz, University of Virginia Law School

Rodriguez and Weingast on the Positive Political Theory of Legislative History Daniel B. Rodriguez and Barry R. Weingast (University of San Diego School of Law and Stanford University - The Hoover Institution on War, Revolution and Peace) have posted The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation (University of Pennsylvania Law Review, Vol. 151, 2003) on SSRN. Here is the abstract:
    A central issue in the contemporary debate about how statutes ought to be interpreted is the proper role of legislative history. The use of legislative history in statutory interpretation is often seen as problematic, in part because the legislative process, involving many different legislators with different points of view, provides contradictory information about a statute's meaning. Scholars of very different normative stripes - including textualists, purposivists, and those who eschew reliance on legislators' will altogether - raise questions about the historical reconstruction of legislative intent. Indeed, a common conclusion in the literature on statutory interpretation is that legislative history can be used to rationalize any point of view, leading some to conclude that it is useless to the enterprise of statutory interpretation. In this Article, we revisit this enduring conversation about the proper place, if any, of legislative history in statutory interpretation. Our perspective is distinct from traditional arguments in that it relies on a different underlying theoretical foundation and, significantly, a positive political theory of statute creation. This theory, in turn, provides both a theory of legislative rhetoric and of statutory interpretation. We apply our approach to reading legislative history to the passage and interpretation of the Civil Rights Act of 1964. Part I of this Article presents our positive political theory of legislative decision making, on which our characterization of coalitional strategies and statute making is based. In Part II, we analyze a set of critical events in the legislative history of the Civil Rights Act of 1964. We next consider, in Part III, how courts, in pursuing expansionary constructions in the early years following the Act's passage, relied on the legislative history produced by ardent supporters of the Act. Lastly, in Part IV, we suggest how our approach to interpreting legislative history helps shed light on the politics of civil rights, on theories of legislation and statutory interpretation, and on the patterns of modern American politics and social policy. Our objective, in the end, is to draw from our approach, and from a revisionist view of the Civil Rights Act, lessons of general applicability for the interpretation of the legislative history of statutes. This project, then, presages further analytical work on the puzzles of legislation and its interpretation.
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Hasen on the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns Richard L. Hasen (Loyola Law School (Los Angeles)) has posted Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns (Southern California Law Review, Vol. 78, No. 4, May 2005) on SSRN. Here is the abstract:
    Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns. These precedents emerged from the Supreme Court at a time of its greatest hostility to campaign finance regulation, when it viewed such laws as impermissibly impinging on the rights of free speech and association guaranteed by the First Amendment. These precedents are ripe for reexamination in light of the Supreme Court's new-found deference to campaign finance regulation, culminating in 2003's McConnell v. Federal Election Commission, a case upholding the major provisions of the Bipartisan Campaign Reform Act of 2002. This Article considers three potential ballot measure campaign finance regulations and their likelihood of passing constitutional muster under the more recent precedents: a law limiting contributions to ballot measure committees controlled by officeholders; a law limiting contributions to all ballot measure committees; and a law limiting expenditures in ballot measure campaigns by corporations and labor unions. Although all three proposed laws pretty clearly would have been struck down by the Supreme Court in earlier decades, they have a surprisingly good chance of passing muster today. One (obvious) purpose of this Article is to consider constitutional questions over ballot measure limits that courts inevitably will confront in coming years. But a second and equally important purpose is to use this analysis to consider the role that evidence plays in the Court's campaign finance jurisprudence. The Court's demand for evidence in campaign finance cases is shifting and imprecise. In fact, evidentiary analysis appears often to be a proxy for a determination on the merits made more on faith than evidence. In the final part of this Article, I consider the appropriate role that evidence should play in campaign finance cases. I argue that a more precise and transparent evidentiary inquiry into the connection between the goals of campaign finance laws and the means of achieving them will assist fair-minded judges in the inevitable constitutional balancing. I argue decidedly against the role that evidence currently plays in Supreme Court analysis of campaign finance cases as well as against Professor Pildes's alternative proposed "motive" test for judging campaign finance constitutional challenges.

Lee on Race & Deadly Force Cynthia Lee (The George Washington University Law School) has posted 'But I Thought He Had a Gun' - Race and Police Use of Deadly Force (Hastings Race and Poverty Law Journal, 2004) on SSRN. Here is the abstract:
    It is undisputed that Blacks are disproportionately represented among the victims of police shootings. In a comprehensive review of the literature on police use of deadly force, James Fyfe reports that every study that has examined this issue [has] found that blacks are represented disproportionately among those at the wrong end of police guns. Although Blacks represent approximately 13 percent of the population in the United States, in parts of the country they constitute 60 to 85 percent of the victims of police shootings. On average, Blacks are more than six times as likely as Whites to be shot by police, and in large cities are killed by police at least three times more often than Whites. Latinos (or Hispanics) are about twice as likely as Whites, but only half as likely as Blacks, to be shot and killed by police. There is a noticeable lack of data regarding police use of force against other non-Black minorities, such as Asian Americans, Arab Americans, South Asians and Native Americans. However, reports by Amnesty International and Human Rights Watch suggest that, in relation to their representation in society at large, these other minorities are also disproportionately on the receiving end of police force. While widespread consensus exists that racial minorities are disproportionately represented as victims of police shootings, the reason for this disproportion is hotly disputed. Most people who have an opinion on the subject fall within one of two camps which John Goldkamp, in his study of race and police shootings, calls Belief Perspective I and Belief Perspective II. Proponents of Belief Perspective I believe racism on the part of police officers and police departments results in one trigger finger for racial minorities and another for Whites. According to this view, police officers intentionally single out racial minorities for harsher treatment. Proponents of Belief Perspective II, in contrast, contend that race does not influence the average police officer's decision to use force. According to this perspective, Blacks and other non-Whites are disproportionately represented as victims of police shootings because they disproportionately commit armed robberies, carry firearms, and engage in behavior that police officers are likely to find threatening, such as resisting arrest. The problem with Goldkamp's two belief perspectives theory is that it frames the problem in all-or-nothing terms. Either police officers are bigots who intentionally target racial minorities (Belief Perspective I) or they are completely unbiased and color-blind (Belief Perspective II). The truth more likely lies somewhere between these two extremes. In this essay, I offer a third way to explain the disparate treatment respective segments of the population experience at the hands of police officers - an explanation that accommodates both the lived experiences of persons of color and the belief that police officers use force more often against persons of color because such individuals appear to be more threatening to the officer. Borrowing from Charles Lawrence's theory of unconscious racism, I suggest that racial stereotypes operate at a subconscious level to influence the police officer's decision to use deadly force. The police officer may not consciously decide to use deadly force because of the suspect's race, but the suspect's race nonetheless influences the officer. Racial stereotypes thus may alter the officer's perception of danger, threat, and resistance to authority. A simple question, Officer, why am I being stopped? may be perceived as behavior challenging the officer's authority when asked by someone who is Black. Police officers may also see danger more readily when dealing with a person of color. Just as racial and ethnic stereotypes influence private citizens' decisions to use force in self-defense, such stereotypes can also influence police officers' decisions to use force. I review recent social science studies which provide support for my theory and provide examples of how racial stereotypes can affect perception through actual cases. Finally, I suggest a race-switching jury instruction as a means to help de-bias juror decision making.