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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Monday, May 31, 2004
Archibald Cox Archibald Cox, the great scholar of labor and constitutional law, passed away Saturday at the age of 92. Here are some of the stories: Baltimore Sun, NPR (audio), Boston Globe, New York Times. I had Cox for two classes at Harvard Law School, Labor Law and First Amendment. I took Labor Law from Cox my first year as an elective, and Cox made a huge impression one me. My early teaching style drew heavily on Cox as a model. I especially enjoyed his very rigorous, intellectually demanding approach, which required a deep engagement by students who wanted to keep up with Cox. Cox was both a mentor (he wrote many letters of recommendation) and a personal hero. He lived a long life, full of accomplishment and goodness. He was a wonderful teacher and a formidable lawyer. He will be remembered, of course, for his role in Watergate and as Solicitor General of the United States, but I will always remember the kindly face, the old and many times mended suits, and the pick up truck that Cox drove to Harvard. He was a giant.

More on the ICANN Budget I found this quite interest. Europe sticks up two fingers at ICANN budget by Kieren McCarthy. Here is a taste:
    In a letter dated 26 May [pdf], and addressed to Paul Twomey, the head of ICANN, this powerful body has revealed its irritation with ICANN's attempt to become a global Internet institution. The three-page missive by CENTR chairman Paul Kane makes it plain that ccTLDs (country code top level domains) are unprepared to offer the additional finance that ICANN wants. Also the letter questions ICANN motives in seeking the budget hike. ICANN knew it was liable to anger the rest of the world's countries by asking them for more money, so it increased the amount it asked from them by less than a third - where most others will have to pay double. ICANN even accepted that ccTLDs would pay less in "ICANN-tax" - 20 cents on a domain rather than the 25 cents for everyone else. This approach has been dismissed out of hand.

Weekend Update On Saturday, the Legal Theory Bookworm recommended two classics by Jon Elster and the Download of the Week was Against Global Governance in the WTO by John O. McGinnis and Mark L. Movsesian. On Sunday, the Legal Theory Calendar previewed this weeks talks and conferences and the Legal Theory Lexicon topic was "The Internal Point of View."

Monday Calendar
    At Oxford's Moral Philosophy Seminar, Rae Langton (Edinburgh & soon to be MIT) presents Speaker's Freedom and Maker's Knowledge: A Millian Defence of Pornography?

McDonnell on the Death Penalty and Terrorism Thomas M. McDonnell (Pace University School of Law) has posted The Death Penalty - An Obstacle to the War against Terrorism? (Vanderbilt Journal of Transnational Law, Vol. 37, No. 353, 2004) on SSRN. Here is the abstract:
    September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. The magnitude of these crimes, the killing of over 3,000 innocent people, cries out for redress. Yet most countries in the world, including nearly all our closest allies, have abolished capital punishment. None of the four currently operating international criminal tribunals is authorized to give a death sentence. In addition, the advent of the suicide bomber turns the deterrence justification for the death penalty inside out. Might the death penalty help create martyrs rather than discourage similar attacks? Could our imposing the death penalty increase support in the Islamic world for al Qaeda and other extremist groups? Furthermore, to what extent as a matter of constitutional law and policy, should a secondary actor, one who did not kill, but who was a member of a terrorist conspiracy, be subject to the death penalty? This Article examines these questions in the context of the Zacarias Moussaoui case, the supposed twentieth hijacker, who, on September 11, 2001, had been held in custody for twenty-six days. Note: This article was published just before the Iraq prison scandal broke. The article, however, does discuss torture and the consequences of mistreating captured individuals suspected of committing acts of terrorism.

Juergens on Emotion and Community as Factors in Professional Excellence for Lawyers Ann Juergens (William Mitchell College of Law) has uploaded The Role of Emotion and Community in Lawyers' Professional Excellence (Clinical Law Review, Forthcoming). Here is the abstract:
    Originally delivered as a talk at an AALS clinical conference, the author urges teachers in the law clinic to feel and express emotion if they wish to teach students to value and work well with emotional information. She further argues that clinicians must tend their own roots in community and model this to students if they are to convey the importance of client community context to good outcomes.

Setiya on the Ethics of Efficiency Kieran Setiya has posted Is Efficiency a Vice?. Here is a taste:
    Questions about the ethics of efficiency have not been much discussed. Aristotle says nothing, or almost nothing, to defend his claims about it. (I assume that efficiency and cleverness are more or less the same.) But the issue is important, not only for its own sake, but for the central place that efficiency has in the philosophy of practical reason. What is often thought of as the dominant or orthodox view, the "neo-Humean" conception of practical reason as purely instrumental, identifies the excellence of the practicalintellect with means-end efficiency, broadly understood. I will argue that efficiency, as it is conceived by the instrumentalist – in particular, as being indifferent to the moral quality of one's ends – not only makes the nasty person worse, but is a defect of character, in general. It follows, I think, that the instrumentalist conception of practical reason is false, just as it stands; at the very least, it must be qualified or revised.

Dari-Mattiacci and De Geest on Judgement Proofness Giuseppe Dari-Mattiacci and Gerrit De Geest (George Mason University - School of Law and University of Utrecht - Utrecht School of Economics) have posted Judgment Proofness under Four Different Precaution Technologies (Journal of Institutional and Theoretical Economics, Forthcoming) on SSRN. Here is the abstract:
    This study shows that the effects of judgment proofness on precaution depend on whether the injurer can reduce the probability of the accident, the magnitude of the harm, or both. Different legal solutions to the problem are examined: punitive damages, average compensation, undercompensation, accurate compensation and negligence. We find that when the injurer can only reduce the probability of the accident, negligence with average compensation is the best solution, but negligence with perfectly compensatory damages is the desirable solution if the injurer can only or also affect the magnitude of the harm.

Krieger on Professionalism and Personal Satisfaction Lawrence S. Krieger (Florida State University College of Law) has posted The Inseparability of Professionalism and Personal Satisfaction (Clinical Law Review, Forthcoming). Here is the abstract:
    This paper addresses the failure of legal education to relate failing professionalism to the problems of depression, addiction, and career dissatisfaction among lawyers. I describe a classroom approach that teaches students about the psychological foundations of well-being, identifies common attorney practices and attitudes that undermine well-being, and further guides students toward meaning and satisfaction in their careers by helping them identify core values. The paper summarizes recent empirical research on law students and general populations as a foundation for the discussion.

Call for Papers: Genocide, Collective Guilt and Reparations
    CALL FOR PAPERS Special Issue January 2006 & Book in the Metaphilosophy Series in Philosophy Genocide, Collective Guilt and Reparations Special Editors: Claudia Card, University of Wisconsin, Madison & Armen T. Marsoobian, Southern Connecticut State University The twentieth century has been indelibly marked as the century of genocide. The first modern genocide of this century was that perpetrated by the Ottoman Turks against the Armenians, the last by the Hutus of Rwanda against the Tutsis. The term itself, “genocide,” was coined by Raphael Lemkin in 1944 to capture the scope of the Nazi policies of race extermination taking place across the face of Europe. We have now come to rethink our own history through the lens of genocide. Our national policy of slavery and the forcible removal of native Americans from their lands have been reexamined in light of what we now identify as genocide. The Blackwell philosophy journal Metaphilosophy will be publishing a special issue in January of 2006 on the themes of genocide, collective guilt and reparations. This issue will appear in book form in the late spring of 2006. The journal welcomes all submissions of a philosophical nature on these interrelated themes. Some questions that may be addressed include: * Are the current standards of what counts as genocide adequate? * What can moral reflection add to our understanding of genocide? * What is the nature and extent of collective guilt? * Is collective guilt a viable moral concept? * Are reparations for genocide and other large-scale acts of injustice morally mandatory? Who should pay? Who should collect? What good purpose do reparations serve? * Is reconciliation between genocide perpetrators and victims morally desirable? What would be the basis for such a reconciliation? * What roles do truth, memory and forgetting play in the process of reconciliation? Manuscripts in duplicate and not longer than 8,000 words should be sent to: The Editors, Special Issue on Genocide, Metaphilosophy Department of Philosophy Southern Connecticut State University New Haven, CT 06515 USA Telephone: (203) 392-6792 Fax: (203) 392-6338 E-mail: Author guidelines can be found on our website:

Call for Papers: Journal of Philosophy, Science & Law
    Welcome to the Journal of Philosophy, Science & Law. New in the latest edition of the journal: - A Book Review by Bill Shields from the Defense Nuclear Facilities Safety Board: Law and Nature by David Delaney - Yvette Pearson from Old Dominion University, Department of Philosophy: Playing Politics with Bioethics: Now That's Repugnant - Amanda Sarata, Fay Shamanski, Suzanne Goodwin, and Sarah Carr: The Secretary's Advisory Committee on Genetics, Health, and Society: Summary of the October 22-23, 2003 Meeting JPSL is a peer reviewed online journal. The journal is currently accepting submissions from a variety of different fields. It is a forum for scientists, lawyers, philosophers, policy analysts, historians, psychologists, sociologists, political scientists, students, and other interested scholars to express and exchange their views. Please forward this e-mail to any friends, colleagues, or students who would be interested in the journal. To receive notices about future articles and updates, please visit the journal's website at If you have any questions or comments about the journal, please send your inquiries to Jason Borenstein at

Sunday, May 30, 2004
Legal Theory Calendar
    Monday, May 21
      At Oxford's Moral Philosophy Seminar, Rae Langton (Edinburgh & soon to be MIT) presents Speaker's Freedom and Maker's Knowledge: A Millian Defence of Pornography?
    Tuesday, June 1 Wednesday, June 2
      At the Institute for Advanced Studies at the Hebrew University of Jerusalem, today and tomorrow, there is a conference on Democracy and Pluralism.
    Thursday, June 3
      At Florida State, Marie Reilly, University of South Carolina, presents The Bankruptcy Trustee's Power to Avoid Regulated Transfers After BFP v. Resolution Trust Corp.
    Friday, June 4
      At the University of London, today and tomorrow, Scanlon & the Contractualist Picture of Morality.

Legal Theory Lexicon: The Internal Point of View
    Introduction How can we look at a legal system? H.L.A. Hart famously deployed the distinction between external and internal perspectives on a legal system in his famous book, The Concept of Law. This post provides a very brief introduction to this distinction for law students (especially first-year law students) with an interest in legal theory.
    Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea is fairly clear. The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system.
    Here are some examples:
      --Doctrinal theories (e.g. a theory of the Commerce Clause of the United States Constitution) are usually stated from the internal point of view. This is the kind of theory that law students usually encounter early in their legal education.
      --Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this.
    The General Significance of the Internal Point of View The idea of the internal point of view plays a particular role in H.L.A. Hart's theory of law, but this post is about a related but distinct topic--the more general role that the internal/external distinction plays in legal theory. Newbie legal theorists need to know this distinction in order to avoid a very serious mistake in theory development. That mistake is to slide between the internal and external point of view. This mistake is actually quite easy to make. The theorist is working within the internal point of view--describing a particular legal doctrine from the point of view of lawyers and judges who work within the constraints of the doctrine. Then, the theorist slides into an explanation as to how the law came to be the way it is--describing the operation of political or economic pressures--and then slides back to the doctrinal level--drawing the conclusion that the law should be interpreted differently in light of the causal explanation. Arguments like this can be made to work, but unless the relationship between the causal explanation and the doctrinal consequence is explained carefully, this kind of move can easily involve a category mistake. Causal explanations (of how the law has come to be the way it is) are usually irrelevant from the internal point of view.
    Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?"
    If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study.
    Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view.
    The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions.
    Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories

Saturday, May 29, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends two classics by Jon Elster. The first is Sour Grapes : Studies in the Subversion of Rationality. Here is a description:
    Sour Grapes aims to subvert orthodox theories of rational choice through the study of forms of irrationality. Dr Elster begins with an analysis of the notation of rationality, to provide the background and terms for the subsequent discussions, which cover irrational behaviour, irrational desires and irrational belief. These essays continue and complement the arguments of Jon Elster's earlier book, Ulysses and the Sirens. That was published to wide acclaim, and Dr Elster shows the same versatility here in drawing on philosophy, political and social theory, decision-theory, economics and psychology, as well as history and literature.
And the second is Ulysses and the Sirens : Studies in Rationality and Irrationality. Elster's work had a profound influence on my intellectual development. If you haven't read these two classic books, I urge you to do so!

Download of the Week The Download of the Week is Against Global Governance in the WTO by John O. McGinnis and Mark L. Movsesian (Northwestern University - School of Law and Hofstra University). Here is the abstract:
    This essay argues that the World Trade Organization should not become a forum for global governance in non-trade matters. It responds to those, like Professor Andrew Guzman, who believe that the WTO's success suggests that the organization should be transformed into a forum for "cross-issue" regulatory bargains among member nations on issues, ranging from the environment to human rights, that are not easily resolved in existing international fora. We show that the current focus of the WTO - the reduction of barriers to international trade and the resulting promotion of private contracts - does not require the organization to face the agency problems inherent in regulatory structures. By contrast, global regulatory "deals," even more than domestic legislation, may serve as vehicles for interest-group transfers. We also explain how the WTO's rigorous enforcement mechanism might actually inhibit cross-issue bargaining among member nations. Substantive regulatory bargains would necessarily increase the discretion exercised by WTO dispute settlement tribunals. This increased discretion would entail a lack of predictability that could well be intolerable for WTO members, particularly developing countries. We end by arguing that the WTO can best contribute to the long-run improvement of regulatory standards by deepening its commitment to reducing barriers that prevent trade among the nations of the world.

SSRN Top Downloads SSRN is experiencing technical difficulties & their top download lists have not been updated since early. The overall list for all of SSRN is working however, and it includes three papers of interest to legal theorists:

Friday, May 28, 2004
Bainbridge on the Martial Virtues Stephen Bainbridge has an intriguing post on Iraq and the martial virtues:
    It is not just that we have become spoiled, it is that we as a people have largely lost the martial virtues. The United States, of course, historically has a far more ambivalent attitude towards those virtues than did, say, the Romans of the Republic or the hoplite Greeks.
Of course, the role of the martial virtues in ancient Athens was the subject of one of the great cultural and philosophical debates in the history of humankind. Here is a very short account of the historical context of the trial of Socrates:
    When Socrates was in his late '30's, the growing power of Athens, which had frightened other Greek states for years, led to the outbreak of the Peloponnesian War in 431, in which Athens (and its allies) faced Sparta (and its allies). During the decades-long war, Pericles died in the plague of Athens (429); fortunes of war varied until a truce was made in 421, but this was never very stable and in 415 Athens was persuaded by Alcibiades (a pupil of Socrates’) to send a huge force to Sicily in an attempt to take over some of the cities there. This expedition was destroyed in 413. Nevertheless Athens continued the war. In 411 an oligarchy ("rule by a few") was instituted in Athens in an attempt to secure financial support from Persia, but this did not work out and the democracy was soon restored. In 405 the last Athenian fleet was destroyed in the battle of Aegospotami by a Spartan commander, and the city was besieged and forced to surrender in 404. Sparta set up an oligarchy of Athenian nobles (among them Critias, a former associate of Socrates and a relative of Plato), which because of its brutality became known as the Thirty Tyrants. By 403 democracy was once again restored. It is in the context of Athens' defeat and turmoil after that these tragic events that, in 399 B.C., Socrates was tried by the Athenian government for corrupting the morals of Athenian youth and for religious heresies; it is now believed that his arrest stemmed in particular from his influence on Alcibiades and Critias, who were felt by the defeated populace as having betrayed Athens. He was convicted and, resisting all efforts to save his life, and refusing to accept exile for life from his beloved Athens, willingly drank the cup of poison hemlock given him.
Are the martial virtues true human excellences? How does do the martial virtues relate to the virtues of justice and beneficience? These are deep questions, but surely there are no easy answers. Read Bainbridge!

Denning and Ramsey on Executive Preemption in Foreign Affairs Brannon P. Denning and Michael D. Ramsey (Cumberland School of Law and University of San Diego School of Law) have posted American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
    In American Insurance Association v. Garamendi, the U.S. Supreme Court invalidated California's Holocaust Victim Insurance Relief Act (HVIRA), which required insurance companies doing business in California to disclose all policies they or their affiliates sold in Europe between 1920 and 1945. According to the Court, the state's law unconstitutionally interfered with the foreign affairs power of the national government. The decision was easily overlooked in a Term filled with landmark cases dealing with affirmative action and sexual privacy. What coverage the case did receive emphasized its federalism aspects, and excited little reaction because the result seemed intuitively appropriate given the federal government's interest in conducting foreign affairs. We argue in this paper, however, that Garamendi is more important - and problematic - when seen as a case about separation of powers. In particular, we argue that the decision expands presidential control over foreign affairs, not only at the expense of the states, but also and more critically at the expense of Congress and the Senate. This arises from the Court's invention of a novel constitutional power of executive preemption - that is, an independent ability of the President to override state laws that interfere with executive branch policies in foreign affairs. Until Garamendi, no one had thought that a mere executive branch policy, unsupported by the formal or even tacit approval of any other branch, could have the effect of preemptive law. As a result, one need not be a defender of foreign policy federalism, nor a critic of executive foreign affairs powers, to have grave reservations about the decision's implications for separation of powers, federalism and constitutional theory. It is uncontroversial that state laws and policies must give way to the foreign affairs objectives of the national government. The critical question, though, is how these overriding federal goals are developed and identified. We argue that the Garamendi decision has at least three separate and substantial ill-effects upon this process. First,executive preemption conveys to the President the power to decide which state laws affecting foreign affairs survive and which do not. This concentrates foreign affairs power in the President in a way not contemplated by the Constitution's Framers, who sought to separate executive power from legislative power. Second, Garamendi seemed to make executive agreements the functional equivalents of congressional statutes; this functional equivalency may hasten the decline of the treaty as a foreign policy-making tool, with a concomitant decline in the opportunities for Congress - the Senate, in particular - to shape foreign policy. Third, the decision implicated the relationship between the states and the federal government in foreign affairs, but did so in a way that provided essentially no guidance for the future. Part I of this Article discusses the factual setting of the Holocaust insurance claims that formed the background of the case. Part II outlines the constitutional law of federal-state relations in foreign affairs as it stood before the Garamendi decision. Part III describes the Supreme Court's decision, and points out its discontinuity with prior decisions. In Part IV we turn to the troubling structural implications of Garamendi, which we regard as occurring primarily in the field of separation of powers. We conclude that the Court ended up far from the text, structure and history of the Constitution. In Part V we address the decision's implications for federalism, particular the dangers of concentrating preemptive power in the executive branch. Part VI relates the Garamendi case to the wider theoretical debates of modern foreign affairs law and constitutional interpretation. In contrast to other federalism and separation of powers cases, the Garamendi Court paid little attention to text or structure in analyzing the constitutional questions presented. More surprising, perhaps, is the Court’s complete lack of interest in what light history might shed on the foreign affairs issues before it. But neither is Garamendi an exercise in common law doctrinal evolution, because it owes essentially nothing to prior cases or practice, except as rhetorical cover. Garamendi's near-exclusive attention to loose interpretations of prior case law and its lack of sensitivity to text, history, and structure, suggest to us a danger in common law constitutional interpretation as a preferred approach to constitutional interpretation and adjudication in foreign affairs controversies.
Download it while its hot!

Bainbridge on LLC Veil Piercing Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Abolishing LLC Veil Piercing on SSRN. Here is the abstract:
    Courts are now routinely applying the corporate law doctrine of veil piercing to limited liability companies. This extension of a seriously flawed doctrine into a new arena is not required by statute and is insupportable as a matter of policy. The standards by which veil piercing is effected are vague, leaving judges great discretion. The result has been uncertainty and lack of predictability, increasing transaction costs for small businesses. At the same time, however, there is no evidence that veil piercing has been rigorously applied to effect socially beneficial policy outcomes. Judges typically seem to be concerned more with the facts and equities of the specific case at bar than with the implications of personal shareholder liability for society at large. A standard academic move treats veil piercing as a safety valve allowing courts to address cases in which the externalities associated with limited liability seem excessive. In doing so, veil piercing is called upon to achieve such lofty goals as leading LLC members to optimally internalize risk, while not deterring capital formation and economic growth, while promoting populist notions of economic democracy. The task is untenable. Veil piercing is rare, unprincipled, and arbitrary. Abolishing veil piercing would refocus judicial analysis on the appropriate question - did the defendant - LLC member do anything for which he or she should be held directly liable?

Revesz & Stavins on Environmental Law & Policy Richard L. Revesz and Robert N. Stavins (New York University School of Law and Harvard University - John F. Kennedy School of Government) have posted Environmental Law and Policy on SSRN. Here is the abstract:
    This paper, which is a preliminary draft of a chapter for the forthcoming Handbook of Law and Economics (edited by A. Mitchell Polinsky and Steven Shavell, and to be published by North-Holland/Elsevier Science), provides an economic perspective of environmental law and policy with regard to both normative and positive dimensions. It begins with an examination of the central problem in environmental regulation: the tendency of pollution generators in an unconstrained market economy to externalize some of the costs of their production, leading to an inefficiently large amount of pollution. We examine the ends of environmental policy, that is, the setting of goals and targets, beginning with normative issues, notably the Kaldor-Hicks criterion and the related method of assessment known as benefit-cost analysis. We examine this analytical method in detail, including its theoretical foundations and empirical methods of estimation of compliance costs and environmental benefits. We include a review of critiques of benefit-cost analysis, briefly examine alternative approaches to analyzing the goals of environmental policies, and survey the efforts of the Federal governmental to employ these analytical methods. The paper also examines in detail the means of environmental policy, that is, the choice of specific policy instruments, beginning with an examination of potential criteria for assessing alternative instruments, with particular focus on cost-effectiveness. The theoretical foundations and experiential highlights of individual instruments are reviewed, including conventional, command-and-control mechanisms, economic incentive or market-based instruments, and liability rules. In the economic-incentive category, we consider pollution charges, tradeable permit systems, market friction reductions, and government subsidy reductions. Three cross-cutting issues receive attention: implications of uncertainty for instrument choice; effects of instrument choice on technological change; and distributional considerations. We identify a set of normative lessons in regard to design, implementation, and the identification of new applications, and we examine positive issues, including three phenomena: the historical dominance of command-and-control; the prevalence in new proposals of tradeable permits allocated without charge; and the relatively recent increase in attention given to market-based instruments. Finally, the paper turns to the question of how environmental responsibility is and should be allocated among the various levels of government. We provide a positive review of the responsibilities of Federal, state, and local levels of government in the environmental realm, plus a normative assessment of this allocation of regulatory responsibility. We focus on three arguments that have been made for Federal environmental regulation: competition among political jurisdictions and the race to the bottom; transboundary environmental problems; and public choice and systematic bias.

Anderson on Intuitions in Moral Theory James Anderson (University of San Diego) has uploaded A Critical Role for Intuitions in Moral Theory. Here is the abstract:
    The justificatory role of intuitions in moral reasoning has long been a source of controversy. The problems of intuitionism and empty formalism can be avoided by understanding moral intuitions as nonreflective, but justifiable, moral judgments operating in a model of reflective equilibrium that brings to light the rational structure underlying all moral judgments. One objection to this says that requiring only coherence between intuitions and principles is tantamount to subjectivism. A defense is found in an analogy with the linguistic theory of universal grammar, suggesting an innate capacity to learn how to recognize and make moral judgments. As with language, socially-structured environmental stimulus will determine which moral intuitions we possess. The feminist critique of traditional moral theory can be interpreted in this light: the central values of traditional theory enshrine the moral intuitions possessed by those who were socialized for life outside the domestic sphere.

Setiya on Hume on Practical Reason Kieran Setiya has uploaded Hume on Practical Reason (forthcoming in Philosophical Perspectives). Here is a taste:
    It is true that Hume is not an instrumentalist. And there is a sense in which he is a sceptic about practical reason. But the sense is more interesting, and more subtle, than the crudely sceptical reading allows. There are ways of interpreting "practical reason" on which Hume will argue that there is no such thing. But his claim is less radical than it seems. For what he really rejects is a rationalist conception of practical reason. As I will try to show, he does not reject the idea of practical reason altogether. Matters are complicated by the fact that Hume himself is unwilling to speak of "reason" except when a rationalist interpretation is in play, or when he is "speaking with the vulgar" in Book Three. But part of my claim is that we have to be careful in translating from the Humean idiom to our own. Hume's picture of practical reason is not a picture of what he would call "reason" (not even in the "vulgar" sense), but it is a picture of practical reason nonetheless.

Basinger on Religious Pluralism David Basinger's article entitled Religious Diversity (Pluralism) is now available on the Stanford Encyclopedia of Philosophy. Here is a taste:
    With respect to many, if not most issues, there exist significant differences of opinion among individuals who seem to be equally knowledgeable and sincere. Individuals who apparently have access to the same information and are equally interested in the truth affirm incompatible perspectives on, for instance, significant social, political, and economic issues. Such diversity of opinion, though, is nowhere more evident than in the area of religious thought. On almost every religious issue, honest, knowledgeable people hold significantly diverse, often incompatible beliefs. Religious diversity of this sort can fruitfully be explored in many ways — for instance, from psychological, anthropological, or historical perspectives. The current discussion, however, will concern itself primarily with those key issues surrounding religious diversity with which philosophers, especially analytic philosophers of religion, are most concerned at present. Specifically, our discussion will focus primarily on the following questions: How pervasive is religious diversity? Does the reality of this diversity require a response? Can a person who acknowledges religious diversity remain justified in claiming just one perspective to be correct? If so, is it morally justifiable to attempt to convert others to a different perspective? Can it justifiably be claimed that only one religion offers a path into the eternal presence of God? The answers to such questions are not simply academic. They increasingly have great impact on how we treat others, both personally and corporately.

Faguet on Altruism and Empire Jean-Paul Faguet (London School of Economics - Development Studies Institute & Centre for Economic Performance) has posted Building Democracy in Quicksand: Altruism, Empire and the United States (Challenge, Vol. 47, No. 3, pp. 73-93, June 2004) on SSRN. Here is the abstract:
    The new era of US empire commenced with decisive military victories in Afghanistan and Iraq. But the aftermath of war has proved surprisingly difficult and violent. Explanations of the US's failure to win the peace have largely overlooked the inherent difficulty of planting democracy in so inhospitable a social environment as Iraq's. This paper examines the prospects for US empire, focusing on the problem of nation building, and in particular the role of a well-functioning civil society in making democracy work.

Mullin & Malani on Joint & Several Liabily's Effect on Bankruptcy Charles Mullin and Anup Malani (Vanderbilt University - Department of Economics and University of Virginia - School of Law) have posted The Effect of Joint and Several Liability on the Bankruptcy Rate of Defendants: Evidence from Asbestos Litigation. Here is the abstract:
    If two defendants share a joint and several liability and the first becomes insolvent, his unpaid liabilities are reallocated to the second. While the second defendant's assets may cover its share of liability, they may not cover the first defendant's share. Thus, the one defendant's insolvency may trigger the other's. We quantify this externality in the context of asbestos-related torts. We choose this example because 61 companies with major asbestos liabilities have gone bankrupt since 1982 and nearly 8,000 other companies have been named in asbestos suits. Using data from 10-K forms and asbestos trials, we estimate that payments on asbestos claims grew 5 - 10 percent annually - over 150 percent total - during 1990 - 2002 due to the bankruptcy of jointly liable defendants. We discuss the implications for the priority of tort claimants in bankruptcy and piecemeal tort litigation as a compensation mechanism for mass torts.

Thursday, May 27, 2004
Internet Governance Department If you haven't already done so, take a look at ICANN grows up at last by Kieren McCarthy in The Register. Here is a taste:
    What has really prevented out-and-out fury, however, is the budget document. It is, simply, beautifully constructed. ICANN is under new management and there has been a sea-change in its mindset. Gone is the shameless arrogance and empire building of the previous incumbents. Under the new head, Paul Twomey, we have got away from petulant IT types and entered the realm of diplomats and government types. Twomey is creating an institution. And he has three years to do it. If ICANN isn't solid and respected and entrenched by then, the whole organisation could be at risk. The budget document makes this clear to anyone who understands what is going on and it does so with refreshing clarity. The ICANN of old left a trail of vague legal-speak and a few bad-tempered comments before telling you how much it had decided to spend this year. The new approach is forward-looking, positive, honest, coherent, clear. It's no wonder people like it. The problem is that it contains little real justification for the vast increase in resources it has decided to award itself.

Rappaport on O'Connor Over at The Right Coast, Mike Rappaport has a very nice post on Justice O'Connor's view of federalism. Here is a taste:
    Recently, the Supreme Court decided another important federalism case, Tennessee v. Lane. In Lane, the Supreme Court held that Title II of the ADA (that is, the Americans with Disabilities Act) was authorized by section 5 of the 14th Amendment. By contrast, in a 2001 case, Board of Trustees of the University of Alabama v. Garrett, the Supreme Court had held that Title I of the ADA was not authorized by the 14th Amendment. So the 14th Amendment authorizes Title II but not Title I. Why? Because Justice O'Connor says so. But why does Justice O'Connor say so? Always a good question, but this time, at least, I think there is answer. In my view, Justice O'Connor is employing the following federalism principle: The Constitution should not be interpreted to completely eviscerate federalism limitations, but short of that Congress can do pretty much what it wants.
Surf on over to read the rest!

Co on Section 337 Patent Cases Catherine Y. Co (University of Nebraska at Omaha - Department of Economics) has posted How Valuable are the Patents Behind Section 337 Cases? (The World Economy, Vol. 27, No. 4, pp. 525-539, April 2004) on SSRN. Here is the abstract:
    A US patent protects the owner of the intellectual property from imitators producing in the US and foreign imitators selling in the US market. There are two venues for filing infringement cases against international infringement of US patents, with the International Trade Commission (ITC) using Section 337 of the Tariff Act of 1930 or with federal district courts. Three indicators of patent value suggest that patents litigated under Section 337 are on average more valuable; however, their values tend to be more variable. The latter suggests that some firms may be using Section 337 not for protection against international infringement of US patents but for protection against imports.

Baicker and Jacobson on Forfeiture Katherine Baicker and Mireille Jacobson (Dartmouth College - Department of Economics and University of California, Irvine - Department of Planning, Policy and Design) have posted Finders Keepers: Forfeiture Laws, Policing Incentives, and Local Budgets on SSRN. Here is the abstract:
    In order to encourage anti-drug policing, both the federal government and many state governments have enacted laws that allow police agencies to keep a substantial fraction of assets that they seize in drug arrests. By adjusting their own allocations to police budgets, however, county governments can effectively undermine these incentives, capturing the additional resources for other uses. We use a rich new data set on police seizures and county spending to explore the reactions of both local governments and police to the complex incentives generated by these laws. We find that local governments do indeed offset the seizures that police make by reducing their other allocations to policing, undermining the statutory incentive created by the laws. They are more likely to do so in times of fiscal distress. Police, in turn, respond to the real net incentives for seizures, once local offsets are taken into account, not simply the incentives set out in statute. When de facto policies allow police to keep the assets they seize, they seize more. These findings have strong implications for the effectiveness of using financial incentives to solve agency problems in the provision of public goods in a federal system: agents respond to incentives, but so do intervening governments, and the effectiveness of federal and state laws in influencing agents' behavior is limited by the ability of local governments to divert funds to other uses.

Wednesday, May 26, 2004
Conference Announcement: Democracy & Pluralism
    The Institute for Advanced Studies at the Hebrew University of Jerusalem DEMOCRACY AND PLURALISM Conference June 2 - 3, 2004 Wednesday, June 2nd 09:30-11:00 David Heyd (The Hebrew University) Is Toleration a Political Virtue? Commentator: George Fletcher (Columbia University) 11:00-11:30 coffee break 11:30-13:00 Stephen Macedo (Princeton University) Diversity, Reciprocity and Justice Commentator: Jeff Spinner-Halev (University of Nebraska) 13:00-14:30 lunch at Beit Belgia 14:30-16:00 Andrei Marmor (University of Southern California) Democracy and Authority Commentator: David Estlund (Brown University) 16:00-16:30 coffee break 16:30-18:00 Lior Barshack (Inter-Disciplinary Center, Herzliya) Constituent Power as Body: Outline of a Constitutional Theology Commentator: Therese Bjorkholm (Uppsala University Law School) 18:00-19:30 Elizabeth Garrett (University of Southern California) Conditions for Framework Legislation Commentator: Omri Yadlin (Tel Aviv University) Thursday June 3rd 09:30-11:00 Chaim Gans (Tel Aviv University) Jewish State Commentator: Yossi David (The Hebrew University) 11:00-11:30 coffee break 11:30-13:00 Nahshon Perez (The Hebrew University) Universal Justice, Local Norms, the (Sometimes) Pseudo Debate of Human Rights Violations Within Minority Cultures Commentator: Yael Ofarim (Gilo Center, The Hebrew University) 13:00-14:30 lunch at Beit Belgia 14:30-16:00 Jeff Spinner Halev (University of Nebraska) Hinduism Christianity and Liberal Toleration Commentator: Charles Blattberg (Université de Montréal,) 16:00-16:30 coffee break 16:30-18:00 Rajeev Bhargava (Delhi University) Muslim Personal Law and the Majority-Minority Syndrome Commentator: Ruth Zafran (IDC)

Eric Muller on Legal Advice & Interrogation in Iraq I am impressed by the Eric Muller's very measured post, here.

Wednesday Calendar

Layers Principle Hits the Stands The Layers Principle: Internet Architecture and the Law by Minn Chung and myself is now available in print (79 Notre Dame L. Rev. 815 (2004)) and on Westlaw. For some commentary, you can surf here, here, and especially from Ed Felten here. You can listen to the audio of a talk I gave at Stanford here.

Ellerman on Property Theory David Ellerman (University of California, Riverside - Department of Economics) has posted Introduction to Property Theory on SSRN. Here is the abstract:
    A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand function of the market, the market mechanism of appropriation. Does this mechanism satisfy an appropriate normative principle? The normative principle of assigning or imputing legal responsibility according to de facto responsibility is developed on individualist-subjectivist principles in what is essentially a modern explication of the Lockean theory. Then the fundamental theorem of the property mechanism is proven which shows that if Hume's conditions (no transfers without consent and all contracts fulfilled) are satisfied, then the market automatically satisfies the Lockean responsibility principle, i.e., Hume implies Locke. As a major application, the results in their contrapositive form, Not Locke implies Not Hume, are applied to a market economy based on the employment contract. It is shown the production based on the employment contract violates the Lockean principle (all who work in an enterprise are de facto responsible for the positive and negative results) and thus Hume's conditions must also be violated in the marketplace (in spite of the labor contract, de facto responsible human action cannot be transferred from one person to another as is readily recognized when and employer and employee together commit a crime).

Tuesday, May 25, 2004
Justifications and Excuses at Rutgers At the Rutgers-Camden Institute for Law and Philosophy, today and tomorrow, there is a conference entitled Justifications and Excuses: Legal and Philosophical Perpsectives. Here are the papers with links:

Hatch on the Compromise The Washington Times has a story titled Bush deal for court nominees irks conservatives, but real meat of the story is actually a quote from Senator Hatch:
    Senate Judiciary Committee Chairman Orrin G. Hatch, Utah Republican, dismissed the idea that Republicans should just try ramming judges through without attempts at negotiation.
    "Those kinds of arguments are beneath the dignity of comment," he said. "We were not going to get any confirmed.
    "The president was not going to make any more recess appointments anyway," Mr. Hatch said. "It was an absolute 'gimme.'"
Hatch is correct of course. The so-called compromise was really no compromise at all, as I argued in a post titled Understanding the Compromise of May 18, 2004

Tuesday Calendar

Wu on Copyright's Communications Policy The hot download on SSRN is Tim Wu's Copyright's Communications Policy. Here is the abstract:
    This paper suggest that the main challenges for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy. Since its inception copyright has set important baselines upon which publishers and their modern equivalents As the pace of technological change accelerates, copyright's role in setting the conditions for competition is quickly becoming more important, even challenging for primacy the significance of copyright's encouragement of authorship. The study of copyright's communications policy has both a descriptive and a normative payoff. First, it helps us understand both the existing copyright code and the history of 20th century copyright. Second, it helps us ask whether copyright is in line with other important goals of national communications policy.

Fairman on Rule 9(b) Well, this is a topic that I find fascinating! Christopher M. Fairman (Ohio State University - Michael E. Moritz College of Law) has posted An Invitation to the Rulemakers - Strike Rule 9(b) (UC Davis Law Review, Vol. 38, 2004) on SSRN. Here is the abstract:
    Pleading is the gateway into the federal courts. Consistent with the goal of merits determination, the Federal Rules of Civil Procedure typically impose only a minimal pleading requirement called "notice pleading." An elevated pleading burden requiring greater factual particularity - heightened pleading - is required only for cases involving fraud or mistake. Despite the limited situations requiring heightened pleading under the Federal Rules, federal courts routinely apply heightened pleading burdens to a myriad of cases. This Essay takes aim at the Federal Rule that spawns the widespread use of heightened pleading - Rule 9(b). Finding scant justification for Rule 9(b) even in the fraud context, this Essay makes the case for eliminating heightened pleading for fraud cases by amending the Federal Rules of Civil Procedure. The reasons are simple. Federal Rule of Civil Procedure 9(b) is more the product of historical accident than anything else. The current rationales for its retention are mere rationalizations that create divergent and unworkable standards in the fraud arena. Unfortunately, Rule 9(b) is not content to stay put. Federal courts routinely apply and extend Rule 9(b) heightened pleading into other substantive areas they deem "fraud-like." This ad hoc judicial rulemaking is in the face of repeated Supreme Court direction to stop. By striking Rule 9(b), heightened pleading can be contained: a rule-based solution to a rule-created problem.

Overton on Judicial Review of Campaign Reform Spencer A. Overton (George Washington University - Law School) has posted Restraint and Responsibility: Judicial Review of Campaign Reform (Washington & Lee Law Review, Vol. 61, p. 663, May 2004). Here is the abstract:
    The First Amendment doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions about the appropriate role of money in campaigns. As illustrated by the conflicting opinions of different U.S. Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth tests provide inadequate guidance and compel judges to rely on their own political assumptions in balancing the need for regulation against the right of free speech. Judges skeptical of campaign reform err on the side of protecting speech, while judges supportive of reform lean toward tolerating regulations said to prevent corruption. To resolve the conflict and fill the void in current doctrine, this Article identifies four democratic values that judges should balance in deciding whether campaign finance laws restrict too much protected speech: democratic deliberation, widespread participation, individual autonomy, and electoral competition. While political assumptions may influence judicial balancing of these values, this new approach is a better compromise of sensitivity to context, consideration of substantive democratic values, and judicial guidance than the alternatives. Honest exchange about how courts should balance relevant values in particular contexts, rather than a glossing over of tough issues with abstract rhetoric and mechanical categories, will allow for a more coherent doctrine.

Gan, Williams and Wiseman Model Hate Crimes Legislation Li Gan , Roberton C. Williams III, Thomas Wiseman (University of Texas at Austin - Department of Economics , Stanford University - Stanford Institute for Economic Policy Research , University of Texas at Austin - Department of Economics and University of Texas at Austin - Department of Economics) have posted A Simple Model of Optimal Hate Crime Legislation on SSRN. Here is the abstract:
    We present a simple model of the effects of hate crime legislation. It shows that even if the direct harm to victims of hate crime is the same as for other crimes, because of other differences in the effects it may still be optimal to exert more law-enforcement effort to deter or prevent hate crime. These differences also have previously unrecognized effects on the optimal level of effort by potential hate crime victims to avoid being victimized, thus affecting the efficiency of government policies that encourage or discourage such effort. We discuss the implications of these results for optimal hate-crime policy, as well as for policy toward other similar crimes, such as terrorism.

Nzelibe on the Uniqueness of Foreign Affairs Jide Nzelibe (University of Chicago - Law School) has posted The Uniqueness of Foreign Affairs (Iowa Law Review, Vol. 89, No. 942, March 2004) on SSRN. Here is the abstract:
    This Article attempts to explain and justify the exceptional treatment that courts accord foreign affairs issues under the political question doctrine. For the most part, academic commentators have attacked the political question doctrine, arguing that the doctrine is both incoherent and inconsistent with the Marbury tradition of judicial review. Challenging the conventional academic wisdom, this Article contends that institutional competence considerations continue to warrant broad application of the doctrine in the foreign affairs context. More specifically, this Article argues that the power-based nature of most international policy decisions continues to constrain the power of the courts to adjudicate on foreign affairs controversies. Nonetheless, the mere involvement of foreign affairs in a legal dispute should not automatically preclude judicial review. Rather, this Article suggests an alternative vision of the judicial function in foreign affairs, which I call the balance of institutional competencies approach. This approach envisions a spectrum of judicial authority in foreign affairs, which depends on whether the underlying foreign affairs controversy implicates individual rights or domestic property interests, or whether Congress has legislated on the particular foreign affairs issue in question. When viewed as a device for the proper allocation of institutional competencies in foreign affairs disputes, this Article contends that the political question doctrine is both doctrinally coherent and, in the proper circumstances, normatively attractive.

Moreau on the Wrongs on Unequal Treatment Sophia Reibetanz Moreau (University of Toronto - Faculty of Law) has posted The Wrongs of Unequal Treatment (University of Toronto Law Journal, Forthcoming) on SSRN. Here is the abstract:
    When exactly is it unfair for a government to fail to treat citizens as equals? And what is the nature of the wrong done to individuals who are not treated as equals? The main aim of this paper is to argue that there are a number of quite distinct ways in which individuals may be wronged by unequal treatment, and that these different wrongs are not reducible to a single unifying explanation. I then try to show that the approach to violations of equality rights in the Canadian Charter of Rights and Freedoms laid down by the Supreme Court of Canada in Law v. Canada fails to separate out these different wrongs, and I argue that this has rendered the test both conceptually problematic and less able to recognize as discriminatory certain instances in which the claimant has indeed suffered from unfair treatment. In conclusion, the paper explores several ways in which the Law approach might be modified, in order to rectify these problems.

Hylton on Calabresi and the Intellectual History of Law and Economics Keith N. Hylton (Boston University School of Law) has posted Calabresi and the Intellectual History of Law and Economics on SSRN. Here is the abstract:
    This essay traces the vein of thought represented by Calabresi's The Costs of Accidents, both backward in time to examine its sources, and forward to its impact on current scholarship. I focus on three broad topics: positive versus normative law and economics, positivist versus anti-positivist thinking in law, and the assumption of rationality in law and economics.

Issacharoff on Democracy in Fractured Societies Samuel Issacharoff (Columbia Law School) has posted Constitutionalizing Democracy in Fractured Societies (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
    This article explores the tension between constitutionalism and democratic majoritarianism in the context of emerging democracies characterized by deep ethnic or religious fractures. For many years, the political science orthodoxy prescribed a strategy of "consociationalism" that settled power-sharing arrangements as a bargain between political elites and rendered politics to a perpetual recognition of the primacy of ethnic or religious divides. The history of consociationalist experiments, in countries such as Lebanon and Cyprus, has been one of numerous unfortunate descents into communal warfare. Since the fall of the Soviet Union, there has been a dramatic new round of nation-building in formerly repressive and fractured societies. Rather than turn to consociationalism to constrain the risk of unbridled majoritarianism and the threat of communal war, these countries have by and large employed a form of strong constitutional authority, typically enforced by an independent constitutional court, to prevent democratic politics from consuming itself. This article contrasts the experience of two such countries: South Africa and Bosnia. South Africa presents an example of a judicially-enforced constitutional order that allowed a remarkably stable multiracial society to emerge from the fall of apartheid. Bosnia, by contrast, came into the era of independence through a structured political power-sharing among the various ethnic groups, enforced through the Dayton peace accords. In both cases, the national constitutional courts played a critical role in attempting to secure the transition to stable democratic governance. In the case of South Africa, that was a role directly contemplated by the transitional accords. In the case of Bosnia, however, the Bosnian Constitutional Court was compelled to unwind some of the consociationalist strands of Dayton in order to prevent a renewal of ethnic factional war.

Kang on Deliberative Democracy in the Supreme Court John M. Kang (Western Kentucky University - Department of Political Science) has posted The Irrelevance of Sincerity: Deliberative Democracy in the Supreme Court (Saint Louis University Law Journal, Vol. 48, Issue 2, 2004) on SSRN. Here is the abstract:
    Insincerity is regarded as a roguish intruder in democratic discourse where people are expected to speak their minds freely yet with a measure of sincere concern for their fellow citizens. This general cultural response has found formal articulation in the prominent scholarly movement which in recent years has assembled under the heading of "deliberative democracy". Its advocates - who include a diverse mix of some of the most prominent law professors, philosophers and political theorists - argue that people should frame their justifications in terms of the common good or the public generally, and that such justifications, at least sometimes, should be sincere. Against such insistence on sincerity, I argue that sincerity is both logically and practically irrelevant in contributing to a meaningful realm of free speech that can help generate diverse options for an audience to consider in its search for provisional political "truths".

Monday, May 24, 2004
Weekend Update On Saturday, the regular features included the SSRN Top Downloads, the Download of the Week (a great new paper by Eugene Volokh), and the Legal Theory Bookworm (recommending Animal Rights: Current Debates and New Directions, edited by Cass Sunstein & Martha Nussbaum). On Sunday, the Legal Theory Calendar previewed the week's talks and conferences and the Legal Theory Lexicon entry was on "Overlapping Consensus and Incompletely Theorized Agreements."

Monday Calendar
    At London's Aristotelian Society, Rowland Stout presents Internalising Practical Reasons.
    At Oxford's Moral Philosophy Seminar, Jay Wallace (Berkley) presents Moral Reasons and Moral Motivation. Some Reflections on Rationalism in Ethics.

Kysar on Climate Change and Rationality Douglas A. Kysar (Cornell University - School of Law) has posted Climate Change, Cultural Transformation, and Comprehensive Rationality (Boston College Environmental Affairs Law Review, Vol. 31, No. 3, 2004) on SSRN. Here is the abstract:
    Economic cost-benefit analysis aims to evaluate regulatory proposals by identifying, monetizing, and comparing the proposals' expected positive and negative consequences. The methodology has been received critically in the area of environmental, health, and safety regulation, where scientific uncertainty, difficulties of valuation, and uncommonly long time horizons are said to render cost-benefit analysis especially problematic. This Essay reviews such criticisms through a discussion of the use cost-benefit analysis in the particular context of climate change policymaking. In this context, generic criticisms of cost-benefit analysis in the environmental, health, and safety area become even more pronounced, raising significant doubt about the methodology's philosophical and practical appropriateness as a guide for climate change policymaking.

McGinnis & Movsesian on the WTO John O. McGinnis and Mark L. Movsesian (Northwestern University - School of Law and Hofstra University) have posted Against Global Governance in the WTO (Harvard International Law Journal, Vol. 45) on SSRN. Here is the abstract:
    This essay argues that the World Trade Organization should not become a forum for global governance in non-trade matters. It responds to those, like Professor Andrew Guzman, who believe that the WTO's success suggests that the organization should be transformed into a forum for "cross-issue" regulatory bargains among member nations on issues, ranging from the environment to human rights, that are not easily resolved in existing international fora. We show that the current focus of the WTO - the reduction of barriers to international trade and the resulting promotion of private contracts - does not require the organization to face the agency problems inherent in regulatory structures. By contrast, global regulatory "deals," even more than domestic legislation, may serve as vehicles for interest-group transfers. We also explain how the WTO's rigorous enforcement mechanism might actually inhibit cross-issue bargaining among member nations. Substantive regulatory bargains would necessarily increase the discretion exercised by WTO dispute settlement tribunals. This increased discretion would entail a lack of predictability that could well be intolerable for WTO members, particularly developing countries. We end by arguing that the WTO can best contribute to the long-run improvement of regulatory standards by deepening its commitment to reducing barriers that prevent trade among the nations of the world.

Stavins on Kyoto Robert N. Stavins (Harvard University - John F. Kennedy School of Government) has posted Can an Effective Global Climate Treaty be Based on Sound Science, Rational Economics, and Pragmatic Politics? on SSRN. Here is the abstract:
    The Kyoto Protocol (1997) to the United Nations Framework Convention on Climate Change (1992) may come into force without U.S. participation, but its effects on climate change will be virtually non-existent. At the same time, the economic and scientific consensus points to the need for a credible international approach. A reasonable starting point is the Framework Convention on Climate Change (FCCC), which was signed by 161 nations and ratified by 50, including the United States, and entered into force in 1994. In this paper, I remain agnostic on the question of the Kyoto Protocol's viability. Some analysts see the agreement as deeply flawed, while others see it as an acceptable first step. But virtually everyone agrees that the Protocol is not sufficient to the overall challenge, and that further, subsequent steps will be required. This is my starting point for proposing a three-part policy architecture: first, all nations would be involved through the use of economic trigger mechanisms, plus growth targets; second, long-term targets would be required - in the short-term, firm, but moderate targets, and in the long-term, flexible, but much more stringent targets; and third, market-based policy instruments would be part of the package - emissions trading, carbon taxes, or hybrids of the two. This overall approach can be made to be scientifically sound, economically rational, and politically pragmatic.

Sunday, May 23, 2004
Legal Theory Calendar

Legal Theory Lexicon: Overlapping Consensus & Incompletely Theorized Agreements
    Introduction As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects--in procedure, criminal law, torts, property, and constitutional law--frequently seem to turn on the really big questions of ethics and political theory. On the one hand, the proponents of inviolate individual rights appeal to deontological premises in moral theory or liberal (or libertarian) ideas in political philosophy. On the other hand, the proponents of balancing argue from premises rooted in utilitarianism or welfarism (the economic version of utilitarian moral philosophy).
    For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates between deontology and consequentialism or between libertarians and communitarians are going to be decisively resolved any time soon.
    And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions.
    The basic idea is simple. We cannot agree on the deep questions, so go shallow. Find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, head for the shallow end!
    Deep and Shallow I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy.
    Overlapping Consensus John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness.
    This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible.
    Incompletely Theorized Agreements Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:
      Incompletely theorized agreements play a pervasive role in law and society. It is rare for a person, and especially for a group, to theorize any subject completely -- that is, to accept both a highly abstract theory and a series of steps that relate the theory to a concrete conclusion. In fact, people often reach incompletely theorized agreements on a general principle. Such agreements are incompletely theorized in the sense that people who accept the principle need not agree on what it entails in particular cases. People know that murder is wrong, but they disagree about abortion. They favor racial equality, but they are divided on affirmative action. Hence there is a familiar phenomenon of a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.
      This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases.
      There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan.
      My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)]
    Applications How can you use the idea of an overlapping consensus or incompletely theorized agreement? These conceptual tools are useful when you believe that you have reached a theoretical impasse at some deep level. You've identified an issue, and you can see how the issue can be traced to a deep disagreement in moral or political theory. Now, you have some choices to make. On the one hand, you can try to resolve the deep disagreement. But there is a problem with this option. The deep debates in moral and political philosophy are both ancient and persistent. The world's great thinkers have worked on these problems. If Aristotle, Kant, and Bentham were unable to come up with a knock down argument in favor of their respective moral theories, then it does seem unlikely that you will be able to resolve these debates in an article or book that is mostly focused on another topic or idea. Moreover, the current state of the art in moral and political theory involves a complex field of interconnected arguments. If you need to master these debates before you can complete your work in legal theory, then the work may never be completed.
    The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition.
    Conclusion The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox!

Saturday, May 22, 2004
Legal Theory Bookworm Brand new from Oxford is Animal Rights: Current Debates and New Directions, edited by Cass Sunstein & Martha Nussbaum. Here's a description:
    Millions of people live with cats, dogs, and other pets, which they treat as members of their families. But through their daily behavior, people who love those pets, and greatly care about their welfare, help ensure short and painful lives for millions, even billions of animals that cannot easily be distinguished from dogs and cats. Today, the overwhelming percentage of animals with whom Westerners interact are raised for food. Countless animals endure lives of relentless misery and die often torturous deaths. The use of animals by human beings, often for important human purposes, has forced uncomfortable questions to center stage: Should people change their behavior? Should the law promote animal welfare? Should animals have legal rights? Should animals continue to be counted as 'property'? What reforms make sense? Cass Sunstein and Martha Nussbaum bring together an all-star cast of contributors to explore the legal and political issues that underlie the campaign for animal rights and the opposition to it. Addressing ethical questions about ownership, protection against unjustified suffering, and the ability of animals to make their own choices free from human control, the authors offer numerous different perspectives on animal rights and animal welfare. They show that whatever one's ultimate conclusions, the relationship between human beings and nonhuman animals is being fundamentally rethought. This book offers a state-of-the-art treatment of that rethinking.

Download of the Week This week, the Download of the Week is Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, Situation-Altering Utterances, and the Uncharted Zones by Eugene Volokh. Here is the abstract:
    Speech, some argue, should sometimes lose its First Amendment protection because it's really just conduct. These arguments have been made for a wide range of speech: (1) racially and sexually offensive speech in workplaces, universities, and places of public accommodation; (2) speech that informs people how certain crimes can be committed; (3) speech that teaches children harmful ideas; (4) speech that lobbies against housing for the disabled; (5) speech that advocates crime; (6) doctors' speech recommending medicinal marijuana to their patients; (7) speech that urges political boycotts; and even (8) public porfanity. This article will discuss several such this speech is really conduct theories. First, it responds to the argument that generally applicable laws, which apply to speech alongside other conduct, should be free from First Amendment scrutiny even when they cover speech because of its persuasive, informative, or offensive content. The article argue that such an argument is unsound, and inconsistent with many leading free speech cases. Restrictions that are content-based as applied should be treated the same way as restrictions that are content-based on their face. Second, the article responds to the argument that various kinds of speech should be punishable because they are part of an illegal course of conduct, speech brigaded with action, or speech act[s] rather than pure speech; such arguments often quote Giboney v. Empire Storage & Ice Co. (1949). The article criticizes Giboney, and concludes that if such an illegal course of conduct doctrine should be recognized, it should be narrow indeed - so narrow that it wouldn't apply to most of the cases where Giboney is cited. Third, the article discusses, and to some extent critiques, Professor Kent Greenawalt's view that certain kinds of statements are situation-altering utterances and thus unprotected conduct. Finally, the article confronts the uncharted zones of free speech - criminal agreements, criminal solicitation, much verbal aiding and abetting, professional speech, and the like - and suggests that these zones are best dealt with by recognizing properly bounded First Amendment exceptions (as the Court has done with regard to libel, incitement, fighting words, and the like), and not by relabeling the speech as conduct.
Download it while its hot!

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists: