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, March 31, 2003
McCain-Feingold Decision Hold Up The decision on the constitutionality of the BCRA is very late. Why? Rick Hasen reports on a story filed by Nina Totenberg, filled with scandal and intrigue. Read Rick's two posts in the following order:

Bertram on the Difference Principle Chris Bertram of the valuable Junius writes:
    I gave my annual lecture on Rawls's (much misunderstood) difference principle last week and in preparation I read Philippe Van Parijs's rather good essay "Difference principles" in the excellent new Cambridge Companion to Rawls. Van Parijs writes that the thought that lies behind the difference principle is that the absolute size of the social cake is not independent of the way in which it is distributed and asks why this is so. Most expositions stress the role that incentives can play in eliciting more effort and developing the skills of those with more advantages, a suggestion that is the focus of a well-known critique of Rawls by G.A. Cohen. Van Parijs rather downplays the incentive arguments and suggests instead that a more important justification is that inequalites put assets in the hands of those who can use them best and take them away from those who make poor use of them: the resulting efficiency gains are such as to eventually benefit everyone and especially the least advantaged.
Here is Chris's full post--which goes off in a different direction. Sticking to the difference principle, however, . . .
G.A. Cohen's Critique of the Difference Principle I must admit to being almost utterly mystified by the traction that Gerry Cohen's critique of the difference principle has developed. Simplifying Cohen's argument for the purpose of bloggin, the core idea is that incentives should not be necessary for citizens who have internalized the difference principle. They ought simply to be motivated by the difference principle to work so as to make the least-advantages as well off as they can be. (Among the simplifications is that I am using the phrase "well off" and not discussing Rawls's idea of the "primary goods.") But this argument both misunderstands the point of justice as fairness and would lead to absurd consequences.
Cohen Misses the Fundamental Idea of Reciprocity Cohen's argument misses a fundamental premise of the Rawls's theory. The point of justice as fairness is not to benefit one group--the least advantaged. Rather, justice as fairness requires reciprocity--all must benefit. Cohen's argument would lead to a basic structure that (with respect to the primary goods) is aimed at the benefit of the least-advantaged, with no reciprocal advantage for other groups. This same point can be made another way. If Cohen were right, everyone who was not in the least advantaged group would be obligated to adopt the welfare (loosely speaking) of the least advantaged as their own goal in life. So long as there was a least advantaged group, no one outside that group would be entitled to their own comprehensive conception of the good. No one could pursue art, music, religion, or building a better Internet as a life plan, unless their action would produce the greatest benefit for the least well off as compared to any alternative course of action. From a Rawlsian perspective, Cohen's critique self destructs.

Workshops Today Here is today's roundup:
    At Florida State, Robert Hillman (Davis) does Organizational Choices of Professional Services Firms: An Empirical Study.
    At NYU's Faculty Workshop series, Fred Schauer (Visiting at NYU & Harvard, Kennedy School) is on the calendar.

Sunday, March 30, 2003
Milestones Department This evening the number of visits for Legal Theory Blog went over 10,000 for the month of March. Although a smallish number by the standards of Instapundit or the Volokh Conspiracy, it seems quite respectable for a weblog that focuses on scholarship and ideas related to legal theory.

Is Yoda a Legal Theorist? Check out Political Theory Blog for startling evidence that the answer to this question is yes. And while you are at it, take a look at Micah's post on judicial junkets.

Wittgensteinian Politics I am usually somewhat skeptical about appropriations of Wittgenstein--especially in the post-modern vein. Along those lines and courtesy of the really super, here is a paper by Melinda Kovács (Rutgers, Political Science) entitled Play nice: Towards a Wittgensteinian politics. Kovács essay detours hither and yon, ending:
    The politics informed by Wittgenstein, in the domains of both theory and method, is indeed slow and messy. It is also incremental, non-revolutionary, and somewhat self-conscious or even hesitant. It is humble enough to avoid claims to knowledge of the world. It calls for action but not of the global or cosmic kind. It tells us we do not exactly have the choice of whether or not we want politics – it is a game that is already going on. So we may as well play nice.
Well maybe. But think about this. By far the most influential work in the Wittgensteinian tradition that reaches normative questions has been gone in a variety of neo-Aristotelian directions. Of course, Elizabeth Anscombe go the ball rolling in her famous essay, Modern Moral Philosophy, which was recently anthologized in Roger Crisp and Michael Slote's collection Virtue Ethics: Oxford Readings in Philosophy. This line of thought has been pursued in various ways--John McDowell's work is crucial. But for my money the big important moves were made by Philippa Foot--see especially her collection Virtues and Vices and her recent Natural Goodness. And contemporary work in this vein includes Rosalind Hursthouse's important book On Virtue Ethics. For references and more, see my Virtue Jurisprudence: A Virtue-Centered Theory of Judging. It doesn't really matter who is the true heir of Wittgenstien. It does matter whether the work lives up to the almost brutal rigor and self-critical introspection that makes Wittgenstein unique among twentieth century philosophers. Play nice? I think not!

Zittrain on Internet Points of Control Jonathan Zittrain's paper entitled Internet Points of Control somehow slipped past me a week or two ago. I heard Jonathan do an earlier version of this at Boston College in the Fall--must reading for cyberprofs and others interested in legal regulation of the Internet. Here is a taste:
    The most worrisome outcome is one in which filtering [by ISPs of unlawful content] creeps into the system in an ad hoc way, without formal evaluation of the standards by which it is taking place or the criteria by which ISPs choose to accede to such filtering when the requests are informal, or an ability to fully evaluate the nature of the sites filtered. To have sources of Internet content simply disappear from the perspective of others—at first for some rather than all—portends enormous but subtle control over who can say what on a formerly free-for-all medium. The Internet’s brilliant methodology of data routing—a flexible set of intermediaries functioning in tandem yet with little central coordination—offers multiple opportunities for control that are only now coming into focus for regulators. Such control cannot be accepted, even if initiated for substantively good intentions, without the most exacting of processes to avoid abuse, including a comprehensive framework where sov-ereigns’ actions to block material are thoroughly documented and open to challenge. If carefully implemented and circumscribed, however, govern-ment mandated destination-based filtering stands the greatest chance of ap-proximating the legal and practical frameworks by which sovereigns cur-rently sanction illegal content apart from the Internet. Attention to distinct points of control, then, can force cyber-libertarians to dispense with proce-dural or jurisdictional concerns about regulation and instead either to rely flatly on theories of free speech and action that go beyond even the most liberal governments’ current allowances, or to invoke Internet exceptional-ism to explain why it should be indeed freer than its analog media counter-parts.
A must download for those interested in the future of IP on the Internet.

Saturday, March 29, 2003
Back from Brazil I've returned from the ICANN meeting in Brazil. Here is a guide to my posts on the Internet Corporation for Assigned Names and Numbers:

A Law Student Blog with a Difference Whatever your position on the war, you will be interested in Intel Dump. The blog of UCLA law student and former Army Officer. Read his informative post on Urban Warfare.

More Hasen on Judicial Nominations While I was Flying Up From Rio, Rick Hasen has been more good stuff on judicial nominations. Here is his post on filibustering in the context of the war. And here is a post on the nomination and possible filibuster of Priscilla Owen. Rick may need to change the name of his Blog from Election Law to Judicial Nominations.

New on SSRN Some new papers went up late yesterday. Here are the highlights:
    Susan Klein (Texas) uploads No Time for Silence. Klein responds
      . . . to the position, taken by the Solicitor General of the U.S. Dept. of Justice in Chavez v. Martinez . . . that the police are free to disgregard Miranda. [She] suggest[s] that the privilege against self-incrimination is best viewed as a ban on certain official conduct outside of a criminal trial, not as an evidentiary rule. The Supreme Court in Kastigar v. United States, by blessing prosecutorial grants of immunity pursuant to statute, did not intend to extend this same authority to police officers in back rooms. [The paper] further argue[s] that a deliberate violation of any right invoked under Miranda should give rise to a viable civil rights claim. Scholarly attacks on Miranda are simply misdirected unhappiness with the privilege itself. Finally, [it] suggest that the tragic events of September 11, 2001, do not warrant the abandonment of the privilege in ordinary domestic criminal cases.
    Ronald Wright (Wake Forest, general) and Marc Miller (Emory) offer Honesty and Opacity in Charge Bargaining. Here is a taste from the abstract:
      Based on our study of case screening practices in New Orleans, we believe that pervasive harm stems from charge bargains due to their special lack of transparency. Charge bargains, even more than sentencing concessions, make it difficult after the fact to sort out good bargains from bad in an accurate or systematic way. We do not believe that active participation by even the best defense counsel can solve this problem.
    Leandra Lederman (George Mason) has posted The Interplay between Norms and Enforcement in Tax Compliance. Here is a bite from the abstract:
      A number of scholars have suggested that vigorous enforcement of the tax laws may be counterproductive because it may suggest that noncompliance is the norm. This article argues, in part, that enforcement and a compliance norm are not inconsistent but rather are complementary. In other words, enforcement can buttress norms-based appeals for compliance. To support this argument, the article draws on an array of empirical evidence from both experimental "games" conducted in the laboratory and field experiments involving taxpayers.

Friday, March 28, 2003
Downward Spirals Department My colleague Rick Hasen (who thinks that we are on a roller coaster & not a downward spiral) posts re the possibility that Judge Priscilla Owen, nominated for a vacancy on the United States Court of Appeals for the Fifth Circuit, may be filibustered.

New Papers on SSRN Here are the new papers on SSRN:

Habermas at the Royal Institute of Philosophy Jurgen Habermas--surely one of the greatest philosophers of the era--speaks today at the Royal Institute of Philosophy. His lecture is entitled: On Tolerance, Democracy and Cultural Rights. The venue is Beveridge Hall, Senate House, Malet Street, WC1, London. I tried to book my trip to the ICANN meetings in Brazil through London, but I just couldn't make it work!

Thursday, March 27, 2003
Balkin on Scalia on Originalism Jack Balkin's blog Balkinization is one of the best--although I frequently find myself disagreeing with Jack's articulate and trenchant posts. He has a doosy on originalism up today. Here is a snippit:
    My criticism of Scalia is that he states that original understanding is the touchstone of all legitimate constitutional interpretation (a view I do not hold) but he nevertheless picks and chooses the occaisions under which he will invoke original understandings, based on his substantive views about the Constitution. Pointing this fact out does not commit me to acceptance of the philosophy of original understanding as the touchstone of all legitimate constitutional interpretation. Rather, it suggests that Scalia isn't being entirely honest about what his views on constitutional interpretation are.
Yes and no. I'm sure Jack is right in part, but a lot of work has to be done to make this point convincing. In particular, there are several legitimate and principled reasons for an originalist judge (as opposed to scholar) might depart from original meaning when deciding particular cases. Here are some:
    --The Originalist Position Is Outside the Feasible Choice Set. Justices need votes, but the different justices treat originalism in different ways. Unless Scalia were to dissent or concur in almost every case, he has to compromise.
    --Originalism May Be Internally Constrained for Principled Reasons. Originalism is only a module within some larger theory of the constitution and interpretation. Other modules in the theory may trump originalism in particular situations. Actually, I think that it is at this level that consistency is quite difficult to achieve. For example, some rule-of-law originalists believe stare decisis trumps originalism, and that originalist results should only be achieved via incremental common law changes. (We move from an unoriginaist interpretation to an originalist one by making marginal adjustments where there are gaps, contractictions, or ambiguities in the precedents.)
    --Originalist Solutions May Be Unavailable Because of Case Dynamics. Because our system is adversaril, parties shape records, lower court decisions, and the argument set before the court. This shaping process may render the originalist solution outside the choice set before the Court.
Now, I still think that judges tend to be inconsistent. My point is a very modest one. Inconsistency is hard to demonstrate.

Lawrence v. Texas Erik Jaffe (of the Ancient and Respected Order of Volokh Bloggers) attended the oral argument in Lawrence v. Texas (the challenge to the Texas sodomy laws) yesterday. Here is his very nice post. And there is also a post from the ever-helpful SCOTUSBLOG. And here is the L.A. Times story.

Blogging from Brazil 7 Today was the last day of the Rio De Janeiro meeting of the Internet Corporation for Assigned Names and Numbers (ICANN). Here are a few last thoughts and impressions about the meeting:
    From Process to Substance Three years ago when I first began attending ICANN meetings, the organization was consumed with process. The ill-fated global elections experiment was followed by the ERC (Evolution and Reform Committee). The impractical (global elections) was replaced by the byzantine (ICANN2's baroquely complex constitution in which everyone seems to elect everyone else in an Ourobus Worm of interlocking Supporting Organizations, Nominating Committee, and Board). Even ICANN insiders can't remember how it all works! But here is the thing: the last several meetings have focused on substance. Vint Cerf even said he enjoyred the Rio meeting!!!
    Topsy Turvey Economics On the bus from the public forum to dinner on Wednesday night, I had one of those big fat a ha moments. Here is what it was about. Stuart Lynn (who steps down as President of ICANN today) described his sTLD beauty-contest plan as an RFP process. When thinking about the root, here is how Lynn sees things. He sees TLD name service as something that ICANN is responsible for providing. Therefore, he thinks of the TLD operators (e.g. Verisign, the ccTLD operators, etc.) as vendors--from whom ICANN buys a product (name service at the TLD level). In other words, ICANN is the customer! But wait a second! That is exactly backwards. ICANN holds a valuable resource--the root. ICANN sells root service to TLD operators, who then sell TLD name service (via the registrars as intermediaries) to you and me. ICANN is in the business of allocating a resource, and not buying a service. No wonder ICANN is having trouble developing a rational resource allocation policy! How can you develop a system for rationing the scarce root resource, if you don't even know you have a scarce resource to allocate!
    A Change in Tone The worst thing to do with a resource is waste it. That has been ICANN's basic policy toward the root--waste the resource by maintaining a virtually static root. In November 2000, ICANN held a beauty contest that expanded the root just a little bit. In Rio, ICANN set in motion yet another beauty contest that would expand the root an even smaller bit. But there was also a change in tone. Vint Cert articulated an important principle regarding the root. He suggested that the fundamental principle that should govern expansion of the root is that new TLDs should be allowed in the root as long as they will do no harm. Let me repeat that. Cerf's Principle: A new TLD should be allowed in the root so long as it does no harm. But wait, there's more. When the meeting started, the notion of a market-driven allocation process looked like it was in big trouble. But by the end of the public forum, the factions within ICANN that are holding on to the idea of a static root were on the defensive. (Their slogan is: Don't push the problems of the second level to the top. I would put it: Don't allow the economic miracle of millions of SLDs pollute the last part of the DNS to be managed by top-down engineering, the pure and holy root.) Even those who advocate wasting the root were beginning to talk about the inevitabiity of market approaches. Even Stuart Lynn was talking about demand-driven approaches! Of course this is ICANN, never underestimate the possibilities for strategic blocking in a consensus-driven, bottom-up, entrenched-stakeholder organization. But the consensus at the dinner after the public forum was that the tone of the debate had changed. The defenders of a static root are only going through the motions. Beauty contests are under attack. Market-driven approaches are on the intellectual offensive.
    The Road Ahead What challenges will ICANN face in Montreal, Carthage, and beyond? Here are some of the issues that are likely to emerge:
      --Privacy. ICANN faces a cluster of issues that revolve around the Internet and privacy. Of course, ICANN itself has responsibility for only a tiny slice of the Internet privacy problem. One part of that tiny slice is WHOIS, the system that allows anyone (you or me) to look up the name and address of anyone who registers a website. Many website registrants don't really give informed consent to making this personal information very public, although they do give formal consent. ICANN circumvented this issue in connection with the WHOIS task force recommendations, but this issue and others like it must be faced.
      --Root Expansion. Sooner or later ICANN must face the BIG policy question of root expansion. This would be a suitable topic for a task force that includes members from outside ICANN's internal structure, e.g. an economist. (On his way out of the airport, Vint Cerf collared me and told me that he needed to have a conversation about economists with me. OK, Vint!
      --The Digital Divide. I am convinced that ICANN should stay out of the general Digital Divide issue, but ICANN is inevitably involved in the particular DD issues that are inevitably raised by the ICANN's resource allocation responsibilities for the name and number space. All of the gTLDs are first world focused. IDN (Internationalized Domain Names) creates the possibility of new gTLDs using IDN. One of ICANN's highest priorities should be IDN gTLDs for LDCs. How's that for acromania! In plain English, ICANN should faciliate the creation of new .coms, .orgs, etc. that use characters sets other than the very restricted set--Roman alphabet, Arabic numeral plus hypen and underscore--that is currently permitted. This is especially true for LDCs (Less Developed Countries). If someone doesn't jumpstart IDN gTLDs for LDCs, they will be a long time coming. The IDN standard has been formulated, so ICANN needs to move on this issue.

Thursday is Workshop Day Here is the roundup:
    At BU's excellent series, the always interesting Bob Bone workshops A Journey to the Limits of Trademark Law: Have Courts Gone Too Far?.
    At George Mason, Michele Boardman (George Mason and the Volokh Order of Noble and Prolific Bloggers) presents Self-Regulation of Critical Infrastructure through Insurance: Can the Turtle Play Sentry to the Hare?.
    At the University of Michigan's Olin Series, Scott Masten (Michigan) presents Contracting in the Absence of Specific Investments and Moral Hazard: Understanding Carrier-Driver Relations in US Trucking.
    At Yale's Legal Theory Workshop series, Arthur Applepaum (Harvard, Public Policy) presents Legitimacy in a Bastard Kingdom. As I began to read his paper, I had one of those great big head-spinning a-ha! moments. After you read the next sentence, you may say to yourself, "I didn't know Solum was so dense," but here goes. Applebaum's paper opened my eyes to the obvious point that normative political legitimacy is closely related to the legitimacy of heirs--hence his title. I have been been puzzeled by the concept of normative legitimacy for years. Here is a taste of the fine work in Applebaum's paper:
      To answer, we need to make two distinctions. The first is the distinction between descriptive legitimacy—the social fact that people believe some person or institution has the moral right to rule—and normative legitimacy—genuinely having the moral right to rule. These are two different notions, and we need to be clear about when we’re using one, when we’re using the other, and what, if anything, connects the two.
      The other distinction is between the word legitimacy, the concept or idea of legitimacy, and particular conceptions of legitimacy, the content of the concept. “Fine word, legitimacy!” Edmund says with irony. It is a fine word, but we need to trace its changing senses over time to distinguish the word from the idea or ideas it expresses. The same word, of course, can come to refer to different concepts—a “civil right” is not a polite uppercut to the jaw—and different words—“authority” is the closest cousin here—can refer to the same concept. I have, a moment ago, offered a rough account of the concept by saying that legitimacy is the moral right to rule, but if we understand conceptual analysis as the exercise of marking off apt boundaries for fruitful argument so that we neither talk past each other nor beg the question, we may discover that this rough draft needs some editing. Finally, the concept or idea of legitimacy can be filled out in different ways. We can both agree that we are talking about the same idea, legitimacy, but disagree about its content: criteria for how you get legitimacy and what it gets you.
    This is the kind of crisp, clean, smart analytic work that I love. Read this paper. It is witty. It is smart. It makes progress.
    At the University of San Diego's Law, Economics, and Politics Workshop series, Joy Freeman (UCLA & Bren School of Management, UC Santa Barbara) and J.R. DeShazo (UCLA, Public Policy) present The Congressional Competition to Control Delegated Power. Here is a taste from the abstract:
      In this Article, we challenge the "monolithic” view of Congressional control over delegated power, which assumes that oversight committees will enforce the wishes of an enacting majority. In contrast with this prevailing view we argue that Congress consists of rivals who compete for control over power delegated to agencies. Individual committee members with access to oversight tools vie for control over agencies, both with each other and with past enacting majorities, to further their own interests. Contrary to the conventional understanding, we therefore argue, committee members sometimes defy majority preferences rather than reinforce them.

Wednesday, March 26, 2003
Blogging From Brazil 6 ICANN is a truly interesting organization. Here we are in Brazil making decisions regarding the future of the global internet, and just anyone (me, in this case) can just walk in off the street and make a speech to the Board of Directors at the Public Forum. The topic was the expansion of the root space. In particular, lame-duck ICANN President Stuart Lynn make a very thoughtful presentation of his proposal for a limited round that would allow only sponsored Top Level Domains into the root. Lynn's proposal is for a complex, criteria driven, beauty-contest model. Only nonprofit, global, membership organizations would be eligible. Some of the criteria for evaluation were vague: does the proposal add value? Others are intrustive: does the sponsoring organization have adequate procedures for internal communciation and input--surely none of ICANN's business.
The Better Should Not Defeat The Good Earlier in the meeting, the Chair of the Board, internet pioneer Vint Cert, made a plea for incremental improvement. Don't let incremental improvements be defeated on the ground that something even better is on the horizon. Yes, of course. In many contexts, incrementalism is just common sense. But in other cases an incremental improvement may lead to unintended consequences.
Unintended Consequences of an sTLD Beauty Contest So what might the unintented consequences of an sTLD beauty contest be? Here are some possibilities?:: Cost-Based Rationing to the Non-Profit Sector--Lynn was aiming at objectivity. To that end, he proposes multiple teams of evaluators who will rate applications on the basis of an elaborate point-system. Moreover, some of the criteria encourage expensive applications. For example, community support is a criterion, but demonstrating deep and wide community support can be very expensive. The sTLD space is intended for nonprofit organizations, and it therefore seems quite odd to allocate the root space allocated for non-profits by imposing substantial application expenses. Wouldn't it make sense, instead, to create a very lean, low-cost mechanism for entry into the sTLD space? How about automatic entry into the root for international non-profit membership organizations that can demonstrate that they have or have contracted for the necessary back end technical competence?
:: A Slippery Slope--But a more serious unintended consequence of sTLD beauty contests is the danger that by creating an elaborate beauty contest mechanism, ICANN is taking a second step towards institutionalization of the beauty-contest model. Think about the following scenario:
    +Step One: The November 2000 Marina Del Rey round--an ad hoc, unstructured beauty-contest.
    +Step Two: The Summer 2003 Montreal round--a formalized sTLD beauty contest with mutliple-criteria, a point system, and multiple independent evaluation teams.
    +Step Three: A 2004 round--the formalized beauty contest mechanism is extended from sTLDs (nonprofit, membership organizations) to other categories of gTLDs (perhaps nonmembership nonprofits or even commercial gTLDs).
How will ICANN prevent the transitions from a special, limited-purpose sTLD beauty contest to a generalized gTLD beauty contest?

Junius on Recent Political Philosophy Texts Chris Bertram has a really nice round-up of recent political philosophy texts. One of the texts is by the late Jean Hampton, who in her first year at UCLA was my first teacher in legal and political philosophy. I still mourn her tragic death at a very early age. I was therefore touched and pleased by Chris's praise of the book. Check out Chris's fine post. Post Scirpt Chris adds a bit more here.

New on SSRN Three very interesting new papers have recently been posted on SSRN:
    Christian Leuz (Penn) and Felix Oberholzer-Gee (Penn, Wharton) have uploaded Corporate Transparency and Political Connections.
    Robert Rabin (Stanford) posts The Quest for Fairness in Compensating Victims of September 11, forthcoming in the Cleveland State Law Review.
    Thomas Grey (Stanford) offers Judicial Review and Legal Pragmatism. Here is a taste from the abstract:
      Until World War II, the United States was the only legal system to have active judicial review, and it was also the legal system within which a functionalist or pragmatist rather than a formalist approach to law generally was best established in legal education, commentary, and judicial discourse. What is the connection between these two phenomena? One possibility is that judicial review furthers a "statesmanlike" and hence a flexibly pragmatic approach to legal questions. Such a story can plausibly be told about how over the last half century legal systems around the world have gotten more pragmatic in their approach to law generally, as they have adapted to judicial review. A similar story can be told about American legal history - that John Marshall in establishing judicial review also inaugurated the Grand Style that led on to Cardozo and Llewellyn by direct inspiration. But on examination the latter story doesn't hold up. If judicial review led to pragmatic jurisprudence in this country, it was by reaction, not direct inspiration. The legal Progressives, who were skeptics about judicial review, effectively joined into a single "assault on formalism" their critiques both of Langellian private-law conceptualism, and of the aggressive classic-liberal constitutional doctrines of the Lochner era. These two tendencies were only loosely related, as we can see when we analyze the elements that lead us to describe a body of thought as formalist. But the Progressives' successful conflation of them into a single impressive bogeyman helped motivate the establishment of the functionalist orthodoxy that was articulated over the course of the twentieth century by Holmes, Thayer, Gray, Pound, Cardozo, Brandeis, Corbin, Wigmore, Llewellyn, Fuller, Traynor, Posner, and the many other pragmatist legal thinkers who have made up the mainstream of modern American legal thought.

Comments on the ICANN sTLD Beauty Contest Proposal Have Been Posted Karl Manheim and I have posted a comprehensive set of comments on the new ICANN proposal to establish beauty-contest process for the evaluation of new sponsored Top Level Domains. Here are the relevant links:

Blogging from Brazil 5 Those who have been following my Blogging from Brazil posts know that one of the issues that I have been following is root expansion. Top level domains (TLDs), such as .com, .org, and so forth are controlled by ICANN. In November of 2002, ICANN decided to add several new TLDs, including three sponsored by non-profits (.aero, .coop, and .museum). My colleague Karl Manheim and I have posted a policy paper to SSRN entitled The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy and we have established a website that collects news and resources at ICANN's complex internal machinery has been munching on this issue for some time, and a variety of ideas are floating around the ICANN idea space.
New ICANN "Beauty Contest" Proposal Posted Yesterday Yesterday, the ICANN staff posted a new document on ICANN's website. The document is entitled Criteria to Be Used in the Selection of New Sponsored TLDs (click on the link). The core idea of the proposal is to create a limited number of new sponsored Top Level Domains (sTLDs). Only non-profit well-resourced membership organizations would be eligible to established sTLDs. The proposal suggests a number of highly subjective criteria by which proposals would be evaluated, and a complex out-sourced beauty-contest process for numerical ranking of the proposals. The new ICANN document suggests that this proposal could serve as a template for future root expansion!
The Worst of All Possible Worlds The sTLD beauty contest proposal makes sense as a short-run solution to a short-run problem. The November 2000 round was, in many respects a process disaster. On the plus side, the root name space was expanded. But on the minus side, ICANN's Board was forced to engage in an ad hoc beauty constest procedure, with no objective criteria on which to base its decision. Quite naturally, disappointed applicants were unsatisfied with the process. ICANN put itself in the position of being open to charges of arbitrary, unfair, and illegitimate action. Why not let in three more gTLDs sponsored by non-profit, membership organizations on the model of .aero, .coop, and .museum? The problem is that ICANN could not just let three more in. Some open process needed to be established. The sTLD beauty contest proposal is intended to provide a more rational beauty contest, and to get the ICANN Board out of the role of judging. Bravo! But in the long run, this is absolutely the worst decision ICANN could possibly make. The problem is beauty contests never work. We have known this since Ronald Coase's devastating critique of the FCC beauty contest approach. No matter how hard the FCC tried, beauty contests were arbitray and unfair.
The Fundamental Problem The fundamental problem with the beauty contest approach is that it is just plain impossible for a board to do even a decent job of determining which innovative uses of a resource will succeed and which will fail. Experience teaches this lesson to those who judge resource-allocation beauty contests. So the judges do what they can do. The judges can't evaluate the worth of the proposals, so they focus on the characteristics of the contestants! And this is exactly what the new ICANN sTLD beauty contest proposal does. There are elaborate criteria regarding the qualifications of the applicants and vague, mushy criteria for the criteria regarding the merits of the actual new sTLD.
Down the Slippery Slope If the ICANN board approves the sTLD beauty contest proposal, the results are predictable. A formalized, rationalized, bureaucratized beauty-contest mechanism will have been established. In the beginning, it will be applied to one round of sTLDs and it will be an improvement over the ad hoc November 2000 round. The ICANN Board will then be on the slippery slope to a beauty-contest model. At the bottom of the slippery slope is the worst mechanism devised by humankind for the allocation of a scarce resource! More later!

Downward Spirals Department Rick Hasen has another articulate and intelligent post. He argues that we are not in the midst of a downward spiral, but rather are on a "roller coaster" of politicization. More on this later.

Tuesday, March 25, 2003
Political Theory Blog I've added a link to Micah Schwartzman's Political Theory Blog to the sidebar. Once again, thanks to Chris Bertram at the wonderful Junius for prompting me to do this.

Blogging from Brazil 4 Lee McKnight (Syracuse) organized a small group on Monday night to discuss ideas for expanding the gTLD name space. Before I report on the conversations, some background.
    Coase Almost everyone in legal academia and economics knows that story of Ronald Coase's famous 1959 article, The Federal Communicatons Commssion. At the time, the FCC used the "beauty contest" approach to allocate broadcast spectrum licenses. Applicants came before the FCC to argue that they would serve "the public interest;" rivals argued they would not. The result was 75 years of disastor. A public resource was given away. The market in spectrum was inefficient. Many tens or even hundreds of billions of dollars of resources lay fallow. It took almost forty years for Coase's proposal, spectrum auctions, to prevail. In the short run, Coase's proposal was outside the feasible choice set; entrenched stakeholders (e.g. those who already owned licenses) could mobilize political resources to block the adoption of auctions. In the long run, Coase's ideas triumphed--witness the recent spectrum conference at Stanford, where the debate was between auctions (property in spectrum) versus commons (an even less regulated property regime). The FCC is now considering a "big bang" auction--putting unused and already licensed spectrum on the block.
    Back to Monday Night So what happened Monday night? Of course, ICANN meetings involve stakeholders and wanna-be stakeholders. Nokia was at the meeting to explain their .mobile TLD concept--essentially a plan for a new top level domain that would be used by the telcos and mobile phone manufacturers to create domain names for mobile phones. McKnight presented the Mueller/McKnight auction plan. Then the questions started flying, and they were really, truly amazing--in a good and bad way. Here is a sample of the ideas that were bandied about:
      Scarcity. Once again, we heard the argument that there is no need to auction the gTLD name space (new .coms, etc.), because there is no real scarcity! This conversation (which I have had over and over again) is so frustrating. The notion that there is no scarcity in the name space is, of course, utterly ridiculous. Each name string is unique. If I own the right to operate the .com TLD, you can't own it. Each name string is a scarce resource in the economic sense, and anyone who disagrees doesn't understand the economic concept of scarcity. Of course, there are lots of supersmart people who make this mistake. Why? It's hard to know, but I suspect that it is because they are engineers and they look at the question as an engineering question. There is no shortage of possible gTLD strings in the engineering sense. If you allow strings of 25 characters in length, there are 38 to 25th power of available strings--and of course that is a vast number. More than enough from the engineering point of view. But not all strings are created equal. A top-level domain named .sk3kk99xs2 would be worthless. A top-level domain named .auto or .car might be worth quite a bit. If there were not scarcity in the name space, an auction would produce zero revenues, but the very same people who assert there is no scarcity also concede that some strings would have high prices in an auction! Amazing!
      Short Run Focus The participants in the ICANN process, quite naturally, have a very short-run focus. They are (and should be) interested in making money. So the parties that are the most interested in expansion of the root (i.e., in having new TLDs) are those who have applied to ICANN in the past and not yet been granted their and .web were represented Monday night. So the stakeholders and wanna-be stakeholders want ICANN to approve their new gTLDs right now or as soon as possible. They are in favor of gTLD auctions, if it will speed up their getting their gTLD and opposed to auctions if auctions will slow down their getting their gTLD. Of course, many existing stakeholders have an interest in preventing expansion of the root. Verisign (the operator of the .com registry), in particular, may have an interest in blocking new unrestricted gTLDs that would compete with .com. The interaction between these groups makes it very difficult to get bottom-up consensus on an auction proposal.
      What is Value Another question that is frequently raised about gTLD auctgions is: "Will the gTLDs that win the auctions have value?" Or will such gTLDs "add value?" Huh? Of course, it is possible that firms will bid for value-less gTLDs, but the whole point of a market is to insure that resources are put to their most valuable use. The gTLDs that are established as a result of an auction are exactly the gTLDs that the market tells us are most likely to add value. The "value added" question seems, at bottom, to be based on the assumption that someone (the questioner, ICANN's board) can do a better job of estimating value than the market. Sometimes this is the ending point of the conversation, but some interlocutors seem to have another idea in mind. They seem to believe in some concept of intrinsic value, i.e. value that cannot be measured by prices. Well maybe. But here is the problem. No one agrees on what constitutes intrinsic value. I suspect that in the context of new gTLDs, the idea of intrinsic value sometimes boils down to "value from the point of view of a network engineer." If so, then: (1) the market can account for this kind of value, because it affects costs and benefits, and (2) the Internet is for end users, not for network engineers.
    More later!
For now, signing off from Rio!

New on SSRN Several interesting papers have gone up on SSRN recently:
    Karl Manheim (Loyola Marymount) and Lawrence Solum (Visiting San Diego & Loyola Marymount) have put up The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy. This paper from your humble blogger deals with the question as to how the gTLD name space should be allocated? Should there be new top level domains (like .com, .edu, and .info). We argue that the answer is yes. If so, how should they be allocated? Of the four possible allocation mechanisms, (1) "beauty contests" (public interest hearings), (2) "land rushes" (first applicant), (3) "lottery," (random assignment), or (4) "auction" (market-based allocatin), we argue that auctions are the best approach, because an efficient market will put the resource, the name space, to its highest and best use at the best price.
    Richard Pildes (NYU) uploads The Inherent Authoritarianism in Democratic Regimes. Here is a taste from the abstract:
      This article argues that authoritarianism is an inherent structural tendency of democratic regimes. The article is written as a chapter for a book, Out of and Into Authoritarian Law, that explores the revival of authoritarianism tendencies in certain new constitutional democracies of Eastern and Central Europe. The article locates one structural tendency toward authoritarianism in the techniques by which those currently holding political power manipulate regulation of democractic structures with the aim and effect of suppressing political competition.
    Daniel Farber (Minnesota) posts The Problematics of the Pareto Principle. Farber is going after Kaplow and Shavell. Here is a little bite from the abstract:
      The Pareto principle is often considered self-evident, particularly by economists. On close examination, however, it is much more problematic than is commonly believed. Preference satisfaction is only imperfectly related to values such as individual welfare and autonomy. Moreover, preferences can change during transactions or because of shifts in legal regimes, presenting knotty conceptual difficulties. Finally, complete adherence to the Pareto principle may be incompatible with other, equally appealing ethical standards. As Sen showed, the Pareto principle is inconsistent with at least some forms of libertarianism.
    Lynn Lopucki (UCLA) offers up Did Privacy Cause Identity Theft?, forthcomin in the Hastings Law Journal. Here is a short bit from the abstract:
      This essay argues that the decline of public identities over the past three decades, combined with increasing secrecy in the process of identification, is the root cause of the burgeoning problem of identity theft. Identity theft is easy because impersonation increasingly takes place in private transactions that are invisible to the victim.
    Aristides Hatzis (Athens, Philosophy & HIstory of Science gives us 'Just the Oven': A Law & Economics Approach to Gestational Surrogacy Contracts.
    Victor Romero (Pennsylvania State) has made available Decoupling 'Terrorist' from 'Immigrant': An Enhanced Role for the Federal Courts Post 9/11 and Critical Race Theory in Three Acts: Racial Profiling, Affirmative Action, and the Diversity Visa Lottery, forthcoming in the Albany Law Review
    Emily Buss Doss (Chicago) uploads two pieces: The Speech Enhancing Effect of Internet Regulation & Children's Associational Rights? Why Less Is More.
    Adam Pritchard (Michigan) has shared Should Congress Repeal Securities Class Action Reform?.

Monday, March 24, 2003
The Semantic Web Courtesy of EDdventure, this regarding Tim Berners-Lee at the PC Forum yesterday:
    The man who invented the World Wide Web explains its successor, the Semantic Web. His vision, now shared by many, is a Web that comprises meaning and intelligence along with data. What will it take to build it? For starters, just like the World Wide Web, it won’t be built. It will emerge from the distributed efforts of people all over the world defining their data in a way that will allow the data to carry its context with it, for use in other people’s content and applications. Call the Semantic Web the world’s largest, bottom-up, never-ending systems integration project, with the goal of making everything interoperate intelligently.... Tim Berners-Lee will describe some of the technologies and attitudes necessary to make that happen.
I'm sure this means something, but what?

Another Blogger from Rio Check out Ross Wm. Rader's

Klimchuk on the Autonomy of Corrective Justice Dennis Klimchuk (Western Ontario) has a nice piece coming out in the Oxford Journal of Legal Studies for March. Here is the abstract:
    A few years ago, Peter Benson argued that unless claims in corrective justice are grounded on an independent, non-distributive measure of entitlement, corrective justice collapses into distributive justice. More recently, Stephen Perry argued that the autonomy of corrective justice can be secured with something more modest, namely a free-standing conception of harm. I argue, first, that Perry's account is closer to Benson's than we might at first think, and, second, that implicit in each is a view that we ought to reject, namely that corrective justice can be autonomous only if there are rights or entitlements which the law does not confer but must, on pain of injustice, protect. In conclusion I defend the view that corrective justice takes as found the positive law's measure of those interests that merit protection in individuals' interactions with others, and explain what, on this account, is meant by holding that corrective justice is autonomous.

New Paper on TLD Expansion One of the most important Internet governance questions concerns the management of the Top Level Domain (TLD) space. Top Level Domains like .com, .edu, and .org are a scarce resource in the economic sense, and the Internet Corporation for Assigned Names and Numbers (ICANN) is charged with the task of resource allocation. So far, ICANN policy has resulted in severe shortages in the TLD space. Firms want to create new TLDs, but ICANN has been slow to respond to the demand. Given Ronald Coase's devastating critique of the Federal Communicatons Commission's "beauty contest" model of resource allocation, one might think that the one approach to TLD expansion that ICANN would have managed to avoid would be ad hoc hearings, in which ICANN Board Members attempt to pick the best TLD's based on their own estimation of the proposals value, but that is exactly what ICANN has done so far. Recently the Business Constituency (a subgroup within ICANN's byzantine structure) has suggested what it calls "differentiated expansion," essential a plan to "taxonomize" top level domains. New domains would be allowed only if they are limited in scope and sponsored by a nonprofit organization. No new unrestricted top level domains would be allowed. You can get the Business Constituencies Position Paper here.. My colleague, Karl Manheim, and I have written an extensive analysis and critique of the BC's position. You can download The Inefficiencies of Differentiated Expansion by clicking on the title. Post Script New: We have another, longer, paper that argues that case for an auction-based approach to gTLDs: The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy. Click on the title to go the SSRN download page.

Blogging from Brazil 3 I've just ducked out of the traditional dog-and-pony show, with the ICANN Board answering questions from the Business, Intellectual Property, and ISP constituencies. Vint Cert drew a round of applause when he suggested that the time for discussion of structural reform was over and stated that he would focus on the substantive issues faced by ICANN. It is remarkable how ICANN manages to consume itself in endless debate about structure--to the almost total exclusion of the issues that face the name and number space. The result is that ICANN has been unable to make rapid progress on issues like Internationalized Domain Names, TLD expansion, and IPv6--which actually impact users of the Internet. ICANN meetings are almost the only place in the entire universe where there is more discussion of process than in a law school faculty meeting!

MacIntyre on Harrison on Sidgwick Don't miss Alasdair MacIntyre's review of Ross Harrison's Henry Sidgwick. Get it here, courtesy of the Notre Dame Philosophical Reviews.

Monday Workshops Here is today's roundup:
    At Loyola Marymount's faculty workshop series, Judith Resnick (Yale) workshops Just Judges.
    At the University of Cardiff, Chris Bertram (of Junius fame) presents Global Justice and Democracy. Chris argues "that there's an asymmetry between what distributive justice requires in the intra- and international cases that flows from the different ways in which the capability for democratic citizenship is secured in each of these arenas."
    At Vanderbilit, David Rosenberg (Yale) presents Nuisance-Value class Action Settlement Problem: Mandatory Summary Judgment.
    At Georgetown Richard Primus (Michigan) workshops Equal Protection and Disparate Impact: Round Three.
    At Florida State Jonathan Cohen (University of Florida) does The Culture of Legal Denial.

Sunday, March 23, 2003
Blogging from Brazil 2 It is about 2:00 a.m. in Rio de Janeiro. My colleague, Karl Manheim, and I spent the day at the meetings of the Internet Corporation for Assigned Names and Numbers here in Rio--spending most of the day working on a response to the "differentiated expansion" proposal outlined in a position paper issued by Business Constituency of the Generic Names Supporting Organization. The core idea of the position paper is that top level domains should be "taxonomized," i.e. that each new .com or .edu should have linguistic meaning. The Business Constituency paper argues, in addition, that there no new "unrestricted" top level domains should be created. Karl and I argue that this approach is both inefficient and anticompetitive. We will post our paper at tomorrow. In the meantime, it is time for me to grab some sleep!

Howell and Lewis on Presidential Agencies William Howell (Stanford, Political Science) and David Lewis (Princeton, Woodrow Wilson) have recently uploaded Agencies by Presidential Design, forthcoming in the Journal of Politics. Here is a taste form their abstract:
    Scholars have largely ignored one of the most important ways in which presidents influence the administrative state in the modern era, that is, by creating administrative agencies through executive action. Because they can act unilaterally, presidents alter the kinds of administrative agencies that are created and the control they wield over the federal bureaucracy. We analyze the 425 agencies established between 1946 and 1995 and find that agencies created by administrative action are significantly less insulated from presidential control than are agencies created through legislation. We also find that the ease of congressional legislative action is a significant predictor of the number of agencies created by executive action. We conclude that the very institutional factors that make it harder for Congress to legislate provide presidents new opportunities to create administrative agencies on their own, and to design them in ways that maximize executive control.
Get it while it's hot!

Balkin versus Buck--Update & Update to Update Jack Balkin & Stuart Buck have a very interesting debate going on Scalia's theories of constitutional interpretation and their application to affirmative action. Here are the posts:
    Balkin's opening move.
    Buck's demurrer.
    Balkin's plea in abatement.
    Buck's Sur-Reply.
    Balkin's Latest Rejoinder.
    Here is an excerpt from Balkin's latest:
      The basic point I am trying to make is not, as Stuart suggests, that Scalia is necessarily engaged in logical contradiction. There are certainly ways to strike down affirmative action laws even given the congressional history, and I talk about them in the casebook. Rather, my complaint is that Scalia is being hypocritical, because he has never, to my knowledge, discussed the historical issues, even though they are easy to learn about, and even though he states, to any one who will listen, that original understanding is the touchstone of constitutional interpretation. My problem with Scalia is that he speaks with the arrogant assurance of one completely convinced that he is in the right when he has not done the necessary research to justify his conclusions about the constitutionality of affirmative action.
    New: Buck replies again.

Sigler on Govier Check out Mary Sigler's fine review of Trudy Govier's Forgiveness and Revenge, get it here. Courtesy of the Notre Dame Philosophical Reviews.

Smith on Metaethics in Adjudication Dale Smith's article The Use of Meta-Ethics in Adjudication is just out in the Oxford Journal of Legal Studies. Here is an abstract:
    This article responds to Jeremy Waldron's claim that the truth or falsity of moral objectivism makes no difference to the arbitrariness, or otherwise, of adjudication (the 'no-difference thesis'). I start by outlining the way in which I believe objectivism and its opponents should be distinguished, before setting out Waldron's arguments in favour of the no-difference thesis. I then consider a number of ambiguities in that thesis, before criticizing several attempts by Michael Moore to respond to Waldron's arguments. Having cleared the way for a new consideration of this issue, I argue that-depending on which interpretation of them we accept-Waldron's arguments: (i) misrepresent the nature of the debate between objectivists and anti-objectivists; (ii) beg the question by asserting that objectivism is wrong rather than irrelevant; or (iii) rely upon an indefensible account of political justification. Finally, I offer an example of how the truth or falsity of objectivism can have implications for adjudication, by suggesting two ways in which it may affect the legitimacy of judicial review.

Saturday, March 22, 2003 My colleague, Karl Manheim and I have put up a website that collects information and resources relating to domain name policy in general and the expansion of the root in particular (i.e. new top level domains, such as .com, .org, etc.). Karl and I have just completed a paper titled gTLD Auctions: A Framework for Evaluating Domain Name Policy. Along similar lines, Milton Mueller and Lee McKnight of Syracuse University have posted their White Paper, The post-.COM Internet: A Five-Step Process for Top Level Domain Additions. ICANN's management of the root is a fascinating topic--it brings together issues from public choice theory, law & economics, and institutional economics--all in the context of the management of the global Internet. I will be blogging from the ICANN meeting tomorrow (Sunday) and all of next week. In the meantime, you can get the papers & additional infomration at

Catching Up Department Fred Dallmayr has a nice review of Jurgen Habermas Jürgen's Religion and Rationality: Essays on Reason, God, and Modernity. Get it here.

Downward Spirals Department Yesterday, Rick Hasen posted a thoughtful comment on the question whether the highly-partisan judicial selection process is in a downward spiral of politicization—responding to my earlier post—here.. Rick argues:
    [I]t is important to separate out stated motives and actual motives. Just as I don't believe Democrats who say they oppose Estrada because they don't have enough information, I don't believe Republicans who say that Democrats' moves are escalatory. They both make these claims for the same reason: trying to obtain political advantage.
Hmm. On the one hand, I don’t want to discount this possibility—after all rhetorical exaggeration is surely part of the daily give and take of partisan politics. But on the other hand, I can’t bring myself to concede Rick’s point—Republicans seem convinced that Democrats are escalating in public and private. Just talk to Republicans who are involved with this issue behind the scenes. The technology of belief may not be as flexible as Rick assumes; it may be that rhetoric—once you get the persuasion machine in gear—tends to change the beliefs even of insiders. Rick continues:
    Thus, Democrats can avoid responding to charges that they are imposing ideological litmus tests (they are, just as Republicans are---I am reminded of Sen. Helms blocking all Democrats to the 4th Circuit on grounds that the court did not need any more judges to handle its caseload), and Republicans can claim that Democrats are taking "unprecedented" action against a nominee. What is escalating now is primarily the rhetoric, though I agree that rhetoric alone may cause an escalation.
Perhaps, I am taking a longer-run view than Rick. Recall that I have conceded that many of the tactics Democrats are employing now, were employed by Republicans in the last round (during the Clinton Administration). But take the long view. It is, I think, indisputable that the judicial selection process is more politicized today than 10 years ago, 25 years ago, 50 years ago. Even in the short run, I think it is telling that the Washington Times story Republican strategy used “going nuclear” as the metaphor. If that isn’t escalatory rhetoric, I don’t know what is.
Monsters and Apparitions Rick also writes:
    I also think Larry's parade of horribles is a bit too horrible. We are talking about politicization on the few (but important) ideological issues that matter most to the parties---abortion, affirmative action, etc. In most cases heard by most federal judges, I continue to believe that ideology has little or nothing to do with the decisions they render. In that context, they are the virtuous judges that Larry writes about so eloquently
On this, I think we may be talking past one another. My point was about the bottom of the downward spiral—what happens at the end of a long period of escalating judicial politicization? Rick’s response goes to a different question: how far have we progressed down the spiral? And here is my take on that. I think that Supreme Court has become quite politicized. Does this affect their decision making in cases that don’t involve political hot button issues? I’m quite sure it does—although the effect is sometimes quite subtle. But I agree with Rick that in lots of cases, the decisions are not openly ideological. Instead, they are something that is almost worse. They are careless, poorly researched, not well thought out. One of the real costs of a politicized Supreme Court is that it doesn’t much care about the issues that aren’t political. One of the downsides of a politicized judicial selection process is that it is unlikely to yield Justices who are independent thinkers, who are deeply learned in the law, and who possess the virtue of judicial integrity. The Supreme Court is more thoroughly politicized than the Courts of Appeal and the District Courts, but how long will that last in the current atmosphere?
The Bottom Thinking about the bottom of the downward spiral has real utility. As I have argued previously, the downward spiral is the product of two factors: (1) asymmetrical perceptions—each side believes the other side is escalating, leading to further retaliatory escalation (going nuclear); (2) short-run thinking—each side is myopically focused on the next election and the next term of the Supreme Court and hence, both sides have lost sight of the long run—the enormous benefits produced by the rule of law. The point of my parade of horribles is not that we are at the bottom of the spiral today. Thank goodness, we are not even close. The point of thinking about the bottom is to remind ourselves that we do not want to go there. Both left and right share a long-run interest in maintaining the rule of law. Rick’s post suggests one way to de-escalate—tone down the rhetoric—on both sides. I’ve suggested another technology of de-escalation—look to the long run. There initial steps can lead to others. Republicans should withdraw the threat of “going nuclear.” Democrats should not blue slip and filibuster systematically. Both left and right can and should realize that de-escalation is in their own long-run self interest.
My Agenda Rick understands that I have a "radical" agenda. My hope is that the current downward spiral can serve as a wake-up call, a crucial perception-altering event. Further descent on the downward spiral is not inevitable. A depoliticized, neoformalist judiciary supported by a cooperative judicial-selection process has, in the past, been a stable cooperative equilibrium. Neoformalism is the norm in most advanced judicial systems outside of the United States, but there is no reason to believe that party politics in the United States are so different from those elsewhere that we are doomed to judicial politicization. The rule of law is not pie in the sky; it is a realistic option, inside the feasible choice set. A downward spiral can become an upward spiral. Both parties can come to realize that it is in their long-run self-interest to appoint virtuous judges. The cardinal judicial virtue is the virtue of justice—the disposition to decide in accord with the law and not on the basis of politics.
Hopes and Fears My hope is that we are close to a turning point—that when the talk turns to going nuclear, both sides may realize it is time to call off the war. My fear is that the long-run costs of politicization are not yet sufficiently vivid to transform the short-run orientation into a long-run orientation—that both sides must deploy their nuclear options before either side will “get it.”
Moves Toward the Final Death Spiral What if my fears are warranted? How might escalation continue? Rick has explored several possibilities, including the use of recess appointments to the Supreme Court and suspension of the cloture rules for judicial confirmations. Democrats would surely attempt to retaliate, and if they lack the means to retaliate now, they will bide their time and act when they regain control of the Presidency or the Senate. On the bench, intensely partisan political judges may come to believe that the blatanly political decision making is simply an ordinary and acceptable tactic in the struggle for political power. I see no reason to believe that the downward spiral will terminate any point short of what Rick has called "mutually assured destruction."

Conference on Kant's Philosophy of Value At the University of Hertfordshire Centre for Normativity and Narrative, there is a conference on Kant's Philosophy of Value today. Here are the speakers & topics:
    Katrin Flikschuh (Essex) Kant on the Value of Freedom Paul Guyer (Pennsylvania) The Ethical Value of Aesthetic Experience: Kant and Alison Peter Niesen (Frankfurt) Hedonism in Kant and Bentham Philip Stratton-Lake (Reading) Acting from Duty and Moral Value
The location is Room M6, Wall Hall Mansion, Watford Campus, WD2 8AT.

Blogging from Brazil 1 For the next several days, I will be blogging from the meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Brazil. These meetings are fascinating, and there are enormously important issues in the air. Here is a preview of some of the topics that I will be covering:
    Internationalized Domain Names--The Internet is a system of global cooperation between individuals, firms, non-profit institutions, and governments, but access to the Internet varies tremendously from nation to nation. One factor affecting the global digital divide is the domain name system. You can enter in your browser and get to the relevant website, but a similar feature is not available for character sets other than the Roman alphabet, Arabic numerals. This makes the Internet relatively less accessible for hundreds of millions or billions of people. This problem and its solution will be on the agenda next week.
    Expansion of the Root--Dotcom, .org, .edu, etc. are top level domains. The supply of such TLDs has been artificial constrained. My colleague Karl Manheim and I have just completed a paper comparing ICANN's management of the domain name system with FCC regulation of the broadcast spectrum and the telephone numbering system. Our paper argues that new top level domains should be added to the root by an auction mechansim. More on this soon.
    Internet Governance--ICANN is a strange beast. It is much like a regulatory agency, but it is a private-nonprofit corporation organized under California law. ICANN's governance procedures are byzantine and highly controversial. The most controversial event recently was ICANN's decision to hold global elections for seats on the ICANN board, followed by the decision to replace elections with a very complicated system. Again, more on this from the road!

Friday, March 21, 2003
Broken Windows The University of Chicago Chronical has a very nice short piece on Bernard Harcourt's Illusion of Order: The False Promise of Broken Windows Policing. Here is a taste:
    “An emphasis on misdemeanors may seem an appealing alternative to incarceration, but the outcome has often been repressive and costly,” Harcourt said. “A disproportionate number of minorities have been arrested, and police misconduct complaints have increased as stops, frisks and arrests for minor crimes have multiplied.” In Illusion of Order, Harcourt urged that much broader questions about punishment and criminal justice be asked rather than questioning whether strategies like broken windows policing do or do not work. “We need to ask how these methods for policing disorder shape our citizens, our civic culture and our social relations. Rather than viewing disorder as the cause of crime, perhaps we need to reexamine connections between crime and neighborhood poverty and stability. What is the relationship between order maintenance and our treatment of the unemployed? How will curfews and antiloitering ordinances affect our children’s intellectual and cultural development?”
Thanks to for the link!

Downward Spirals Department I'm on the Road to Rio with my colleague Karl Manheim, but I have just enough time during a layover in Miami to alert you to Rick Hasen's excellent post in our ongoing debate re the politicization of the judiciary. Surf here. Rick is relentless! I'll compose a reply in the air and post tomorrow. In the meantime, read Rick's eloquent, intelligent, and persuasive post.

24 Hour Hiatus There will be only infrequent posts to this blog for the next 24 hours, as I travel with my colleague Karl Manheim to the meetings of the Internet Corporation for Assigned Names and Numbers in Brazil. Tomorrow, look for a post on the ICANN meeting, the topics that I will cover from Brazil, and the importance of Internet Governance to legal theory. On Sunday, look for a post on important recent scholarship on Internet governance issues.

Downward Spirals Department Is the current battle over President Bush's nominations to various federal courts part of a downward spiral of escalating politicization of the judicial selection process? I've argued that it is, but my colleague Rick Hasen believes that Democratic tactics are simply tit for tat--responses to equivalent moves by Repubicans in the last round--when Clinton was President. In particular, Rick argues that Democratic use of blue slips is paralleled by Republican use during the Clinton years. See his post here. Let me concede that blueslipping, by itself, does not establish escalation, but add a comment. Both Democrats and Republicans percieve that their own moves are tit for tat, but that the moves of the other side are escalation. In other words, we face a problem of asymmetrical perceptions. This is one of the important preconditions for a downward spiral. If each side percieves that the other sides moves are escalatory, then each side sees escalation on their own part as the rational move. Hence, the Republican discussion of "going nuclear"--see Rick's original discusson and then scroll up in his blog for further posts. If I am right about the downward spiral, the consequences can be profound. The end-point of politicization is very grim indeed--with judges openly battling for poltical agendas, ordinary tort and contract cases turning into the opportunity for the distribution of pork, and the political branches retaliating against the judiciary when there are differences in party control. We don't want to go there.

More from SSRN More new scholarship on SSRN:

Maskin on Political Accountability of Judges Courtesy of the invaluable Economic Theory News, Erik Maskin (Institute for Advanced Study, Princeton) has made available his paper The Politician and the Judge: Accountability in Government, from the UCLA (economics) Theory Workshop series. Here is a taste from the abstract:
    Recent developments in long-established democratic systems have reignited the old debate about the proper degree of governmental accountability. We build a simple model that captures the major virtues and dawbacks of accountability: having the ability to screen and discipline public officials on the one hand while inducing them to pander to public opinion on the other. We study the optimal allocation of power between accountable and nonaccount-able branches of government. Our main …ndings are that (a) technical decisions are ill-suited to the political process, (b) accountability is less desirable when there is a substantial risk of oppression by the majority, or conversely when “pork-barrel pandering” leads to a tyranny of minorities, and (c) nonaccountable o¢cials should be given less discretion than their elected counterparts, but should be held more individually responsible in committee decision-making.
Appropos of the current intense interest in judicial selection, I can't help but note that Maskin's model assumes that judges are selected randomly.

Fiss Fest! The University of Miami is putting on a conference titled, Fiss's Way: The Scholarship of Owen Fiss, today and tomorrow (March 21-22, 2003). Here is the lineup for this very exciting event:
    Terence J. Anderson, Professor of Law, University of Miami School of Law Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale law School Aharon Barak, President of the Supreme Court of Israel Robert A. Burt, Alexander M. Bickel Professor of Law, Yale Law School Kenneth M. Casebeer, Professor of Law, University of Miami School of Law Jules L. Coleman, Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy, Yale Law School Stephen Diamond, Professor of Law, University of Miami School of Law John Hart Ely, Richard A. Hausler Professor of Law, University of Miami School of Law Owen M. Fiss, Sterling Professor of Law, Yale Law School Myriam Gilles, Associate Professor of Law, Yeshiva University, Benjamin Cardozo School of Law Robert W. Gordon, Chancellor Kent Professor of Law and Legal History, Yale Law School Morton J. Horwitz, Charles Warren Professor of American Legal History, Harvard Law School Samuel Issacharoff, Harold R. Medina Professor in Procedural Jurisprudence, Columbia Law School Vicki C. Jackson, Professor of Law and Associate Dean (Research), Georgetown University Law Center Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr. Center for International Human Rights, Yale Law School Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School Stanley N. Katz, Professor of Public and International Affairs; Faculty Chair, Undergraduate Program; Director, Center for Arts and Cultural Policy Studies, Princeton University Anthony T. Kronman, Dean and Edward J. Phelps Professor of Law, Yale Law School Frank I. Michelman, Robert Walmsley University Professor, Harvard Law School George L. Priest, John M. Olin Professor of Law and Economics, Yale Law School Judith Resnik, Arthur Liman Professor of Law, Yale Law School Thomas Scanlon, Alford Professor of Natural Religion, Moral Philosophy, and Civil Policy and Chairman of the Philosophy Department, Harvard University Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School Jonathan Simon, Professor of Law, University of Miami School of Law Irwin P. Stotzky, Professor of Law and Director of the University of Miami Center for the Study of Human Rights, University of Miami School of Law Susan P. Sturm, Professor of Law, Columbia Law School

Workshop Today At Vanderbilt's Legal Theory Workshop series, Maxwell Stearns (George Mason) presents A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine. Catchy title Max!

Thursday, March 20, 2003
Jus in Bello From the Independent today:
    The thinkers who developed what we now know as the "just war theory" made a useful distinction. They suggested two sets of precepts for when a war may be deemed moral. The first – which they called jus ad bellum criteria – set out ethically acceptable reasons for war: centred around lawful authority, just cause and right intention. We heard much of these in the run-up to war. But it is the second set of arguments which is relevant today. The notion of jus in bello sets out two principles to determine whether the method of fighting is just: discrimination – which asks who are legitimate targets – and proportionality – which asks how much force is morally acceptable. This reasoning may have its roots in medieval theology but sound reasons of realpolitik mean it should be kept in mind. If the Allies are to minimise the resentment that the war will cause in the Middle East, and among Muslims elsewhere, the level of bloodshed needs to be minimised. Such restraint will also help when it comes to persuading our unhappy European partners to become involved in the task, and cost, of post-war reconstruction. But, most importantly, when democracies do battle with despots it is essential they retain the high moral ground – which is part of what distinguishes the governments of George Bush and Tony Blair from the tyranny of Saddam Hussein.
Here is a collection of links to resources on just war theory on the web::

Off Topic Department Thanks to the ever-helpful Howard Bashman at How Appealing for a link to the BBC war reporter's blog. This should satisfy even Eugene's (of the Most Serene Volokh Blog Repubic) thirst for fresh news--see his post.

Grim Chuckles Department Cruise on over to Nate Oman's A Good Oman for a very nice bit of wit.

Downward Spirals Department Rick Hasen has been blogging recently on the mysterious Washington Times story indicating that the Republicans may "go nuclear" in response to the Democratic filibuster of Miguel Estrada. Another reader sent me a link to an NRO Outline Story indicating further escalation from the Democrats:
    Acting in concert, Michigan Democratic Sens. Carl Levin and Debbie Stabenow told the Judiciary Committee they will block the nominations of Richard Griffin, David McKeague, Susan Bieke Neilson, and Henry Saad to the Sixth Circuit Court of Appeals. In addition, Levin and Stabenow said they will block the nomination of Thomas Ludington to a seat on the U.S. District Court. That means the two senators are attempting to kill every Bush nominee from the state of Michigan.
I have been posting to the effect that moves like this are predictable, because we are currently in a downward spiral of retaliation--part of a very large pattern of politicization and polarization of judicial politics. The latest round of escalatory moves and threats is certainly more confirmation for the downward spiral hypothesis. My game theoretic explanation can be found here. By the way, the enormously valuable How Appealing (Howard Bashman) has been keeping all of us up to date on the Estrada nomination.
Post Script Hasen has a new post on the history of the recess appointments clause in the context of judicial appointments.
Post Post Script Rick replies to the above, arguing that the Michigan Democrats are engaged in simple tit for tat. Well, yes, it is tit for tat. But in a standard iterative prisoners dilemma, you don't expect tit for tat to continue, on and on, for many rounds (in the real world, years) of play. Is this an escalation? I don't know, but I think it is at least unusual to use the blue-slip procedure to block all Presidential nominees from an opposition party state. But as Rick notes in his response, Jesse Helms did this same thing during the Clinton Administration! Thanks Rick.

At University College London Today Michael Freeman delivers the J. A. C. Thomas Lecture A Time to Live and a Time to Die.

Barry on Inequality and Responsibility I just finished reading Brian Barry's workshop paper (Kadish, today). The central idea in the paper is what Barry call's the principle of responsibility:
    Let me refer in future to the underlying principle that is at work her as 'the principle of responsibility'. This is to be defined as the principle that unequal outcomes are just of they arise from factors for which individuals can properly be held responsible, and are otherwise unjust. I think that this principle is widely shared not only in the USA but also in other afflue nt western societies. Its appeal is probably a greater deal more broad than that. But for my purpose it is enough that the principle on which I am focusing is not an eccentric idea that I made up but has a lot of support. This makes it worth asking how far the principle of responsibility can really be used to justify inequalities of the kind and scale found in countries such as America and Britain, which are the two I know the most about.
If you are familiar with Barry's work, you will know where he is heading:
    [O]ne condition of equality of opportunity is equal access to wealth, which could be aproached by having high taxes on wealth and confiscatory levies on bequests and on substantial gifts, with the proceeds distributed equally to everybody at, say, the age of eighteen. Proposals along these lines (though on a more modest scale) have been made by academics in both the USA and Britain. Whether we regard them as within the realm of political possibility or not, no society that does not have such a system can begin to pretend to honour the principle of responsibility and the corresponding interpretation of equal opportunity.
It goes without saying that Brian Barry is one of the preeminent political philosophers of his generation.

Teaching the Ethics of War Courtesy of Arts & Letters Daily, there is a marvelous post on The Chronical of Higher Education Website from tomorrow's issue. Sharon E. French (U.S. Naval Academcy) posts When Teaching the Ethics of War Is Not Academic. Christopher Eberle (who also teaches at Annapolis) was recently at the University of San Diego Institute for Law and Philosophy for a debate with Michael Moore, David Brink, and Michael Perry. At dinner after the debate, Chris talked about the experience of teaching ethics to midshipmen--fascinating. Here is an excerpt from Shannon's essay:
    In the spring semester following the attacks of September 11, 2001, and the start of President Bush's "war on terror," I gave an unusual assignment to my students. I asked them to write essays detailing exactly why they are different from terrorists. The midshipmen were to spell out as clearly as possible how the roles they intended to fill as future Navy and Marine Corps officers are distinct in morally relevant ways from that of, say, an Al Qaeda operative. They dubbed the assignment "creepy," but gamely agreed to do it. After they had read their efforts aloud, I gave the project a twist. I had them exchange papers, and told them each to write a critical response to their classmate's paper, from the point of view of a terrorist. Then I had them read those responses aloud.
How did the midshipmen react? "The midshipmen found the entire exercise very disturbing because it forced them to reflect on that thin but critical line that separates warriors from murderers."

New on SSRN Here is today's collection of links to new and interesting papers posted on SSRN:

More Hasen on Estrada Zip over to Rick Hasen's Election Law Blog for his latest on the possibility that the Republican's will go nuclear on Estrada.

Balkin versus Buck Jack Balkin & Stuart Buck have a very interesting debate going on Scalia's theories of constitutional interpretation and their application to affirmative action. Here are the posts:

Thursday is Workshop Day It is a bit difficult to focus on the day-to-day given the war, but here is today's roundup:

Wednesday, March 19, 2003
Closer to Being on Topic Rick Hasen has an excellent post on a mysterious Washington Times story, suggesting that the Republicans may go nuclear on the Estrada Nomination.

Off Topic There is a very fine piece of journalism about Saddam Hussein in The Atlantic. Here is the link. This excerpt gives the flavor of the piece:
    On July 18, 1979, he invited all the members of the Revolutionary Command Council and hundreds of other party leaders to a conference hall in Baghdad. He had a video camera running in the back of the hall to record the event for posterity. Wearing his military uniform, he walked slowly to the lectern and stood behind two microphones, gesturing with a big cigar. His body and broad face seemed weighted down with sadness. There had been a betrayal, he said. A Syrian plot. There were traitors among them. Then Saddam took a seat, and Muhyi Abd al-Hussein Mashhadi, the secretary-general of the Command Council, appeared from behind a curtain to confess his own involvement in the putsch. He had been secretly arrested and tortured days before; now he spilled out dates, times, and places where the plotters had met. Then he started naming names. As he fingered members of the audience one by one, armed guards grabbed the accused and escorted them from the hall. When one man shouted that he was innocent, Saddam shouted back, "Itla! Itla!"—"Get out! Get out!" (Weeks later, after secret trials, Saddam had the mouths of the accused taped shut so that they could utter no troublesome last words before their firing squads.) When all of the sixty "traitors" had been removed, Saddam again took the podium and wiped tears from his eyes as he repeated the names of those who had betrayed him. Some in the audience, too, were crying—perhaps out of fear. This chilling performance had the desired effect. Everyone in the hall now understood exactly how things would work in Iraq from that day forward. The audience rose and began clapping, first in small groups and finally as one. The session ended with cheers and laughter. The remaining "leaders"—about 300 in all—left the hall shaken, grateful to have avoided the fate of their colleagues, and certain that one man now controlled the destiny of their entire nation. Videotapes of the purge were circulated throughout the country.

New on SSRN Here is the Wednesday roundup:
    Neil Walker (Institut Universitaire Europeen) uploads The Idea of Constitutional Pluralism. Here is a taste:
      Constitutional discourse has perhaps never been more popular, nor more comprehensively challenged than it is today. The development of new constitutional settlements and languages at state and post-state level has to be balanced against the deepening of a formidable range of sceptical attitudes. These include the claim that constitutionalism remains too state-centered, overstates its capacity to shape political community, exhibits an inherent normative bias against social developments associated with the politics of difference, provides a language easily susceptible to ideological manipulation and, that, consequent upon these challenges, it increasingly represents a fractured and debased conceptual currency. A rehabilitated language of constitutionalism would meet these challenges through a version of constitutional pluralism. Constitutional pluralism recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development.
    Neil's paper is forthcoming in the Modern Law Review.
    Sharona Hoffman (Case Western Reserve) offers Corrective Justice and Title I of the ADA. Here is a taste of Hoffman's paper:
      [A]mending the disability definition and establishing an exclusive list of covered impairments and condition categories associated with systematic discrimination would offer both fidelity to the statutory goal of corrective justice and workability as a legal instrument. It would promote inclusion of those who have been traditionally excluded and redistribution of resources to the most needy and deserving. It would provide more lucid guidance to plaintiffs who must decide whether they have viable discrimination claims, to employers who wish to avoid violations of the law and potential litigation, and to the courts. The new definition of disability would replace subjective assessment of the plaintiff’s functionality level with a much more concrete and accessible proof mechanism.
    Hoffman's paper will be out in the American University Law Review.

Legal History Corner Thanks to Timothy Sandefur for calling my attention to this story in the Los Angeles Times, which as Tim writes, "is about the discovery of dozens of "freedom cases" filed by slaves in St. Louis before the Civil War. There were a number of theories they argued, but most important was the argument--which found support in Blackstone and in an early case called Somerset v. Stewart, and was thus often called the "Somerset" theory--that once a slave was brought into free territory, he was automatically freed. This argument was obviously the big loser in Dred Scott v. Sandford."

Workshop Today At the University of San Diego, Eric Posner (Chicago) workshops Social Norms in Tort and Contract Law.

Ongoing Debates Department Political scientist Brett Marston continues the ongoing debate about the role of politics in judicial selection. Here is his post. Watch this space for a reply to Marston's intelligent remarks. And don't forget to check our Rick Hasen's contributions to this controversy in his excellent Election Law Blog.

Volokh on Iraq as a Precedent Eugene Volokh, author of The Mechanisms of the Slippery Slope (long version in HTML or PDF) has a piece in Slate on slippery slopes and the argument that the attack on Iraq would set a dangerous precedent. Here is a flavor of his argument:
    If all this is true, then our decision to invade Iraq will likely make a difference as a precedent only when five factors are simultaneously present: 1) The nation involved—or at least countries with decisive influence over that nation—seriously cares about international consistency or respects the moral force of our judgment, which probably means it is a democracy and likely our ally. 2) The nation's potential target really poses a serious threat, so the claim of "pre-emptive self-defense" seems plausible. 3) The threat isn't serious enough that the nation will just do what it thinks it must do regardless of concerns about consistency, legality, or others' opinion. 4) The nation feels that it can act with relative safety because the target isn't yet very well-armed. 5) The nation won't be dissuaded from its action by the cost and danger of war or by the pressure of allies who will likely continue to counsel against war in most cases.

Tuesday, March 18, 2003
Hathaway on Path Dependence Oona Hathaway's very, very smart Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System just went up as an abstract on SSRN. Here is a tasty morsel from the abstract:
    The doctrine of stare decisis thus creates an explicitly path-dependent process. Later decisions rely on, and are constrained by, earlier decisions. More important, the way in which history shapes legal outcomes corresponds to the three-fold division introduced in Part I. Because each legal decision increases the probability that the next will take a particular form, the common law exhibits increasing returns path dependence. Because the law changes through a process of punctuated yet historically constrained evolution, the common law exhibits evolutionary path dependence. And because the legal process involves sequential decisionmaking in a process marked by competing alternatives and multiple actors, the common law exhibits sequencing path dependence. Therefore, just as biological and social processes are constrained by history, the law is firmly guided by the heavy hand of the past.

Gaus Reviews Eberle Courtesy of the marvelous, this link to Gerald Gaus's review of Christopher Eberle's Religious Convictions in Liberal Politics. Here is the way it starts:
    Eberle’s target in this book is “justificatory liberals” — such as “John Rawls, Charles Larmore, Bruce Ackerman, Robert Audi, Amy Gutman, Thomas Nagel, Lawrence Solum” and me.
Whoa Nelly!

Catching Up Department I somehow missed Jack Balkin's upload to SSRN of The Proliferation of Legal Truth. What a mistake! Here is a taste:
    This essay describes an important aspect of law's power. Law has power not only because it sets prices and sanctions on behavior, but also because it shapes and colonizes human understanding. Through the creation of legal categories, distinctions, causes of action, institutions and devices, law is continuously proliferating legal truths into the world, making things true and false in the eyes of the law. This capacity to create truth and to make things real is the flip side of law's power. Law has power because it can make things true or false in ways that matter to us; conversely, law can make things true or false in ways that matter to us because it has power over us.

Schauer on Neutrality Fred Schauer--superscholar extraoridinaire--has posted a new paper to SSRN this morning. The title is Neutrality and Judicial Review. Here is the abstract:
    Since Herbert Wechsler's famous article, the topic of neutrality has played central stage in many debates about judicial review specifically and constitutional law generally. On closer inspection, however, it turns out that the heading of "neutrality" encompasses not one but four different debates. One is about principled adjudication, another is about decision according to rules, a third is about substantive neutrality, and the fourth is about the desirability (or not) of designing the institutions of judicial review without regard to likely substantive outcomes and without regard to the likely staffing of those institutions. This paper distinguishes these four conceptions of neutrality and analyzes each of them.
One hears a lot of talk about neutrality these days. (It was the subject of Bob Pushaw's provocative workshop at Loyola Marymount yesterday.) And here is a small taste from Schauer's paper itself:
    In most of the existing literature, contemplating the possibility of neutrality of substantive constitutional principles is as high up the ladder as one goes. Yet there is still a higher rung, and that is the rung of institutional design itself, the level at which we consider the largest questions of constitutionalism and constitutional design. And at this level there is still another debate about neutrality, a debate we can perceive by considering the following argument:
      In thinking about the very institution of judicial review, it is appropriate to take into account the current and likely future staffing of the judiciary, the current and likely future staffing of the other branches of government, and the current and likely future substantive proclivities of the population itself. Although institutions created at one time cannot easily be changed when political conditions change, this friction and path-dependence is merely something to be factored into a larger equation, and that equation is one in which it is entirely appropriate to conceive and design institutions, including the institution of judicial review, to serve political, social, moral, and ideological ends.
This paper is short and very rewarding. If you are working on constitutional theory, it would be a shame not to read it while it's hot.

Legality of the War Department Courtesy of Paper Chase, Australian law professors assert the legality of the imminent war. Here is a link. Here is the core of the argument:
    Much of the present debate on Iraq is premised on the assumption, shared by the authors of the joint letter, that the Security Council has not already endorsed the use of force. An opposite and plausible case can and has been made on the basis of the wording of resolutions already adopted. Resolution 1441 was carefully and deliberately framed in terms that could be read to permit the use of force. It was adopted under Chapter VII which allows the council to adopt mandatory action to deal with threats to the peace, breaches of the peace and acts of aggression. The resolution says that Iraq remains "in breach of its material obligations" under previous Chapter VII resolutions, has a "final opportunity to comply" and failing compliance will "face serious consequences". It explicitly recalls Resolution 678 (1990), which authorised "all necessary means" to restore peace and security in the region and Resolution 687 (1991) which established the conditions for the cease-fire after the Gulf War. By its terms, Resolution 1441 clearly viewed the use of force against Iraq not in isolation but rather as a continuation of measures taken in the wake of Saddam Hussein's illegal invasion of Kuwait. Following his defeat in 1991, his regime was saved by a cease-fire granted on the strict condition that Hussein would account for and destroy every one of Iraq's weapons of mass destruction, that he would cease repressing his people and that he would discontinue his support for international terrorism. Economic sanctions have already been in place for 12 years, but Iraq's "breach of its material obligations" continues despite "the final opportunity" provided by Resolution 1441. The "serious consequences" which he must thus face were understood to include the possibility of military force. Furthermore, even if Resolution 1441 were not read to authorise military action, the use of force against Hussein's regime at this time would be legally justified on the basis of the UN Charter and the right of individual and collective self-defence, realistically interpreted.

Resources on Just War Theory Here is an updated set of links to resources on the Web:

Monday, March 17, 2003
Sunstein on Moral Heuristics Cass Sunstein is working in the vineyard of heuristics again. This time, he has a very intriguing and original paper, Moral Heuristics, just up on SSRN today. He introduces the paper with the following claim:
    My goal in this essay is to suggest that moral heuristics play a pervasive role in moral, political, and legal judgments, and that they produce serious mistakes.
Sunstein has made a very nice move--drawing on the work by Daniel Kahneman and Amos Tversky and extending it to moral judgments. Let me jump right into the middle of the paper--where Sunstein discusses the possibility that the act/omission distinction is a moral heuristice. Here are two paragraphs that give you a pretty clear sense of where he is going:
    To say the least, there has been much discussion of whether and why the distinction between acts and omissions might matter for morality, law, and policy. In one case, for example, a patient might ask a doctor not to provide life-sustaining equipment, thus ensuring the patient’s death. In another case, a patient might ask a doctor to inject a substance that will immediately end the patient’s life. Many people seem to have a strong moral intuition that the failure to provide life-sustaining equipment, and even the withdrawal of such equipment, is acceptable and legitimate -- but that the injection is morally abhorrent. And indeed American constitutional law reflects judgments to this effect.22 But what is the morally relevant difference? It is worth considering the possibility that the action-omission distinction operates as a heuristic for the more complex and difficult assessment of the moral issues at stake. From the moral point of view, harmful acts are generally worse than harmful omissions, in terms of both the state of mind of the wrongdoer and the likely consequences of the wrong. A murderer is typically more malicious than a bystander who refuses to come to the aid of someone who is drowning; the murderer wants his victim to die, whereas the bystander need have no such desire. In addition, a murderer typically guarantees death, whereas many bystanders do no such thing. But in terms of either the wrongdoer’s state of mind or the consequences, harmful acts are not always worse than harmful omissions. The moral puzzles arise when life, or a clever interlocutor, comes up with a case in which there is no morally relevant distinction between acts and omissions, but when moral intuitions (and the homunculus) strongly suggest that there must be such a difference. In such cases, we might hypothesize that moral intuitions reflect an overgeneralization of principles that usually make sense—but that fail to make sense in the particular case. Those principles condemn actions but permit omissions, a difference that is often plausible in light of relevant factors but that, in hard cases, cannot be defended. I believe that the persistent acceptance of withdrawal of life-saving equipment, alongside persistent doubts about euthanasia, is a demonstration of the point.
I think this is very interesting, but I just don't know how far it gets us. Here is what I see as the problem. With other cognitive error theories we have a clear baseline for measuring error. But with morality, the baseline is really controversial. This is certainly true of the act/omission distinction. Lot's of super-smart moral philsophers argue endless about what the correct position--the baseline against which error would be measured--is. Cass recognizes this. Here is what he says at the very end of the paper:
    If the use of heuristics is harder to demonstrate in the domain of morality than in the domain of facts, it is largely because we are able to agree, in the relevant cases, about what constitutes factual error, and often less able to agree about what constitutes moral error. But it is overwhelmingly likely that rules of thumb, generally sensible but also likely to go wrong, play a role not merely in factual judgments, but in the domains of morality, politics, and law as well.
Don't be the last on your block to download this baby.

More on SSRN Here are this afternoon's new papers:

New Papers on the Net Here are new papers of interest to legal theorists, courtesy of SSRN and invaluable Economic Theory News:
    Larry Samuelson (Wisconsin, Economics) & Jeroen Swinkels (Washington University, Business) offer Information and the Evolution of the Utility Function. This very interesting paper investigates the differences between real and classical utility functions using information economics and evoluationary biology.
    Colin Camerer, George Loewenstein and Drazen Prelec post Neuroeconomics: How neuroscience can inform economics. Here is a taste:
      However, we believe that in the long run a more “radical” departure from current theory will become necessary, radical in the sense that it goes beyond the Quadrant I beliefs-desires model, and attempts to explicitly represent multiple brain mechanisms. Standard economic theories rely on an implicit assumption that controlled, cognitive processes (quadrant I of figure 1) are the key to economic decision making. Our theme in this paper is that radical models should respect the fact that brain mechanisms combine controlled and automatic processes, operating using cognition and affect. The Platonic metaphor of the mind as a charioteer driving twin horses of reason and emotion is on the right track—except that cognition is a smart pony, and emotion a big elephant.
    Barbara Ann Stolz uploads The Foreign Intelligence Surveillance Act of 1978: The Role of Symbolic Politics, forthcoming in Law & Policy.
    Blanche Grosswald (Rutgers, Social Welfare) posts The Right to Physician–Assisted Suicide On Demand, forthcoming in Law & Policy.

Monday Workshops Here is the Monday roundup of workshops from hither and yon:
    At Georgetown’s Colloquium on Constitutional Law and Theory Rebecca Scott (Michigan, law and history) presents The Right To Have Rights: The Claims-Making Of Former Slaves, Cuba, 1872-1909.
    At Loyola Marymount, Robert Pushaw (Pepperdine) workshops Why Are Liberals Embracing Shared Constitutional Interpretation? Here is a taste of Bob's intriguing and very provocative paper:
      Many left-of-center constitutional law scholars are caught in a trap of their own design. They have devoted their careers to glorifying the Warren Court, only to witness its conservative successors reject its liberal activism but embrace its arrogance. These academics now face the daunting task of explaining why federal judicial hubris is good only when it serves their own political and ideological agenda. This intellectual problem traces back to the 1960s, when law professors began to develop elaborate justifications for two critical ideas popularized by the Warren Court.

Sunday, March 16, 2003
Lessig on Spectrum Commons Larry Lessig has a nice column on spectrum commons in CIO Insight. Get it here.

Reactions Department Oswego State University political scientist Brett Marston offers a very thoughtful reaction to the recent exchange between Rick Hasen and myself on judicial selection. Here is a taste:
    Solum's recommendations . . . seem to me to be an academic version of the advice given by the Washington Post editorial pages: "be nice." This is not to slight Solum's intricate analysis, though. I do think that his attempt to model the judicial selection process as a prisoner's dilemma overestimates the gains that the political parties would get by nominating what he calls formalist judges. A formalist rhetoric, as it would be likely to play out in practice, probably is more persuasive to Republican constituencies anyway, and senators need to be able to defend their judicial choices to existing constituencies. Plus, Republican "formalism" isn't really formalist anyway. In addition, the political gains to be had by court-bashing, particularly in the south, should not be understated. So I'm skeptical of the prisoner's dilemma formulation, as I said before.
    By academic training as well as sentiment I find Rick Hasen's argument more persuasive, at least to the extent that he argues that the political nature of Supreme Court judging cannot be denied, and any change to the nominations process should take that into account. This is basically Chuck Schumer's position as well. Is it surprising that a Senate Democrat is pushing the "Court is political" argument? Not really.
Here is the full post. Marston is not a fan of the administration, but his analysis echoes thoughts that I usually hear from the right. One might think that Republicans generally favor neoformalist judges and Democrats neorealist judges. The question is, "why?" The debate can't really move forward unless we have an account of the Democratic interest in neorealism. There is a Republican answer to this question, basically that the rule of law stands in the way of the Democratic political agenda, but this answer seems somewhat facile. First, it assumes a short run view by Democrats--think about the Democratic critique of the Supreme Court during the pre-1937 New Deal Era. Second, it assumes that Democrats believe they will control the judiciary in the short run, but what is the evidence for that?

Not the Ideal Speech Situation Chris Bertram (author of the always delightful Junius) blogged today on the tragic assasination of Zoran Djindjic, the Prime Minister of Serbia, an extraordinary intellectual, and a former PhD student with Jurgen Habermas. Here is a profile courtesy of Fox. Grafitti near the murder site reads: "Who have you abandoned us to, Zoran?"--link.

Wu on United States v. Morrison I just caught up with Yale Law student Steven Wu's Monday post on United States v. Morrison. Bravo!

Saturday, March 15, 2003
Feasibility One of the most important, but least theorized, issues in debates over law and public policy concerns the question: what is the set of feasible choice? That is, which choices are realistic and which are utopian? How can we tackle this issue? Here are some ideas garned from recent writing by legal theorists:
    --Second Best Analysis. Contemporary legal theory is most familiar with the problem of feasible choices from the literature on the second-best, starting, of course, with R.G. Lipsey & Kelvin Lancaster’s famous article, The General Theory of the Second Best, 24 Review of Economic Studies 11 (1956). But this literature has little to say about the crucial question, what counts as a constrained variable? Why are some choices outside the feasible set?
    --Slippery Slopes. Eugene Volokh's superb article, The Mechanisms of the Slippery Slope (long version in HTML or PDF) provides another angle of attack on the feasible choice set question. Volokh is interested in how a choice at one time (t1) can constrain the feasible choice set at another time (t2). Eugene's article is very helpful, because it contains a rich, analytically-sharp analysis of the various mechanisms by which choices are constrained. Although this analysis is set in the context of slippery slopes, it actually has much wider application and would provide a helpful starting point for a general theory of feasibility. (BTW, there is a short version of Eugene's article here, but read the long version.)
    --Possible Worlds Semantics. Yet another tool for analyzing feasiblity suggested by one of all-around super genius Gottfried Leibniz's best ideas--the notion of a possible world. Here is the one-minute philosopher's version:
      Possible world semantics is a precise and illuminating way of talking about modal concepts, such as possibility and necessity. “Possible world” is the name philosophers give to a possible state of affairs. Frequently, when legal theorists speak of feasiblity or possibility, their statements are ambiguous. Possible worlds semantics provides a way of translating ambiguous talk about possibility into much more precise expressions. Here is how it works. We translate the modal assertion, “H is possible,” into the statement “H is true in some possible world.” In other words, if I say, “It is possible that Griffin is a Yankee’s fan,” that translates into “Griffin is a Yankee’s fan in some possible world.” Possible worlds semantics then allows us to distinguish the various senses in which we say that “H is possible,” or “J could have happened.” Let’s take the broadest notion of possibility, logical possibility. “J is logically possible” translates to “J is true in at least one possible world in which there are no logical contradictions.” Logicians and philosophers use the word “accessibility” to define sets of possible worlds with respect to various senses of possibility. Thus, the possible worlds in which there are no logical contradictions are logically accessible. The possible worlds that obey the laws of science are nomologically accessible. The possible worlds that are consistent with everything that we know are epistemologically accessible. The possible worlds that share the history of the world up to the present moment are historically accessible. The possible world that we now inhabit is the actual world. The worlds that are historically accessible from the actual world are the possible worlds that share the history of the actual world up until now.
    By precisely specifying what accessibility relationships are relevant to the determination whether a given choice is in the feasible set, we can make ambiguous talk about possibility quite precise.
    --Feasibility and Framing. The way an issue is framed frequently is relevant to what constitutes the feasible choice set. The most compelling example of this phenomenon is time frame. Here is one version. Some choices are outside the feasibility set in the short run, but inside the set in the long run. For example, in my recent discussion of political ideology in judicial selection, I argued that neoformalism was outside the short-run set of feasible choices, but inside the set in the long rune.
Why is all of this important? Applied legal theory is almost always constrained by considerations of feasibility. We always have an eye on the world of the second best, even when we are engaged in first-best analysis. But without clear analysis of feasibility, it is easy to have a debate without clash, a conversation without engagement. Precise specification of the constraints on the set of feasible choices should be mandatory in any second-best analysis of legal policy! Ok, Ok, I'll get off my soapbox.

Friday, March 14, 2003
Ongoing Debates Department Rick Hasen has posted his reply to my most recent contribution to our ongoing debate about political ideology and judicial selection. You can find his post here. Rick's posts on this topic have been very thoughtful, and I have learned a great deal from them. Thank you Rick.

More New Papers on SSRN Here is the roundup so far today:
    Pierluigi Cammarano posts Internet and the Censorship: Is it Legal (And Necessary) to Censor the Web?.
    James Anderson (Boston Colllege, Economics) and Oriana Bandiera (London School of Economics and Political Science, Economics) upload Traders, Cops and Robbers. Here is the abstract of this intriguing paper:
      Why does illegal trade often flourish without formal enforcement, but sometimes fail? Why do illegal trade-reducing policies often fail? Why do States often appear to tolerate illegal trade? A model of trade with cops and robbers provides answers. 'Safety in numbers' is a key element: the equilibrium probability of successful shipments is increasing in trade volume. Even without conventional fixed costs, safety in numbers implies scale economies which can explain the absence or robustness of trade subject to predation. Spilling over between markets, safety in numbers implies that illegal trade can foster legal trade and State revenue.

Thursday, March 13, 2003
New on SSRN There are some very interesting papers that have just gone up on SSRN. Here is the list:
    Abraham Bell (Harvard) and Gideon Parchomovsky (Fordham) upload Of Property and Anti-Property: The Perverse Virtues of Transaction Costs and Anticommons.
    Nickolai Levin (clerk to Judge Morris Arnold) has posted Constitutional Statutory Synthesis, forthcoming in the Alabama Law Review. Here is a taste:
      [C]onstitutional statutory synthesis is as good as or better than originalism from popular consent and superior competence premises. This is true with intentionalist theories because original intent is often unknowable and difficult to extrapolate through time, inviting criticism of judicial policymaking. In cases such as Alcoa, the New Deal constitutional change would provide a stronger basis for the changes to § 2 doctrine. Textualism is often indeterminate too, as BFP demonstrates. Looking to changed constitutional norms is less subjective and therefore more restrained than deeming one interpretation of “reasonably equivalent value” more plain than another.

Thursday is Workshop Day Here is today's roundup:

Wednesday, March 12, 2003
Catching Up Department I missed a very interesting paper by CARLOS E. Gonzalez (Rutgers, Newark) titled Popular Sovereign Versus Government Institution Generated Constitutional Norms: When Does A Constitutional Amendment Not Amend the Constitution?. Here is a taste from his abstract:
    [C]onstitutional provisions emanate from two distinct sources, and therefore are of two distinct classes, with one class hierarchically superior to the other. Under the extant constitutional orthodoxy, all constitutional provisions emanate from a single source -- We the People -- either via Article VII, the Constitution's ratification provision, or Article V, the Constitution's amendment provision. A major portion of this Article is dedicated to debunking the orthodox vision. An accurate description must admit that constitutional provisions emanate from two separate and distinct sources -- We the People and ordinary legislatures.
This is an intriguing idea. I've heard a version of this applied to the 11th Amendment, which arguably is the product of state legislators as self-interested institutions and not the product of "We the People."

New on SSRN Here is today's roundup:
    Thomas Baker (Connecticut), the prolific Alon Harel (Hebrew University, Jerusalem) and Tamar Kugler (Felt Center and Hebrew University, Jerusalem) have posted The Virtues of Uncertainty in Law: An Experimental Approach. There paper argues that uncertainty (either as to the cost imposed or likelihood of imposition) can increase the deterrent effect of any given sanction. This reminds me of a very interesting exchange I had with Charles Fried years ago. Fried argued for the Lon Fuller position that certainty was required for law to do its job, and I argued that radical uncertainty, even as to what conduct was punishable, might actually make the law instrumentally more effective.
    Larry Backer (Penn State) uploads Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of American Judges.

Dworkin on Interpretation Ronald Dworkin (University College, London & NYU) has another book in the works, and he workshopped a chapter at the Colloquium in Legal and Social Philosophy at UCL. The paper is entitled Interpretation, Morality and Truth. I haven't yet read the whole paper, but Dwokin seems to be aiming at a synthesis on his work on objectivity in morality with his master theory of interpretation. Here is a small taste:
    Each genre of interpretation is defined by a collective practice; each of these practices has a history and each is assumed by its practitioners to have a point or purpose. Any concrete interpretive claim begins in an assumption, most often hidden and unacknowledged, about what goal or goals should be attributed to the interpretive genre in which the concrete claim is placed. An interpretation of some object succeeds – it achieves the truth about that object’s meaning – when it best realizes, for that object, the purpose properly assigned to the genre. It is often controversial, to a greater or lesser degree, what the purpose of a genre should be taken to be; it is therefore controversial, in parallel degree, what the best interpretation is, in that genre, of any particular object.

Tuesday, March 11, 2003
Today's Workshops This is the second day of the Oxford Legal Philosophy Colloquium 2003. Here are the offerings:
    Véronique Munoz- Dardé (London) presents In defence of difference, with comments by Paul Bou-Habib (Oxford).
    Stephen Perry (Pennsylvania) delivers Harm, counterfactuals, and Compensation with comments by Andrew Simester (Nottingham).
    Klaus Günther (Frankfurt) offers Responsibility and democracy with comments by Tony Honoré (Oxford).
    James Penner (London) gives Interpretive concepts and essentially contested concepts with comments by Nicos Stavropoulos (Oxford).

Ongoing Debates Department: Political Ideology and Judicial Selection Over the past few weeks, Rick Hasen and I have engaged in an ongoing debate about the role of political ideology in judging. This is the fourth and final installment in my reply to Rick’s post from last Monday.
Restoring the Rule of Law This all began with my argument that judges should be selected for their possession of the judicial virtues rather than their ideology. Rick Hasen argued that the courts are already ideological, and neoformalism, the normative theory which contends that judges should decide on the basis of law rather than politics, is unrealistic. Rick argues that the best we can hope for is minimalism, political judging that is constrained. Yesterday, I offered an informal game theoretic model of judicial selection. That model predicted that a strategy of tit for tat could produce a stable cooperative equilibrium, with both sides appointing formalist judges. Under certain conditions, however, a downward spiral of retaliation might develop, with opposing parties engaged in an escalating war of politicization. Two factors that might trigger the downward spiral are: (1) Asymmetrical Perceptions—each side might exaggerate its own cooperativeness while missing cooperative signals from the other side, and (2) Short Sightedness--for various reasons, one or both sides might overvalue the immediate benefits of politicization and undervalue the long run benefits of the rule of law.
Once a downward spiral has set in, both sides might come to believe that a stable cooperative equilibrium is impossible.
De-escalation How might a downward spiral be stopped? One end point for a downward spiral is the bottom—the point at which the judiciary has been thoroughly politicized and judging has become a blatant struggle for political control combined with the dispensation by the judiciary of political rewards and punishment. But if we are not yet at the bottom, could a downward spiral be halted or even transformed into an upward spiral of cooperation—ending in a stable cooperative equilibrium? Can we de-escalate?
The Mechanisms of Cooperation To restore cooperation, the underlying causes of the downward spiral must be addressed. We must transform asymmetrical perceptions into accurate and shared belief. Short sightedness must be replaced with a view to the long range. If these transformations could be accomplished, the self-interest of both sides should lead to the adoption by both liberal and conservatives of a tit-for-tat strategy, which in the long run leads to the appointment of formalist judges as a stable cooperative equilibrium.
End the Propaganda War Is it possible for both the left and the right to get an accurate view of the politicization of judging? Here are some suggestions:
    Use Trusted Third Party Intermediaries.
    One mechanism might be to have a trusted third-party evaluate judicial candidates on the basis of their possession of the judicial virtues, especially the virtue of justice—the disposition to decide on the basis of law rather than political ideology. But in order for this strategy to work, the intermediary must be trusted. This makes is extremely important that the intermediary itself act (and be perceived as acting) in an apolitical fashion. And in order to insure that intermediaries be perceived as apolitical, it is crucial than neither side should lobby the intermediary. Although the ABA may have been perceived at one time as a neutral intermediary, it is clear that this perception is no longer shared by both liberals and conservatives. The creation of a new third-party intermediary is one possible technology for minimizing the problem of asymmetrical perceptions. If a new intermediary is created, it is vitally important that both sides refrain from lobbying the intermediary, because such lobbying is likely to undermine trust—whether or not the lobbying has any real impact or not.
    Critical Self-Evaluation Yet another mechanism for minimizing asymmetrical perceptions is for each side to engage in critical self-evaluation. This means that both liberals and conservatives need to look critically at their own judicial selections, and attempt to realistically access the extent to which they have nominated judges or justices who adhere to the rule of law in an even-handed fashion. Such critical self-examination need not be aimed at the general public. What is required is that the players on both sides of the judicial selection game disabuse themselves of the notion that, “We select fair and even-handed judges, but they select biased judges.”
    Transparency in the Judicial Selection Process In addition, asymmetrical perceptions are likely to be reinforced by asymmetries in the availability of information. In practical terms, it is the President and the nominee who have the power to reduce these asymmetries. Of course, the more politicized the candidate, the more likely it becomes that openness in the confirmation process will lead to opposition. But candidates who are strongly committed to the rule of law should benefit from a transparent confirmation process. Transparency is likely to increase the opposition’s belief that the candidate truly is committed to the rule of law. Candidates should be forthcoming, both making themselves available to answer questions and answering appropriate questions with candor. The use of handlers should be minimized and their role constrained.
    Back Off Attack Mode Yet another way to end the propaganda war is to back off the use of unfair or distorted attacks on judicial nominees. This takes me back to the starting point of my debate with Rick Hasen. Adam Cohen’s New York Times Op Ed was an unfair attack on Justice Deborah Cook. I still don’t know whether I support or oppose Justice Cook, but I do know that distortions of her record will reinforce the downward spiral of politicization that we are currently experiencing.
Look to the Long Run Ending the propaganda wars will not, by itself, be sufficient to halt the downward spiral. A second step must be taken. Each side must look past the impact of the judicial selection process on the next election or the decisions that might be made by the Supreme Court in its next term. In the long run, a downward spiral of politicization can only end badly. The rule of law provides a very great good, but the rule of law cannot be supported by a thoroughly politicized judiciary. We can only dimly imagine what it would be like if the thoroughly politicized judge were the rule and not the exception. Surely, the judiciary would lose credibility as an institution, and the Marbury v. Madison would be put back on the table. With or without judicial review, a politicized judiciary is an unreliable bulwark against tyranny and an untrustworthy guardian of civil liberties.
Minimalism as a Transition Strategy And this brings me back to Rick Hasen’s suggestion. Rick argued that my first-best solution, neoformalism, is unrealistic. Instead, he suggested an alternative strategy, which he called minimalism—a constrained form of political judging. Such constraint might well be an appropriate transition strategy. To the extent that both liberal and conservative judges are constrained, political actors become more likely to believe that cooperation in the judicial selection process can result in an equilibrium that benefits both sides. Moreover, I agree with Rick that a neoformalist big bang is not realistic. The downward spiral of politicization has progressed too far. Too many political judges have already been appointed. We cannot expect judges who lack the virtue of justice to forgo political calculation—that would go against the grain of their character. Restoring the rule of law is a long run project. Minimalism may very well be a strategy that could play a rule in halting, and even reversing the downward spiral.
But if Minimalism Is Realistic in the Short Run, the Neoformalism Is Realistic in the Long Run Suppose Rick is right. Suppose that minimalism is a realistic strategy for breaking the downward spiral, and reestablishing a stable cooperative equilibrium. Once we begin to move up the spiral, then the situation begins to change. If judges are not initially selected for their possession of the virtue of justice, they are at least selected for moderation and willingness to compromise. But why would there be a ceiling on the upward spiral? As trust is restored and both sides begin to focus on their long run self-interest, each side becomes more confident that appointing and confirm judges who are strongly committed to the rule of law is, in the long run, a win-win strategy. As such judges are appointed, the behavior of the courts begins to change, which in turn would lead to even greater mutual trust. The question is not whether the Supreme Court could transform itself into a neoformalist tribunal next term. The question is whether actions we take now could set the stage for a transformation of the judiciary in the long run.
Convergence So in the end, I think that my position and Rick’s position converge on several points. We agree that a continued downward spiral of politicization (Rick’s “mutually assured destruction”) should be avoided. We agree that in the short run, steps should be taken to reduce politicization, and that Rick’s preferred option, minimalism, is one such step. We agree that a neoformalist big bang is not a realistic option. But I am not sure whether we agree about the long run. Perhaps Rick thinks that minimalism is the best we can do. Perhaps Rick thinks that minimalism or something like it is not a second-best solution at all, that constrained politicization is actually better than neoformalism. Or perhaps, Rick simply chooses to focus his attention and his formidable intellectual skills on the problems at hand—leaving the long-run first-best questions for another day. Rick?

Monday, March 10, 2003
New on SSRN Here are some of the new papers on SSRN:

Monday Workshops Here is the roundup:
    Dick Stewart did an internal workshop today at NYU. Does anyone know the topic?
    At the Oxford Centre for Ethics and Philosophy of Law, Jonathan Glover (King's College) presents Dignity and violence: an empirical approach to ethics.
    And also today, at Oxford, the first day of the Oxford Legal Philosophy Colloquium 2003, includes:
      Larry Tempkin (Rutgers) presents Egalitarianism defended.
      John Gardner and Elisa Holmes (Oxford) deliver Two concepts of law.
      Samantha Besson (Oxford) gives us Conflicts of rights.
    More at Oxford tomorrow.
And let me know if I missed a workshop.

Ongoing Debates Department: Political Ideology and Judicial Selection Rick Hasen and I are engaged in an ongoing debate about the role of political ideology in judging. Rick’s latest contribution was made on last Monday. My reply began on Saturday, with a second post on Sunday, and continues today.
The Issue How should politics figure in judicial selection? I have argued that the first-best answer to this question is that we should select judges on the basis of their possession of the judicial virtues—especially the virtue of justice, the disposition to decide in accord with the law and not political ideology. Rick has not contested neoformalism as the first best solution—although he has reserved the right to do so. Instead, Rick argues that because the current Supreme Court is (and has been) highly politicized, we should move to a second-best solution, which he calls minimalism. Thus the issue is one of nonideal theory: how should we select judges once politicization has set in?
A Game Theoretic Approach A Noniterative Two Person Game One way to conceptualize this issue is from the perspective of game theory. We might imagine this game as a simple two-player prisoners dilemma. Let’s call the two players liberal and conservative. Each player has two options, politicize (appoint political judges) or formalize (appoint formalist judges). Let’s abbreviate L=liberal, C=conservative, P=politicize, F=formalize. So LP=the move where the liberal politicizes, CF=conservative formalizes, and so forth. If this were the standard (symmetrical, noniterative) prisoner’s dilemma, the payoff structure would be as follows:
{[LF,CF = L2,C2], [LP,CF = L3,C0], [LF,CP = L0,C3], [LP,CP = L1,C1]}
This is the class prisoner’s dilemma. From the liberal’s point of view, if the conservative formalizes, then the best move is to politicize. (Liberal judges will always advance the liberal agenda, but conservative judges will vote liberal for formalist reasons half the time.) If the conservative politicizes, then the liberal’s best move is to politicize—to avoid the situation where the conservative judges always vote liberal and the liberal judges vote conservative half the time for formalist reasons. The payoff structure is symmetrical, so both players will politicize. (By the way, Joseph Isenbergh recently made a similar point in his paper Activist Judges Vote Twice.)
Complexities Of course, the two person, noniterative model does not capture all of the complexities. A more realistic model would need to account for at least the following:
    --Judicial selection involves turn-wise and not simultaneous play. Democrats and Republicans alternate in the Presidency, and their turns have different durations, depending on the outcome of presidential elections.
    --Nomination and confirmation interact to produce judges. In an extended model, either the President or Congress could be liberal or conservative. Presidents could politicize or formalize at the nomination stage, and Congress can either confirm or not confirm nominees based either their status as formalist or political, and if political, then their status as conservative or liberal.
    --The decisional dispositions of judges actually vary on a spectrum, from very conservative to very liberal, and from very formalist to very political.
At this point, I will set aside formal modeling. Instead, let’s try to get an intuitive sense of the implications of the basic idea that judicial selection involves strategic interaction between ideological factions occupying roles in the political branches of government.
Tit for Tat Here is one possible lesson of a game-theoretic approach to judicial selection. Suppose that you are playing the judicial-selection game. The other side has moved first, appointing political judges. It is now your turn. Perhaps, you believe the first-best outcome is the rule of law. But if your move is to formalize, you get the worst of both worlds. There are too many political judges for the rule of law to prevail, but the formalist judges you appoint will sometimes vote with your opponent’s judges for formalist reasons. You don’t get the rule of law, and you don’t get the outcome you want. Now, it is possible that if your move this turn is to formalize, then your opponent will cooperate and also formalize when your opponent controls the selection process. But given that your opponent defected during the last round, you have no basis for trusting your opponent. Experiments using iterative versions of the prisoner’s dilemma game, suggest that the best strategy is tit for tat. If your opponent defects in round one, then you defect in round two. If your opponent then cooperates in round three, you cooperate in round four. If you play tit for tat, your player will eventually see the pattern, and begin to cooperate.
I Have Good News and Bad News What are the implications of our informal game-theoric analysis of judicial selection? There is good news and there is bad news.
The Good News First Here is the good news. If the rule of law really is a better outcome than a downward spiral of politicization, then, in theory and over the long run, it should be possible for a cooperative equilibrium to emerge. That is, liberals and conservatives should both appoint formalist judges. Tit for tat should lead to cooperation.
Now the Bad News If Rick Hasen is right, however, we have already spiraled down to the point where a cooperative strategy is, in Rick’s words, “totally unrealistic.” Why? What explains the failure to cooperate? In the actual world, of course, there are historical explanations. We can, however, give a game-theoretical explanation, focusing one two factors, asymmetric perceptions and short sightedness.
Asymmetric Perceptions For a variety of reasons, a downward spiral could develop. Cooperation requires trust, but the strife associated with partisan politics may undermine the basis for trust. In particular, each side is likely to perceive the other side’s judges as more political than would a neutral third party. Similarly, each side is more likely to perceive its judges as more neutral than would a neutral observer. Thus, both liberal and conservatives might simultaneously assert, “Our judges are only a little political, but yours are very political.” Given asymmetrical perceptions, it is possible that each side would characterize the same round of play as, “We cooperated, but they defected.” Leading in the next round to deliberate defection by both sides.
Short Sightedness The problem of asymmetrical perceptions can be exacerbated by another phenomenon, short sightedness. For a variety of reasons, one side or the other may apply a very high discount rate to payoffs beyond the current round of play. For example, one side may perceive that its electoral chances depend on the appointment of judges who are committed to outcomes on particular issues. Incumbents may not care about outcomes past the current round if they will no longer be playing. More simply, intense partisan strife may produce an irrational preoccupation with winning in the current round of play. Short-sightedness may result in one side or the other defecting from the cooperative strategy.
Downward Spiral The combination of short sightedness and asymmetrical perceptions could result in a downward spiral. If the spiral persists for several rounds of play, then both sides could rationally come to believe that a stable cooperative equilibrium is impossible. Under these circumstances, then the tit-for-tat strategy might give way to a doubling-up strategy. Each side might attempt to recoup its loses by doubling the bet—in other words, by appointing judges who are even more ideological and whose views are more extreme. This would accelerate the progression of the downward spiral.
How to Escape the Downward Spiral Tomorrow, I will suggest options for converting a downward spiral into a stable cooperative equilibrium. In other words, I will suggest how we might begin to transform a judicial selection process that is dominated by political ideology into a process that focuses on selection on the basis of judicial virtue. Tune in Tomorrow. Same Bat Time. Same Bat Channel.

Sunday, March 09, 2003
Ongoing Debates Department: Political Ideology and Judicial Selection Yesterday, I posted the first part of my reply to Rick Hasen’s recent thoughts on politics and judging—Rick’s post is here .
Minimalism versus Neoformalism Rick argued that my position, neoformalism (prior post here), is unrealistic. In election law cases (maybe all cases), judges will decide politically, so even if the rule of law is the first best solution, the expectation that judges will adhere to the rule of law is utopian. Rick argues that his position, minimalism, is the second best. Boys will be boys, and judges will be political. The best we can hope for with respect to politicized judging that is be reasonably constrained. Thus, Rick has me backed into a corner. If Rick is right, his position is realistic, and for that reason it can actually make things better. My position, that we ought to select judges who possess the virtue of justice—the disposition to adjudicate on the basis of law rather than political preferences—is utopian, at least, so Rick says. (For a developed statement of my position, jump to the download page here.) Moving in a neoformalist direction wouldn’t work and might actually make things worse.
Second Best Rick’s argument depends on a simple but important idea—the notion of the second best. The notion of the second best was developed in R.G. Lipsey & Kelvin Lancaster’s famous article, The General Theory of the Second Best, 24 Review of Economic Studies 11 (1956). The very general idea of the theory of the second best can be expressed as follows:
    Assume a system with multiple variables. Take the most desirable state the whole system could assume and the associated values that all of the variables must assume to produce this state: call this condition, the first-best state of the system and call the associated values of the variables, the first-best values. Now assume that one variable will not (or can not) assume the value necessary for the first-best state of the whole system: call this the constrained variable. Next take the next to the most desirable state the whole system could assume and the associated values of all the variables must assume to produce this state: call this the second-best state of the system. There are systems in which achieving the second-best state will require that at least one variable other than the constrained variable must assume a value other than the first-best value: call the value the second-best value.
Given this notion of second best, what precisely is Rick arguing? What variable is constrained, and which variables should therefore assume second-best values? Answers to the questions are crucial to evaluation of his argument.
The Possibilities It is not quite clear from Rick’s posts what answers Rick would give to my questions. This is quite understandable. We are, after all, blogging—not writing a series of law review articles. So consider two possibilities:
    Possibility One. Rick might be arguing that human nature is the constrained variable. That is, he might be arguing that it is impossible for judges to be virtues. Human beings just aren’t made so that they can become judges who decide cases in accord with law and put aside thier political ideologies. But I don’t think that this can be what Rick means for three reasons:

      First, Rick hasn’t produced any arguments for this proposition.
      Second, the experience of other legal cultures with constrained judiciaries suggests that judges can decide according to law. (Rick and I can argue about examples if he wishes to press this point.)
      Third, it seems unlikely that there is any inherent feature of human psychology that would preclude judges from deciding according to law.

    Let’s rule out Possibility One for now. We can come back to it, if this is Rick tells us that this is what he meant.
    Possibility Two. Perhaps, then Rick is arguing that it is the current set of Supreme Court Justices that lack the virtue of justice. If all the members of the current court suffer from the vice of results-orientation, then neoformalism is not a realistic option. If this is what Rick means, then I mostly agree with him. The court is politicized, and it would be difficult for the court to transform itself into an apolitical, rule-of-law oriented institution. It would certainly be difficult for this to happen all at once—a neoformalist “big bang” does seem unrealistic.
Perhaps Rick has some third possibility in mind. For the debate to move forward, however, it is very important for Rick to specify the constrained variable. Without specificity about which variable is constrained, second-best analysis is impossible. Let us assume, then, that Rick believes the constrained variable is the disposition of the current Supreme Court to make political decisions, particularly in election-law cases.
Non-Ideal Theory At this point, the issue is joined as a problem of non-ideal theory. Rick has reserved the right to contest my claim that the ideal system has judges with the virtue of justice, who decide according to law and not politics, but for now our disagreement focuses on a particular situation. How should we select judges when the judiciary (particularly the highest tribunal) has been thoroughly politicized? Rick and I share an important belief about this situation. It is not in equilibrium. Rick stated his worry by referring to “mutually assured destruction,” whereas I put the point by stating that “the rule of law is fragile.” We both believe that full-tilt, unconstrained politicization could lead to an undesirable state of affairs. So what should we do? Should we try to move toward first best? Should we attempt to stabilize the status quo? Should we try for a marginal improvement? Or are we doomed to a downward spiral of ever increasing politicization? This is a fascinating topic, and it will be the subject of my next post in this series. Tune in on Monday. Same Bat Time. Same Bat Channel.

Saturday, March 08, 2003
Betram on Commodification The ever interesting Chris Betram (Junius) has a really nice post on commodification. Chris notes that there are several commodification issues upon which opinion divides in a polar fashion:
    Oe such question is the following: "Is it morally ok for someone to march to the head of a long queue (for tickets for the theatre or football or whatever) and offer to buy another person's place in that queue?" Since the purchaser buys the place and the person they displace goes away or to the back of the line, the exchange isn't worsening any one's position.
    Respondents seem to break down into three categories: people who think it is just obviously ok, people who think it is just obviously wrong, and people who find themselves switching back and forth between perspectives.
Of course, this got me thinking. On the one hand, there is clearly a social norm against buying a place in a queue. Hence, the thought that it is obviously wrong. But why is there a social norm? Is there a justification for the norm? Does the norm maintain a sense of social solidarity and equality? Does it prevent envy and anger? There is an analogous issue with respect to ticket scalping. Scalpers pay students and others to stand in line for tickets, purchase the maximum allowed number, and then the scalpers resell the tickets at a higher price--substituting a price rationing mechanism for a queue rationing mechanism, and effecting, of course, a wealth transfer. But this practice is socially disapproved and, in some jurisdictions, actually illegal. Hmm.

Ongoing Debates Department: Political Ideology and Judicial Selection It all started with my post replying to Adam Cohen’s Op Ed attacking Justice Deborah Cook—a Justice of the Ohio Supreme Court nominated to a vacancy on the United States Court of Appeal for the Sixth Circuit. The main point of my reply was to correct distortions in Cohen’s account of Cook’s record—to my knowledge no one has denied that Cohen’s Op Ed was misleading at best. By the way, I have neither endorsed nor opposed Justice Cook. I just don’t know enough about her record to answer the relevant question: does she possess the judicial virtues? Is she a judge with deep knowledge of the law, practical wisdom, courage, and integrity? Most importantly, does she have the virtue of justice—the disposition to decide cases in accord with the law and not her personal political ideology? Adam Cohen’s Op Ed suggested that the relevant question was whether she tended to vote for big business or the little guy—irrespective of the legal merits. It was my reply to that aspect of Cohen's editorial that sparked my ongoing debate with Rick Hasen.
What Role Should Political Ideology Play in Judicial Selection? Here is what I wrote:
    I am concerned about Adam Cohen's attack on Deborah Cook, because I am concerned about the rule of law. If the current trend towards the politicization of the federal judiciary continues, then every judicial nomination (not just Supreme Court nominations) can become an ideological battleground. The nomination and selection process will become a strategic game, with each side seeking to create a third political branch.
My colleague Rick Hasen posted a reply that argued:
    [W]e already live in an era of both liberal and conservative judicial activism. We have a judiciary that is just another political branch.
And I responded:
    Rick is unduly pessimistic about the possibility of realizing or restoring the rule of law.
And if Rick is right that the judiciary is irretrievably politicized:
    Why have nine unelected individuals as a council of review?
Rick then replied by posing two hypos, one on the poll tax and the other on abortion. If the rule of law required that poll tax be upheld (on originalist grounds) and that Roe v. Wade be affirmed on stare decisis grounds, would I bite the bullet. I danced around a bit theoretically—characterizing Rick as a neorealist and owning up that I am a neoformalist, but my ultimate reply was “yes,” if the rule of law requires results we don’t like politically, the virtue of justice nonetheless requires that judges do what the law requires.
Rick's Latest Move Rick has replied in a very thoughtful and eloquent post which I urge you to read. Here is the link. The gist of Rick's argument is:
    my book shows the point through an exhaustive analysis of the most important election law cases from Baker v. Carr to Bush v. Gore. Maybe the Court has acted differently (in a more principled way?) in other areas; I don't know. In the election law area, I claim that both liberals and conservatives have deviated from text, history, or precedent to reach the results that they have wanted.
Rick backs up this assertion with plenty of detail in his post, and there is even more coming in the book. Although I have only a one-time conlaw professors knowledge of the cases, I can vouch for Rick's deep knowledge and intellectual integrity. I assume he is absolutely right about the cases.
What's Going On So what is going on here? Let me step out of role for a moment. The debate between Rick Hasen and myself falls into a classic pattern. We start with a particularized disagreement. In this case, I argued that opposition to Justice Cook on the basis of political ideology was wrong as a matter of political morality, whereas Rick believes that such opposition is appropriate. Rick then took me on. His reply was effective, because he used hypotheticals very cleverly, showing that my theoretical positon, neoformalism, leads to consequences that both liberals and conservatives wouldn't like--liberals cannot swallow the poll tax and conservatives have a similar intolerance for Roe v. Wade. My countermove was conceptual ascent. I moved the debate off Judge Cook and the current political scene and onto my turf--jurisprudence and abstract legal theory. Rick's latest reply is to move in the opposite direction. Rick is the master of the particular. When it comes to the Supreme Court's election law cases, hardly anyone is in the same league. If I were to get into the details of the caselaw, and attempt to show that there are principled justifications for the Supreme Court's election law decisions, Rick would trounce me. Rick's latest post ran away from my claims about general jurisprudence. And you guess what I am going to do next. I am going to run away from election law. I need to find a hook in Rick's argument that allows me to play the game of confession and avoidance. Yes, Rick, you are right about the election law cases, but . . .
The Crucial Move So here is the crucial move. Of course, you can't beat a normative theory with a bunch of cases. As Richard Epstein famously said, "It takes a theory to be a theory." (My post on this aphorism is here.) Rick knows this. He had to make a theoretical countermove. Here it is:
    I don't believe that we can realistically expect the Justices to keep out of the political process (or stick to text, history, and precedent) in the election law cases. That might be the best solution (I don’t say in the book and I’m not sure I'd say so in any case---since I'm not a jurisprudential theorist, my grand ideas are not worked out well as Larry's are), but it is completely unrealistic. So my normative theory is one of second best.
This is actually quite brilliant. Rick's reply accomplishes two things. First, it gives him a theoretically respectable reason for side-stepping the general theoretical debate (neoformalism versus neorealism). Second, it has a wonderful rhetorical resonance. Rick's move paints me as the ivory tower jurisprude and stakes his claim to be the realist in our debate.
What do I do now? So how do I get out of this? If I just retreat to the abstract theoretical debate, Rick wins the argument that he wants to win. If I descend to the level of particular cases, I will need to shift from election law to some other topic on which I have a knowledge edge (I would go to prior adjudication, where I wrote the book.) But at best, that would result in a tie. At worst, Rick still wins, because he can say, "In the really important cases, the law is now irredeemably political." Damn.
Rick Has Forced My Next Move There is only one way out. I need to take on Rick's argument that we should forgo discussion of first-best solutions (the virtue of justice and the rule of law) and move to second best solutions (minimalist political judging). Tomorrow, the debate continues. Tune in on Sunday. Same Bat Time. Same Bat Channel.

Rorty on Quine If you are interested in contemporary philosphy and its post-WWII history, you will want to read Richard Rorty's essay Analytic Philosophy and Transformative Philosophy. Here is a little nibble:
    Looking like a promising young philosopher at Princeton, where I got a job in 1961, was almost exclusively a matter of talking the new talk—of keeping up with the current journals and getting on the right preprint circuits. If you were hoping to get tenure, as I was, there was little percentage in being in being historically minded. This was partly because of the influence of Willard van Orman Quine. Quine was Carnap’s best student, the arbiter elegantarium of analytic philosophy, and everybody’s ego-ideal. He was openly scornful about the study of the history of philosophy. In his own student years, Quine had made a point of reading as few of the canonical texts as possible, and he recommended this practice to his students at Harvard. He believed the history of philosophy to be just as irrelevant to current philosophical inquiry as is the history of physics to current research in that field. Quine admired Carnap for having, when asked to teach an introductory course in Plato, responded that he would not teach Plato, because he would teach nothing but the truth.
As I was reading Rorty, I was struck by the enormous contrast between Quine and Rawls with respect to the history of philosophy. They were polar opposites, with Rawls urging his graduate students to engage deeply with the giants of political and moral philosophy, especailly figures like Hobbes, Kant, Roussau, and Mill. FFT.

Friday, March 07, 2003
Catching Up with Alon Harel on Judicial Review Alon Harel (Hebrew University of Jerusalem, Felt Center for Legal Studies & Harvard, Center for Ethics and the Professions) posted Rights-Based Judicial Review: A Democratic Justification on SSRN a while back & I have just caught up with Alon's very fine paper. Unfortunately, Alon has turned on the copy defeat mechanism in the .pdf file & I can't give you the juicy quotes, but here is the abstract:
    This paper investigates the accusation that judicial review is undemocratic. It argues that the alleged tension between judicial review and democracy fails to account for the fact that the content of rights and their scope depends on societal convictions and moral judgments of the public. Such dependence suggests that rights-based judicial review can be described as an alternative form of democratic participation.

New on SSRN Here is what's new on SSRN: Update: More New Stuff

Friday's Workshops Here is the roundup for today:
    At SUNY Buffalo, Betty Mensch delivers Religious Perspectives in Conceptualizing the Market .
    At Loyola Marymount, Karl Manheim (Loyola Marymount) and Lawrence Solum (San Diego, Visiting & Loyola Marymount) present gTLD Auctions: Formulating Policy for the Domain Name System. Here is a taste of our paper:
      The Internet has been mythologized, and the image of the Internet as a separate realm, somehow exempt from legal regulation and the operation of market forces is still a powerful and compelling ideal in the minds of many. Although this romantic picture may have an element of truth, there is much to be learned by stepping back and looking at root service as an ordinary service, provided by an ordinary organization, subject to the familiar laws of supply and demand. How can the provision of that service be organized so as to provide the greatest benefit of the public? How can the root be put to its highest and best use?
Email if you know of a workshop I have missed.

Thursday, March 06, 2003
War, Evolutionary Biology, Decision Theory, and the Psychology of Bluffing Via Arts & Letters Daily, the Telegraph has an interesting piece by Raj Persaud on the psychology of bluffing. Persaud speculates on its role in war. Here is a taste:
    [W]hy are we practically alone among all other species in fighting wars? This puzzle might have been answered by Prof Wrangham's latest research using an analysis of all Middle East military conflicts over the past 50 years. His results, published in the most recent issue of the journal Evolution and Human Behaviour, also bring a new explanation to the huge unpredictability that surrounds the effects of war. Previously, the difficulty in determining which side would win despite a dispassionate assessment of relative strengths has even led to the use of chaos theory to explain why battles are so hard to predict. Chaos theory relies on the idea of the "butterfly effect", that even slight imbalances in starting conditions lead to huge final variations in outcome because of the fundamental instability of the system. But in a sobering analysis for the potential combatants in a possible Iraq war, Prof Wrangham found that in prior Middle East conflicts superior forces were significantly more likely to lose battles where deception was used by an inferior strength enemy. Weaker forces tended to initiate battles by a factor of two to one, even though it would be expected that, all other things being equal, this should only occur 50 per cent of the time. It seems that the universal human tendency to suffer from positive self-illusions not only starts many wars but also increases the chances of successfully bluffing the enemy into believing he cannot or is unlikely to win and so it also increases the unpredictability of wars.

Hmm. Isn't correction for this sort of error the full time job of a whole lot of people?

Thursday is Workshop Day Here is the weekly roundup of Thursday workshops and colloquia from around the world:
    At Berkeley's Kadish series, Judith Butler (Berkeley, Rhetoric and Comparative Literature) presents What Is Critique? An Essay on Foucault's Virtue.
    At the University of San Diego, there are two workshops:
      Professor Ted Seto (Loyola Marymount) presents on evolution and intergenerational justice.
      Alan Schwartz (Yale) does Understanding MACs and MAEs.
    At the University of Texas, Gerry Cohen (All Souls) continues his visit at the superb Law and Philosophy Program coordinated by Brian Leiter.
    At Yale's Legal Theory Workshop, Joanne Freeman (Yale, History) presents The Field of Blood. Freeman's paper is fascinating. It's subject is violent behavior by members of Congress. Here is a taste:
      Between the 1830s and the early 1860s, there were well over 150 violent incidents involving congressmen, an ongoing series of threats, brandished pistols, challenges and duels, canings, fistfights, all-out brawls, and the occasional shooting. In the 1850s alone, there were at least 45 such rencontres; given the total number of days spent in session during that decade, this averages out to roughly one incident per month. Some of these incidents have been studied individually, anecdotally, or in small clusters. Many seem to have fallen through the cracks of the historical record—in several cases (particularly those that involved guns on the floor of Congress), because witnesses agreed not to discuss it. But the larger story of this pattern of political violence and its broader implications has not been explored—an ironic oversight given that many witnesses considered such violence to be the norm rather than the exception. As Benjamin Brown French, assistant clerk of the House, wrote to his sister in January 1839, “This session is like all other sessions that I have seen—except there has, as yet, been no fighting.”
    Michigan's Olin series has Kyle Logue (Michigan) with Insuring Against Terrorism -- and Crime.
    Boston University presents Peter Berkowitz (George Mason & Hoover) with The Lawfulness of the Election Decision: A Reply to Professor Tribe, coauthored with Benjamin Wittes of the Washington Post. Thanks to David Petron for the link & information about the coauthor.
Please email me if you know of a workshop I have left off the list.

Just War Theory This is an opinionated but not particularly political blog. The blogosphere is a strange land for me, because so many of the blogs that I admire are very political. And the political issue of the day is the war. So I was relieved when I thought of a way to post on the war that was in the spirit of Legal Theory Blog. My taking off point is a piece by Peter Steinfels in the New York Times, entitled Meeting a Moral Standard for War. The focal point is Michael Walzer's famous book on just war theory--really the starting point for contemporary legal and political thought about a topic for which the locus classicus is Aquinas. Stienfels writes:
    The criterion of "last resort" has been invoked by opponents of virtually every American military action in recent times, from the Persian Gulf to Bosnia, Kosovo and, most recently, Afghanistan; and one has to grant that the opponents can appeal to a kind of logic that makes their opposition unassailable. In the latest issue of The New York Review of Books, that logic is explained and challenged by Michael Walzer, the political scientist whose book "Just and Unjust Wars" has become a classic in the field. "Lastness," he writes, "is never actually reached in real life: it is always possible to do something else, or to do it again, before doing whatever it is that comes last." One more diplomatic initiative, one more peace conference, one more appeal to world opinion, one more nonmilitary form of pressure — the last resort is always just over the horizon. * * * In the real world, endless diplomatic initiatives can reach a point of diminishing returns, indeed of negative returns. Why would anyone strain the moral criterion of last resort, as a significant number of religious people do, in a way that makes it clear that virtually no military action, short of repelling perhaps a full-scale enemy attack already launched on the nation's territory, would ever meet it? The reason is not mysterious. A good number of those invoking the just-war criterion of last resort are in reality absolute pacifists opposed to all use of armed force. Or they are what their critics call functional pacifists, not exactly avowing principled pacifism but just never encountering an American use of force they could not denounce. Or they are what might be called isolationist pacifists, for whom nothing except being subjected to that full-scale attack would be irrefutable evidence that the moment of last resort had arrived. There is an old Latin maxim in legal and moral reasoning that seems pertinent here: "abusus non tollit usum," abuse does not nullify use. For those like Professor Walzer who value the just-war tradition as a disciplined way to think about the morality of war, the fact that some people have stretched the criterion of last resort to the breaking point in order to support their foregone conclusions does not invalidate it. The criterion, these just-war theorists say, is essentially a prudential one. Establishing what is or is not a last resort is a matter not of abstract mathematical demonstration but of practical, concrete wisdom, acquired through experience and reflection.
Steinfel's very reflective essay aims to rehabilitate the last resort argument, relying on Walzer's own conclusion that the argument still has play in the context of Iraq.
But There Is Another Crucial Dimension to the Issue And you won't like what I am about to say. I don't like it much myself. I am about to say something about authority. And I'm not going to say "Question Authority!" Yes, Walzer is right. Sound practical judgment is required to apply the last-resort criterion for a just war, but it is highly unlikely (no, it is just plain impossible) that each and every citizen's judgment will agree on the question as to whether the criterion has been met. Even if we all acted in complete good faith, even if we all had access to all the information, even if we were all pretty darn smart, we still wouldn't agree. We live in a pluralist democracy. We have different world views, different religions, we adhere to a variety of what John Rawls called "comprehensive conceptions of the good." Not only is unanimity impossible, even consensus is impossible if each citizen uses her own practical reason to answer the question, "Have we exhausted the alternatives to war?" So consensus in private judgment cannot be what is required. Public and not private reason must resolve this question. And in this case, public reason is specified by authority. See! I told you that you wouldn't like it. This argument goes way back. It is Hobbes's argument. And his systematic development of the argument against the authority of private reason is the core of the greatest work in the history of political philosophy--Leviathan. And in this case, Hobbes is right.
But What About Vietnam? Good question! Exactly the right question. Let me generalize it. What about the case where your private judgment tells you that authoritative public reason has made the wrong call? Shouldn't you protest? Go to Canada? Plant a bomb in an ROTC office? Here is what I wish I could produce. I wish that I could give you a knock down, crystal clear, self-applying, intersubjectively shareable, and definite set of criteria that would provide guidance where guidance is needed. Protest these wars, but respect public reason on those wars! Wouldn't it be nice? But it isn't available. Just as the last-resort criterion in just-war theory requires sound practical judgment, so practical judgment is required when we make the decision not to defer to public reason and stick to our private judgments about our nation's wars.
You May Think It Is Easy Whether you support the war or oppose it, you may think the judgment call is easy. If you oppose war with Iraq, I imagine that deep down you believe some of the things on this list: (1) the President isn't smart enough to make this decision; (2) the real purpose of the war would be to control Iraq's oil; (3) the real purpose of the war is personal hatred by the President of Saddam Hussein; (4) our national leadership is arrogant and ill-informed. If you suport the war, I think you are likely to believe some of the things on this list: (1) opponents of the war are utopian pacifists who wouldn't support any war, even against the Nazis or Stalin; (2) opponents of the war are ill informed and deluded by Iraqi propaganda; (3) opponents of the war hate America; (4) opponents of the war are motivated by the desire to undermine the President politically and would have supported the war if initiated by the prior administration. I don't believe any of the statements on either list. The fact that such beliefs are common is symptomatic of an unhealthy civic culture, a loss of mutual trust and respect, and the scarcity of the virtue of civility.
A Civil Discourse About the War I have no crystal ball and I am not an instapundit. But I think war is coming. How will we react as a nation? Will we rally round the flag in blind and unthinking patriotism. Will there be bitter and acrimonious debate? I don't know what will happen, but I do know that for which I hope. I hope for respectful civil discourse. I hope for more light than heat. I hope for more reason than passion. I hope for citizenship and not partisanship. Ok, ok, enough with the platitudes. Here comes the hard part. And I hope for respect for the authority of public reason.
Resources on Just War Theory Here are some just-war theory resources on the Web:And of course, Walzer's book!

Wednesday, March 05, 2003
Has Bernard Williams Joined the Frankfurt School? I've just had a chance to read Bernard Williams's paper (presented at University College today and downloadable here), a teaser for which I posted earlier today. The central new idea of the paper is called by Williams The Critical Principle. Here is his statement of the principle itself:
    Suppose that of two parties in the society, one is advantaged over the other, in particular with respect to power; and suppose that there is a story which is taken to legitimate this distribution, a story which is at least professed by the advantaged party and is generally accepted by the disadvantaged; and suppose the basic cause of the fact that the disadvantaged accept the story, and hence the system, is the power of the advantaged party: then the fact that they accept the system does not actually legitimate it, and pro tanto the distribution is unjust.
Williams then elaborates on the meaning of the principle:
    In any interesting case these parties (it is of course a simplification that there are only two of them) will not be arbitrary collections of individuals, but classes, social orders, or some such formation; very notably, they may be the two genders. The Critical Principle says that the story is "at least professed" by the advantaged party. The Principle will certainly apply very forcibly to a society in which the story is not believed by the powerful party. This is the familiar example offered, for instance, in some 18th and 19th century interpretations of religion as a racket controlled by priests and kings, and it appears equally in vulgar-Marxist images of conspiratorial capitalists. In those examples, however, the coercive element is so blatant that one hardly needs the Critical Principle to make the point. The interesting case – the one that concerned less vulgar Marxists – is that in which the advantaged and the disadvantaged parties both accept the story. The Critical Principle says, in fact, that the story is "generally accepted" by the disadvantaged party. This is designed to cover not just the case in which most accept it and a few do not, but also the case, which is the standard case, in which most of them mostly accept it: that is to say, they grumble quite a lot and may even offer a folk version of the Critical Principle, but in the end they accept, they bring up their children to accept, and so on.
Readers will immediately see a connection with Habermas, and Williams's discusses that connection in his paper. Williams's critical principle does without Habermas's central device, the ideal speech situation, not surprising given the dfficulty Habermas has encountered. What does the critical work for Williams is a causal relationship. The principle is engaged when "the basic cause of the fact that the disadvantaged accept the story, and hence the system, is the power of the advantaged party." This is quite interesting, but worries surface immediately. At most, the critical principle seems to give us a reason for doubt about legitimacy; otherwise, we have a standard case of the genetic fallacy. Williams, who has a really big brain, wouldn't miss this. He says:
    Even supposing that a causal judgement can be established, more seems to be needed if it is to have critical force. Certainly the mere fact that one party causes belief in another does not show that the belief is unsound. Indeed, the Critical Principle does not simply say that one party causes the other's beliefs, but that the power of the one causes the beliefs of the other. Nevertheless, some will press a "genetic fallacy" objection, to the effect that the soundness of the belief must be an entirely separate question from its causation: what matters is simply the merit of the supposed legitimation, and all the distinctive, causal, content of the Critical Principle is irrelevant.
One also worries about the phrase "basic cause." What cleaves causes that are basic from those that are not? Williams goes from here to his discussion of Habermas, which you should read.
Plug The workshop paper is a chapter from Williams's book Truth and Truthfulness. I highly recommend the chapter, especially to those who missed out on the intense but brief reception of Frankfurt-school style critical theory by Anglo-American legal theory in the 1980s.
Isn’t Critical Theory Old Hat? Well, yes. The CLS wars resulted in a general (not universal) rejection of the Frankfurt school by the legal academy, with some residual support for Habermas. But my judgment is that important things were learned from this encounter. I would guess that most theoretically inclined law students and junior law faculty members are unlikely to have read their Habermas, much less their Marcuse and Adorno. Time is precious, but some exposure to the Frankfurt school’s synthesis of Marx and Weber is essential to understanding the late twentieth century movement of legal thought. Ideas bantered at faculty lunch tables and workshops every day originated with the Frankfurt school. Habermas, Marcuse, and Adorno influenced critical legal studies which in turn set the stage for feminist jurisprudence and critical race theory—ideas that are important parts of the mix that constitutes one of the dominant styles of contemporary legal theory—eclectic left neorealism.
Reports, Anyone? If you were there for the real thing, live, with Ronnie Dworkin going at Bernard Williams, email!

Recent Uploads Department Nathan Oman (A Good Oman, oh, and also Harvard Law Review) uploads Statutory Interpetation in Econotopia. Here is a taste of Nathan's very interesting paper:
    As the public choice critique demonstrates, the concept of legislative intent is deeply problematic. Accepting legislative history as an efficient option market, however, means that the concept of legislative intent is beside the point. The question is not whether the legislative history reflects some imagined intent. Rather, it is whether the materials used by the courts reflect an efficient distribution of interpretive influence. Floor debate does not provide any incentive for members to consider the strength of their commitment to their particular interpretation. Offering such an interpretation is virtually costless, since it takes a member very little in terms of time or resources to insert a statement into the record. Furthermore, because normally their interpretation is not given great weight and is therefore not particularly valuable to other political actors, they have few opportunity costs. Sponsors and committee chairs also face few direct costs to promulgating a particular interpretation. However, all things being equal, under current judicial practice, their interpretation is much more valuable. Accordingly, they do face opportunity costs in offering an interpretation, namely the cost of forgoing the “sale” of the interpretation to another actor. Thus, there is often little reason to suppose that statements made by ordinary legislators in the course of debate reflect anything more than political hot air. In contrast, statements made by committees and sponsors are much more likely to reflect the strong preferences of some committed political actor.

Wednesday's Workshops There are some absolutely terrific workshops today. Here is the roundup:
    At the University of San Diego, Sai Prakash is doing an internal workshop. Sai what is your topic?
    At Florida State, Alfred R. Mele (Florida State, Philosophy) workshops Acting Intentionally: Probing Folk Notions.
    At the University of Texas, Brian Leiter's Law and Philosophy Program has Gerry Cohen (All Souls) both today and tomorrow.
      --Gerry Cohen is one of the most interesting figures in contemporary political philosophy. I first encountered his work in his justly famous book Karl Marx's Theory of History: A Defence. Most recently, Cohen is the author of If You're an Egalitarian, How Come You're so Rich? . Cohen's attack on Rawls's position that the basic structure is the subject of justice has given rise to a whole cottage industry, and this is surely one of the most interesting debates in recent political philosophy. Once again, a coup for Texas.
    At University College London's Colloquium in Legal and Social Philosophy, Bernard Williams (Berkeley and Oxford) presents Free Speech and Truth (download by clicking on the title).
      --Bernard Williams is the author of Moral Luck, Ethics and the Limits of Philosophy, and most recently Truth and Truthfulness. He is a giant of contemporary ethics. And because this event is at University College, Dworkin and Williams will be engaging in pyrotechnics of the very highest order. And by the way, The Philosopher's Magazine has an interview with Williams here.
Can you make London and Austin in one day?

Tuesday, March 04, 2003
New Today on SSRN Vincy Fon (George Washington, Economics) and Francesco Parisi (George Mason, Law) post The Limits of Reciprocity for Social Cooperation. And while you are at it, check out Dan Kahan's very interesting The Logic of Reciprocity: Trust, Collective Action, and Law.

The Pledge of Alliegiance The whole crew at the Volokh Counterhegemonic Blog Enclave is getting into the pledge of alliegance controversy. Posts by Eugene (the counterhegemon himself), also here and here, Jacob Levy, and Philippe de Croy. And there is a wonderful post by Jack Balkin over on Balkinization. Breaking News: The panel decision has been stayed according to AP courtesy of How Appealling Update: There is another nice post on the pledge over at Greg Goelzhauser..
By The Way . . . BTW, it is a sign of the times that a google search for the exact phrase "counterhegemonic enclave" produces only one hit! Could this be the start of a new version of googlewhack? What once in vogue ideas from legal theory now produce exactly one hit when googled?

Ongoing Debates Department: Political Ideology and Judging Rick Hasen replies to my Sunday post. Great Ceasar's Ghost! It's back to the drawing board for me. Watch this department for further developments later in the week.

New On SSRN Here is today's roundup:

Tuesday Workshops Here is today's roundup:Email me if I've missed a workshop at your institution.

LOL I did. And you will too, if you hop over to economist Brad DeLong's post of an except from Poundstone's Prisoner's Dilemma. Armen Alchian of UCLA plays RAND's John D. Williams in an iterative asymetrical-payoff variation on the classic game, and each recorded their reactions to the other's play. Courtesy of the always excellent Junius.


Monday, March 03, 2003
Oxford Legal Philosophy Colloquium 2003 John Gardner (Oxford) emails this morning re the Oxford Legal Philosophy Colloquium 2003. Here are some of the details that John provided:
    Oxford Legal Philosophy Colloquium 2003
    in association with the Oxford Centre for Ethics and Philosophy of Law
    Our 2003 Colloquium takes place on 10 and 11 March 2003. It is open to everyone at no charge (there may be a nominal on-the-spot charge for lunches). Please note that that each day's proceedings are at a different venue. Visit to download papers as they become available, and to keep an eye out for programme changes.
The speakers include: Larry Temkin (Rutgers)--Egalitarianism defended, John Gardner & Elisa Holmes (both Oxford)--Two Concepts of Law, Samantha Besson (Oxford)--Conflicts of rights, Jonathan Glover (London)--Dignity and violence: an empirical approach to moral philosophy, Veronique Muñoz- Dardé (London)--In defense of difference, Stephen Perry--(Pennsylvania) Harm, counterfactuals, and compensation, Klaus Günther (Frankfurt)--Responsibility and democracy, James Penner (London)--Interpretive concepts and essentially contested concepts. Wow! This should be great! I will post on some of the papers on the days of the colloquium.

Workshops Today Here is the roundup:

New on SSRN Here is this morning's roundup of what's new and interesting on SSRN:

Sunday, March 02, 2003
Ongoing Debates Department: Hasen on the Role of Ideology in Judicial Selection
This all got started with my post on Adam Cohen's Op/Ed attacking Barbara Cook. The main point of my post concerned the inaccuracies in Cohen's piece, but I also said:
    I am concerned about Adam Cohen's attack on Deborah Cook, because I am concerned about the rule of law. If the current trend towards the politicization of the federal judiciary continues, then every judicial nomination (not just Supreme Court nominations) can become an ideological battleground. The nomination and selection process will become a strategic game, with each side seeking to create a third political branch.
    My colleague Rick Hasen posted a reply that argued:

    we already live in an era of both liberal and conservative judicial activism. We have a judiciary that is just another political branch.

    And I responded:

    Rick is unduly pessimistic about the possibility of realizing or restoring the rule of law.

    And if Rick is right that the judiciary is irretrievably politicized:

    Why have nine unelected individuals as a council of review?

    Now Rick replies again:

    Fair enough, and scholars like Mark Tushnet have made the argument against judicial review along precisely these lines. As for whether "text, original meaning and the doctrine of stare decisis" are significant constraints, consider the following two questions to be determined by the new Supreme Court Justice applying neutral principles:

    1. You are back in 1966 before Harper v. Virginia Board of Elections: Should a poll tax be declared in violation of the Equal Protection Clause, which provides that no state shall deprive any person of equal protection of the laws? Original meaning and stare decisis suggest the poll tax is constitutional. (The best reading of history is that the equal protection clause was not meant to apply to political rights, and the earlier Breedlove case upheld poll taxes.) All but four states have overturned poll taxes.

    2. It is 1992 before Casey. You believe Roe v. Wade was wrongly decided, but you believe strongly in the principles of stare decisis.

    How should you rule?

    Egads, hypos! I became a law professor so I wouldn't have to answer these ever again.

    Let's Back Up, Way Up
    Rick has more to say, which I will get to in just a bit, but for now, let's back up and frame the debate. Rick and I disagree about some of the most fundamental issues in legal theory. So first let me define my position.

    Me: Neoformalism
    If you have a lot of frequent blogsurf miles, you will know that I am a neoformalist. What does that mean? Here is one way of thinking about contemporary neoformalism. In Hard Cases Ronald Dworkin argues that in a hard case, a judge must render the decision that best fits and justifies the law. Dworkin believes that in a hard case, the criterion of fit doesn't do much of the work. The judge looks at the possible outcomes (decision plus rationale) and rules out those outcomes that are inconsistent with the legal topography, the woof and warp of the law as a whole. I don't want to try to explicate the subtleties of Ronnie's elegant conceptual edifice here, so let's just say that Dworkin Prime (Dworkin's counterpart in a possible world that makes it easier for me to make my point) . . . Let's just say that Dworkin Prime believes in the loose interpretation of the criterion of fit. Outcomes must fit the law as a whole, but only loosely. Neoformalism has a different picture. A neoformalist judge tries to exhaust the criterion of fit, before moving to the criterion of justification. (Of course, the complete neoformalist story includes a lot more detail, e.g. the hierarchy of authority, and in consitutional cases, a story about the relationship between text, structure, original meaning, tradition, and precedent). In other words, the judge is obligated to get everything possible out of the effort to decide which outcome best coheres with the existing legal doctrines, before she can move on.

    Rick: Neorealism
    So what is Rick's position?

    On the tough questions, I just don't see text, original meaning, and the doctrine of stare decisis as either dispositive or necessarily the only correct bases upon which to decide such cases. Such decisions are inherently political.

    It would be unfair to pin Rick down to a general jurisprudence based on these remarks. (So, he has plenty of wiggle room.) But, it looks like Rick's position is a very familiar one. He is a neorealist or neoinstrumentalist. When he says "as either dispositive," I think he is making a descriptive claim--that existing legal materials do not determine the outcome of the case as a matter of the constituitive conventions that specify what can count as a correct legal outcome. When Rick says "the only correct bases upon which to decide cases," I think he is making a normative claim--that, even if the legal materials could resolve the case, it doesn't follow that they should resolve the case. And when he says: "Such decisions are inherently political," he is moving close to the central thesis of critical legal studies: Law is Politics! Of course, that is precisely the position that I am arguing is neither necessary (as a matter of fact) nor desirable (as a matter of political and legal philosophy.)

    Back to the Hypos. Rick's Strategic Move.
    This is wonderful. I get to explain my answer, before I have to commit to answering the hypos. Think how much frustration this would have avoided, if you could have done this as a law student. So Rick's hypos are very cleverly crafted. Hypo number one is the poll tax, and hypo number two is abortion. Rick frames hypo one so that the neoformalist has to say that the poll tax is constitutional, and hypo two so that the neoformalist has to follow precedent and reaffirm Roe v. Wade. Here is why this is such a clever argument. Most readers will think that the rule of law should give way in one of these two cases. Roughly, liberals will think that any legal theory that could uphold the poll tax is just intolerable, and conservatives will think the same about any legal theory that would require adherence to Roe on stare decisis grounds. So now, I am in a real dilemma. If I bite the bullet and say, "So be it, that is what the rule of law requires," then I will have a position that runs contrary to strongly held beliefs of both the right and the left. But if I try to argue that there are ways of getting to the desired result in either of these cases, then Rick is ready to pounce. My arguments will necessarily be brief, because this is a blog. Rick will be able to show that equally plausible arguments could be made on the other side. And notice, that if I go consistently left or right--saying poll tax bad, Roe good or vice versa--then Rick really has me, because then it looks like I am using neoformalism to rationlize the results that I really prefer for reasons of politics and ideology. Then, he will say, "See! Law is politics, after all." He would tell you, "Lawrence thinks he is a neoformalist, but he is really an instrumentalist--just like the rest of us."

    So now, I am sweating. What to do? Here is the obvious countermove: I can fight Rick's set up. I could try to show through long and complex arguments that the rule of law really did require that the poll tax be struck down, and/or that the rule of law really does require that Roe be reversed. But this strategy cannot work in the long run for two reasons: (1) If I fight off these cases successfully, producing knock-down arguments that get me out of these specific hypos, Rick will always be able to come up with more. And if I fight off the new hypos, then Rick can step back, point to the pattern of my arguments, and say, "Lawrence's arguments look neutral, but if you step back, you can see the pattern--which is really ideological." (2) Rick can always turn the cases from real cases into hypos, but suppose that your neoformalist approach really did require upholding the poll tax or adhering to Roe on the basis of precedent. Fighting the hypos is a losing strategy.

    Biting the Bullet
    So, it seems I must bite the bullet. I am forced to say that if the rule of law really does require adhering to Roe but that Harper v. Virginia Board was wrongly decided, then that is the right thing to do. If you disagree with these outcomes, then you can go through the normal political process--legislation to ban the poll tax and a constitutional amendment to overrule Roe. This may be hard, but who said that the right thing is easy. Readers may ask, "Why is the rule of law so important? Why should we want judges to decide according to law, rather than according to their ideologies?" (There is another version of the second question, "Why should we want judges to decide according to law, rather than acording to my ideology?," where each reader substitutes themselves as the referent of the possessive pronoun "my." But this second question answers itself, because no one could expect their fellow citizens to accept a principle of judicial decision that made one person the dictator.) This is not the right place to answer that question; I will post separately on that topic within the next few days, and then edit this post so that the link appears here.

    An A Ha Moment
    And now I see that I really didn't need to sweat at all. Because Rick's argument is internally inconsistent. On the one hand, he wants to argue that in the real important cases, the decision must (as a descriptive matter) be political. On the other hand, as he sets up the poll tax question, "Original meaning and stare decisis suggest the poll tax is constitutional." But you can't have it both ways. I wasn't really in a dilemma, but I was right to bite the bullet.

    Rick's Ultimate Position
    One of the reasons I was concerned about Adam Cohen's attack on Justice Deborah Cook is that I believe the Rule of Law is potentially fragile. Interestingly, I think that Rick may agree about this. He is one of the leading experts on election law, and if any case shows the fragility of the rule of law, it is Bush v. Gore. Rick continued in his reply to me:

    I believe there are ways for the Supreme Court to constrain itself, as developed in my book. The arguments depend upon both liberal and conservative activists pulling back from the brink of mutually assured destruction through writing more minimalist decisions.

    I think I agree, but I am not sure. What is a minimalist decision? Consider three possibilities:

    1. Minimialist decisions are decisions that that hew closely to the requirements of law. In the case, Rick and I are in agreement--at least with respect to election-law cases.

    2. Minimalist decisions are decisions that interfere minimally with the political process. In this case, Rick and I disagree, at least potentially. The rule of law is not the rule of politics. Sometimes the law requires interference with the political process; sometimes it doesn't.

    3. Minimalist decisions are decisions that compromise between the competing ideologies of the Justices. We might imagine this position as involving an intertemporal bargain between current and future versions of the Court. A norm might emerge to the effect that, "We won't go too far in our favored direction while we control the court, and, in exchange, you won't go too far when you control the court." In this case, our disagreement would be profound.

    Undoubtedly, I haven't done justice to Rick's true position. But however he formulates minimalism, I think it is fair for me to throw Roe v. Wade back at him. What is the minimalist position in Roe?

    Post Script
    Timothy Sandefur of the Pacific Legal Foundation writes that the most recent issue of Nexus is a symposium issue on the degree to which political ideology should matter in the judicial confirmation process, and that all of the articles are online here. Contributors include Tim, Erwin Chemerinsky (USC) and Roger Pilon (Cato).
    Post Post Script
    Rick Hasen replies here and I whine about it here.

Saturday, March 01, 2003
The Debate The last event at the Stanford Spectrum conference was a debate. Larry Lessig (Stanford) and Yochai Benkler (NYU) advocated a commons approach to spectrum allocation. Gerald R. Faulhaber (Wharton) and Thomas Hazlett (Manhattan Institute) advocated a property approach. The judges were Alex Kozinski, Harold Demsetz (Economics, UCLA) and nobel laureate Vernon Smith (Economics, George Mason). It was good fun, although this is one of the few moot courts where Kozinski did not take over. Perhaps Alex thought it would be interesting to see what the economists had to say.
Why this is important It all goes back to Coase, of course. His famous 1959 article on the Federal Communications Commission made an intellectually compelling argument against FCC regulation of broadcasting. Give it to the market! But since 1959, broadcasting technology has changed. With spread spectrum and frequency hopping technologies, it is possible for multiple users and services to share the same spectrum. It is no longer clear that bandwidth chunks represent the efficient form of utilization for the spectrum space. Ah, you immediately see where this going. Coase again! Why won't the market reach the optimal allocation? Spectrum owners will just trade to optimum. And you can already guess what Lessig and Benkler said in response. Transaction costs. If the spectrum is divided among hundreds or thousands of players, it may be quite difficult to make a market that will reallocate the spectrum at costs lower than a commons. And I'll bet you know what comes next. A commons isn't really a free for all. Etiquette or protocols that eliminate interference need to be negotiated, or some users will hold others hostage with interfering uses. So there will be transaction costs with a commons regime as well. Which system will more efficiently reach the optimum? No one had a knock down argument.
Barnett's Important Observaton Randy Barnett (Boston University) watched the live feed, and has this very important observation. This wasn't really commons versus property. It was property versus property. The real competition is between two different property regimes. One regime grants rights to the owners of devices (phones, wifi cards, and relay stations) to use their property free from interference. This model emphasizes control over physical resources. The other regime has the government grant a right to "spectrum owners' to stop the use of devices by owners. The model emphasizes control over the spectrum. These are both property regimes. Lessig wants to call the first of these two regimes a commons, but that is completely misleading. In fact, the first regime is the traditonal property rights regime, with the least government interference in the market. The second regime is a nontraditional property rights regime; with government interfering with traditional property to create new kinds of property rights. Most of the audience and propably the members of the panel thought that the "property side" won. But if you listened very carefully to Smith and Demsetz, it sounded to me like they had moved very close to the traditional property model. This was, in substance, but not in form, the Lessig/Benkler position. Read Barnett's Reds in Suits to get a sense of his position on the analagous property versus property analysis of debates over intellectual property rights.
And one more thing . . . Yochai is one smart dude.

Commons versus Property The Spectrum conference today at Stanford has been fascinating. The conference was framed in terms of a debate between two options for spectrum policy. The first is a property regime, essentially to auction off the spectrum. Evan Kwerel & John Williams presented their paper entitled A Proposal for Rapid Transition to Market Allocation of Spectrum. The other approach, championed by Larry Lessig and others, is to create a commons. What about interference? New technologies may allow multiple broadcasters to use simultaneously occupy the same spectrum slice (or to hop between slices). No one defended the "beauty contest" approach to spectrum allocation that prevailed for the first several decades of broadcast regulation, with the FCC making case-by-case public interest determinations as to which uses are the best uses. One theme that emerged from several of the comments is that the choice between property and commons need not be binary; both models may exist side by side.

Junius Is One Today Chris Betram's excellent blog Junius (and permanent link on the sidebar) is one today. I began blogging very tentatively, quite unsure of the demand for a blog that focused on legal theory. Junius is one of the blogs that convinced me to continue. It offers thoughtful, interesting, well-crafted posts on a variety of topics of real intellectual interest. Thank you, Chris.

Blogging from Stanford Today Today, I am blogging from the Spectrum Policy: Property or Commons at Stanford. Internet access may be difficult, so there may be one big post at the end of the day.

Google Problem: Google has been sending you to the February Archive of Legal Theory Blog. To get to the latest posts, click here.