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

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Wednesday, April 30, 2003
Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts
    Let me begin with a story, part fact, part fancy. Let’s call it . . .
    A Tale of Two Law Clerks Like all good postmodern tales, this one begins out of sequence. So let’s . . .
      Fast Forward--The Year: 2035. The Place: Washington, the 20th Floor of the New Supreme Court Office Building.
      The clerk sat before the desk. On the other side, gazing out the window at the Mall, sat the Justice, white hair and deeply lined black face--at 93 years of age, still hale. It was the clerk’s first day, and she worked up the courage to ask a question. Two of her colleagues sat nervously beside her. “Your honor,” she began, “can you tell us about life tenure. I mean, Professor Oman told us about the Crisis of ’03, but you actually lived through it. Is it true that you are the only federal judge who still has life tenure?”
      “Not yet,” the Justice laughed. “Jeff Sutton is still technically on senior status. But almost.” He turned away from the clerk, and stared out the window at the black obelisk occupying the space where the Capitol once stood. “I know that people say it started in ’03. Nate, er, your Professor Oman, probably knows more about the political part of that than I do. It can be pretty isolated here.” Justice Clarence Thomas swiveled and faced the clerk, “And anyway, it really all started back in 1985, when the Ninth Circuit decided a case called United States versus Woodley. It was an en banc and in those days that meant something. Woodley, you know, held that recess appointments to federal courts are constitutional, and boy did that become important. You see . . .”
      Reverse--The Year: 1985. The Place: Los Angeles, the 12th Floor of the Old United States Courthouse.
      The clerk sat before the desk. On the other side, gazing out the window at the mountains outlined in the smog sat the Judge, a vigorous and alert man in his 50s. The clerk was in the office to get an assignment. It was early in his clerkship, and he was eager and just a bit nervous.
      Woodley, said the Judge. “I’d like you to work on United States versus Woodley. It’s gone en banc, and the Court has voted to reverse the panel decision. My decision!"
      “What’s it about?” asked the clerk.
      “It’s about whether Article III of the Constitution means something,” answered Judge William Norris. “And I think it does. It’s about whether judges without life tenure can serve on Article III courts. And I think they can’t. Here is what happened . . . ”
      Before I go any further, I need to make a disclosure. I was the second clerk. I drafted William Norris’s dissenting opinion in United States v. Woodley. That fact makes it difficult for me to be completely objective about the question that I feel compelled to address in this post: Is it constitutional for the President to make a recess appointment to an Article III Court? In 1985, I believed that the independence of the federal judiciary served a crucial constitutional function, and I still believe that today. In 1985, I saw that it was not easy to make out the case that recess appointments to the judiciary are unconstitutional; those difficulties loom even larger today. I will do my very best to be objective, but you should know that I have been thinking about this issue for almost 18 years, that my work is at stake, and that my pride is on the line. I will return to our Tale of Two Clerks at the end of this post, but for now, on to the analysis!
    The Constitutionality of Recess Judicial Appointments Let’s do it this way: first text, then history, then function.
      Text The question as to whether recess appointments are constitutional implicates two provisions of the Constitution--the recess appointments clause and Article III. The best way to begin is simply to lay out the text. Then we can move to interpretation.
        The Recess Appointments Clause: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2, cl. 3.
        The Good Behavior and Undiminished Compensation Clauses: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." U.S. Const. art. III, § 1.
        What do these clauses mean? When I drafted the dissenting opinion in United States v. Woodley, here is what I thought. The usual understanding of Article III, Section 1, is that it confers life tenure on Article III judges. From that fact, a corollary could be inferred: the good behavior clause prohibits anyone without life tenure from serving as an Article III judge. Using similar reasoning, we could infer from the guarantee of undiminished compensation a prohibition on anyone whose compensation might be diminished from serving as an Article III judge. Recess appointees lack life tenure and Congress has not guaranteed them undiminished compensation--in fact, Congress has tried to deny some recess appointees any compensation at all. Therefore, the text of Article III, Section 1, prohibits recess appointees from exercising the judicial power of the United States.
        But what about the recess appointments clause? That clause applies to "all Vacancies that may happen during the Recess of the Senate" and thus, the recess appointments clause would appear to apply to judicial vacancies as well. How can we reconcile the language of the two clauses?
          --General versus Specific. We could try to argue that one clause is more specific than the other, but this stratagem is of no avail. Article III is specific to judges, but makes no mention of vacancies. The recess appointments clause is specific as to vacancies, but makes no mention of judges.
          --Absolute versus Qualified. We might try to argue that the recess appointments clause is absolute, and therefore, the recess appointments clause must give way. But this argument does not work either. The recess appointments clause says "all vacancies" and therefore is every bit as unqualified as is Article III. In fact, the recess appoints clause by using "all" seems to have a bit of an edge on the basis of this argument.
        Neither of these tried and true techniques of textual adjustment will do the trick. Is there any other way to reconcile the two clauses. Here is an interesting fact. The argument began with the assumption that Article III grants life tenure to federal judges. But it doesn't. All Article III does is grant tenure during good behavior. In order to determine the meaning of the good behavior clause, we need to construe it intratextually by juxtaposing it with the impeachment clause. Let's take a look at that now:
        The Impeachment Clause: The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. U.S. Const. Article 2, § 4.
        The guarantee of life tenure for confirmed Article III judges results from the operation of the good behavior clause with the impeachment clause. Read together they lead to the inescapable conclusion that once confirmed an Article III judge cannot be removed except by impeachment--and hence, confirmed Article III judges have life tenure.
        But what about recess appointees? Once again, we can proceed intratextually, adding now the recess appointments clause to the mix. Recess appointees have terms that are guaranteed through the end of the next Session of the Senate, because they are civil officers of the United States, they may only be removed before that date by impeachment. This interpretation reconciles the three clauses. The good behavior clause interacts with the impeachment clause and the recess appointments clause to produce a consistent and coherent meaning for the text of all three provisions.
        Hold your horses! What about the corollary of the good behavior clause? Doesn't that prohibit anyone without life tenure from serving as an Article III judge? I wish it did. But here is the problem. The corollary isn't anywhere in Article III. The good behavior clause is it. That's all she wrote. The corollary accounts for life tenure for confirmed judges, but results in a direct collision between two clauses, if it is applied to recess appointees. The alternative interpretation that I have offered here accounts for life tenure, and makes the constitution consistent. The text of the Constitution does not support the proposition that recess appointments are unconstitutional. When I drafted the dissenting opinion in Woodley, I finessed this problem by arguing that the text was inconclusive. I still believe that. By itself, the text does not close the door on the argument that recess appointments are unconstitutional. We still need to consider history and function.
      History What about the history of recess appointments to the judiciary? History plays two distinct roles in constitutional interpretation. First, history is a guide to original meaning. Second, history can establish a constitutional tradition, and hence is a guide to the values we summarize by the phrase, the rule of law. Both uses of history are relevant to the constitutionality of recess appointments to Article III courts:
        Original meaning. Judge Norris's dissent in Woodley argues that there the contemporaneous writings of the framers and ratifiers do not provide evidence of any specific intent with respect to the interaction of Article III and the recess appointments clause. I stick by that conclusion today. But there is another piece of evidence that gave me fits when I was drafting the Woodley dissent. The first President, George Washington, made recess appointments to the judiciary. Here is a quote from the majority en banc opinion:
          In 1789, shortly after ratification of the Constitution, George Washington, who had served as President of the Constitutional Convention, exercised his power under the recess provision. During the recess between the sessions of the First Congress, he conferred three recess district judge commissions. 30 The Writings of George Washington, 457-58, 473, 485 n. 75 (J. Fitzpatrick ed. 1939). At the time of these appointments, Edmund Randolph and two contributors to The Federalist, Alexander Hamilton and John Jay, served as members of President Washington's Cabinet. There is no evidence that they doubted the constitutionality of the recess appointments. Moreover, the district court judges were confirmed upon the return of the Senate without objection to their recess appointments. 1 Executive Journal of the Senate 38, 40 (1790). It is further noteworthy that President Washington's recess appointments of Justice Johnson in 1791 and of Chief Justice Rutledge in 1795 went unchallenged
        The Supreme Court has been fairly consistent with respect to this sort of evidence about early historical practice and for good reason--in some ways it gives us the best possible evidence about the original meaning of the Constitution.
        What argument can be made in reply? Here is the relevant text from Judge Norris's dissent:
          In the case at hand, the historical record fails to inform us whether that the Framers considered the possibility that recess appointments could violate Article III. Indeed, the majority is careful to observe that these appointments by President Washington were made without objection or apparent consideration of the potential conflict with Article III. This blank record stands in sharp contrast with the full record of plenary consideration given by the First Congress to the First Amendment implications of appointing a legislative chaplain. Thus, the early historical practice of recess appointments to the judiciary has not been "infused with power" by the considered judgment of the Framers. As Marsh suggests, such a practice is entitled to less deference than a practice that we know was "considered carefully" by the Framers. Marsh, 103 S.Ct. at 3335. Moreover, the first legislative chaplain was appointed by the very same body-- the First Congress--that proposed the Bill of Rights. There is no reason to credit George Washington with any special insight into how the Framers intended the recess appointment power of Article II to interact with the salary and tenure provisions of Article III.
        Not bad, considering what there was to work with. But look at the moves that the Woodley dissent was forced to make. First, the dissent relies on the fact that no one objected. It is absolutely true that this might mean that a grave constitutional problem was overlooked. I thought that in 1985 and I still think it today. But it surely is evidence that the Washington, Randolph, Jay, and Hamilton read the two clauses as textually consistent. That's no accident. The two clauses--as we have seen--are textually consistent. Second, the dissent says that George Washington had no "special insight into how the Framers intended the recess appointment power of Article II to interact with the salary and tenure provisions of Article III." That sentence made me nervous when I drafted it. It's true, but it is misleading for two reasons: (1) Washington wasn't alone--two of the authors of the Federalist Papers and his Attorney General were in on the recess appointments decisions; (2) Washington was the Chair of the Constitutional Convention in Philadelphia. Does that give him "special insight"? Probably not. But special insight isn't the standard. Do Washington's recess appointments provide evidence of original meaning? The Woodley dissent had to concede that they are some evidence of original meaning. That now seems to be a bit of an understatement.
        Tradition and the Rule of Law. History has another role to play in Constitutional interpretation. The Supreme Court will frequently defer to a long historical tradition or practice--even though there are arguments that the tradition contravenes the text or spirit of the Constitution. There have been a lot of recess appointments over a very long time. Although the argument has occasionally been made that recess appointments are unconstitutional, that argument has almost always failed. The Ninth and Second Circuits have rejected constitutional challenges to recess appointments; no court of appeals has sustained a challenge. Republicans and Democrats have made use of the recess appointments power. Supreme Court Justices have been recess appointees. Chief Justices have been recess appointees. If a long historical tradition suggests that a practice is constitutional, then this provides additional evidence that recess judicial appointments are constitutional. The Woodley dissent essentially conceded this point, but argued that it was outweighed by an important constitutional value--judicial independence.
      Function And this brings mean to the third member of the trilogy, text, history, and function:
        Judicial Independence The strongest argument in the Woodley dissent was that the independence of Article III judges is important to the Constitutional scheme. I believed that in 1985 and I believe it today. In fact, I think that I have a much deeper appreciation of the reasoning behind the good behavior clause today than I had in 1985. Judicial independence is important because we want judges to resist the politicization of the judiciary. We want judges who will decide the cases before them on the basis of law and not politics. We need judges with he judicial virtues and especially with the virtue of justice--the disposition to decide disputes on the basis of the law and to resist the temptation to decide on the basis of personal preference or political ideology. But even the most courageous judges will serve poorly as the guardians of individual liberty if they can be removed at the whim of the political branches. So far, so good. Judicial independence disfavors recess judicial appointments. Is there any constitutional value on the other side of the scale?
        Deadlock When I drafted the dissenting opinion in Woodley it seemed to me that recess appointments to the judiciary served no valuable constitutional function. The only good reason for recess appointments, I thought, would simply be efficiency and convenience. Recess appointments would allow judicial vacancies to be filled during the then-longer recesses of the Senate. In the event of a freak accident, it could take weeks for the Senate to reconvene. But today, the Senate could come back in session in a day or two in a true emergency. And the federal judiciary and the Supreme Court are both much larger, and hence under almost any imaginable circumstance they could function for weeks or even months with vacancies unfilled. So, it seemed to me that the recess judicial appointments were an unqualified bad as a matter of constitutional policy. But I now see this issue through different eyes. Step back for a moment and consider the constitutional values implicated by recess judicial appointments:
          --Checks and Balances. The Senate's power to advise and consents serves a checking function on Presidential power.
          --Judicial Independence. The good behavior clause serves to promote the rule of law by giving judges independence from the political branches.
          --Functional Continuity. The recess appointments clause insures that the judiciary can continue to function in the event the Senate cannot or will not confirm nominees to judicial office.
        No system can simultaneously realize all three constitutional values. Checks and balances create a risk of deadlock and constitutional crisis. The recess appointments clause insures functional continuity by creating a deadlock breaking mechanism, but that mechanism compromises judicial independence. If the President could make lifetime recess appointments, that would provide judicial independence but do greater damage to checks and balances. The Woodley dissent simply did not consider the possibility that the politicization of the judiciary might someday produce a persistent deadlock, resulting in the depopulation of the judiciary. If a minority of the Senate insists that advice and consent means control, then the Constitution does not demand that the President back down and appoint judges that share the political ideology of his political opponents. Nor does the Constitution require the President to create judicial emergencies. The Constitution provides a mechanism that can avert temporary crisis. Whereas in 1985, I thought that recess appointments served no constitutional value while they impinged on judicial independence, I now think the situation is more complicated. And that leads me to . . .
      An Uncomfortable Conclusion Let's review. The text of the three clauses, the recess appointments clause, the good behavior clause, and the impeachment clause can be read in two ways. The three clauses are consistent if we read good behavior so as to guarantee life tenure for confirmed judges and to guarantee tenure until the end of the next session of the Senate for recess appointees. We can also read the three clauses so as to produce a contradiction between the good behavior clause and the recess appointments clause. From a textualist standpoint, it is clear that the former interpretation is to be preferred to the later. History provides us with strong evidence that the original understanding of the two clauses was that the President had the power to make recess judicial appointments--indeed, that was the practice almost immediately after the Constitution's adoption. History also tells us that the practice of recess appointments is a long-standing historical tradition; Presidents of all parties and at many different times during the nation's history have engaged in the practice of making recess appointments to every federal court, including the Supreme Court. With respect to constitutional values, there is an inherent and irresolvable conflict between the constitutional values of checks and balances, judicial independence, and functional continuity, allowing recess judicial appointments provides an imperfect compromise between the three values. In sum, the text and history of the Constitution support recess judicial appointments. An analysis of the relevant constitutional values suggests that recess judicial appointments represent an imperfect compromise solution to an inherent tension between three important principles. As I now see it, these considerations can only lead to one conclusion--recess judicial appointments are constitutional, but should be used sparingly--except perhaps in unusual circumstances.
    A Possible World--Article III Courts Without Life Tenure
      We need to think seriously about the implications of wholesale use of the recess appointments power for judicial office. The time when the implications of this possibility could safely be ignored has already passed. Indeed, thinking about the implications of recess judicial appointments is part of the process that can prevent them from coming to pass. So let's imagine a possible world where recess appointments become the norm rather than the exception. Here is how it might start:
      Phase One: Recess Appointments as Retaliation for Democratic Obstruction The judicial selection process is in a downward spiral of politicization. Republicans denied President Clinton floor votes on many of his nominees and Democrats have escalated, resorting to wholesale use of blueslipping and the filibuster. What's next? Perhaps everyone will wake up and smell the coffee. It may be that Democrats and Republicans are about to reach a historic compromise on the confirmation process, but as of today, it sure doesn't look like everyone is about to become cooperative. So let's try a thought experiment. What if President Bush did threaten the use of recess appointments and the Democrats not only didn't back down, but escalated--filibustering every nominee for judicial office? The President would have few alternatives. He could back down and start nominating judges whose political ideologies were acceptable to Democrats, but that hardly seems likely. He could allow the Democrats to block all nominees and simply allow judicial vacancies to go unfilled until after 2004--but that seems both irresponsible and the equivalent of political surrender. He could get lucky and persuade a few Democrats to vote for cloture--but so far that strategy has been unsuccessful. Or he could make recess appointments. Let's suppose that is the option chosen by the President.
      Phase Two: Democratic Reaction How would the Democrats react to wholesale use of the recess appointments power? Here are the options:
        --Democrats could cave in, and start giving the President floor votes. That seems terribly unlikely, given that Democrats are likely to see the President's move as outrageous escalation of the confirmation wars.
        --Democrats could try the litigation options, but that seems unlikely to be successful, although there might well be political benefits from the effort.
        --Democrats could continue to filibuster and make the recess appointments an issue in the 2004 election. After pursuing the litigation strategy, this seems like the most likely outcome. So what would happen next?
      Phase Three: After the 2004 Election At this point it gets complicated, because either Democrats or Republicans could win the Presidency and/or the Senate. We need to explore several scenarios:
        --Scenario One: If the President is reelected, and the Republicans do not gain the 60th vote in the Senate, then Democrats have two options:
          + Variation 1-A: Back down and let the President have floor votes that he is sure to win, or
          + Variation 1-B: Continue to filibuster the Presidents nominees--with the President countering by continuing the practice of making recess appointees.
        --Scenario Two: If the President is reelected, and the Republicans do gain the 60th vote in the Senate, the President is likely to use the opportunity to appoint candidates that appeal to the Republican base. In Scenario Two, the use of recess appointments would end, until the next stalemate develops.
        --Scenario Three: If the President is not reelected, and the Democrats do not gain control of the Senate (or fall short of 60 votes), then Republicans have two choices:
          + Variation 3-A: The Republicans back down and give the Democrats floor votes. This seems unlikely; the Republicans are likely to be in no mood to compromise after the Democratic filibusters and subsequent electoral victory.
          + Variation 3-B: The Republicans filibuster the Democratic President's nominees. This puts Republicans in the same position as the Democrats were in Phase Two and the next big event would be the election of 2008.
        --Scenario Four: The President is not reelected and the Democrats get 60+ seats in the Senate. This is the mirror image of Scenario Two. The Democratic President will appoint judges and justices who play to the Democratic base.
      Phase Four: Permanent Recess Appointments Suppose that electoral politics does not break the stalemate. That is, suppose that neither the Democrats nor the Republicans are able to control the Presidency and enough Senate votes to break a filibuster. Suppose further that the opposition party will not back down. The downward spiral of politicization has progressed so far that a political compromise is no longer feasible. Where would we find ourselves? In a brave new world, where recess appointments were the rule and not the exception. Judges and Justices would serve for terms that would last up to two years--beginning with the first recess in one Senate Session and ending when the next Session terminates. When the Presidency turned over, the power to control these judgeships would also turn over. There would be a wholesale change in the composition of the judiciary. The legacy life-term judges would continue in office, but the recess-appointment judgeships would be filled by the new President, who would appoint members of his own party. As time passed, more and more of the federal bench would be occupied by recess appointees as the legacy life-term judges resigned, retired, or died in office.
    Article III Without Life Tenure What would we make of this brave new world? Here are some thoughts:
      Horror Of course, our first reaction is horror. We have all been taught that life tenure is a cornerstone of the Philadelphia Plan. Without life tenure, the federal judiciary would be unable to serve it's constitutional function as the guardians of individual liberty. Without life tenure, the federal judiciary would become politicized. Without life tenure, the rule of law would be fundamentally compromised by judges who decided on the basis of political ideology rather than the law.
      On the Other Hand But wait a second. The way that we got into this mess begins with a judiciary that is already being politicized. If both parties are willing to appoint virtuous judges, who are committed to the rule of law, relying on text, history, and precedent rather than personal ideology, then we would never enter a downward spiral of politicization. The downward spiral--the confirmation wars--are a symptom of the deep politicization of the federal judiciary that has occurred over a period of decades. Once the parties woke up to the fact that federal judges were becoming political actors, then they realized that political control of the composition of a judiciary with life tenure was one of the great prizes of control of the Presidency. But once the parties realize that, a further realization follows. The ability to block judicial nominees is one of the great benefits of holding at least 41 seats in the Senate.
      Here is the crucial insight. Once the judiciary has become politicized, it is no longer clear that lifetime tenure is justified. We want lifetime tenure to safeguard the rule of law. Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized. If the judiciary is just another political branch, then it should be politically responsive. Let me repeat that idea in a more pungent form. If the judiciary is just another political branch, then it is appropriate for judges to be turned out of office every four years. Politicized judges pose a countermajoritarian difficulty. Politicized judges with life tenure are the most dangerous branch. But the recess appointments clause when combined with advice and consent and the filibuster provides a self-correcting constitutional mechanism. If the judiciary becomes thoroughly corrupt and partisan politics prevents the political branches from agreeing on the appointment and confirmation of judges devoted to the rule of law, then the constitutional solution is to replace lifetime tenure with judicial terms for a limited period of years--and that solution is already available in the recess appointments clause. Let me be clear: I am not arguing for recess judicial appointments. I am arguing against them. But I am arguing against recess judicial appointments because I am in favor of the rule of law. If I am given the Hobson's choice--politicized judging with life tenure or politicized judging without life tenure--the choice is painful but clear. The point of the thought experiment is that we should avoid the Hobson's choice. How can we avoid it? Compromise. Both parties should agree on two principles of judicial selection. Principle One: judges should be selected on the basis of their possession of the judicial virtues, and especially the virtue of justice--fidelity to the rule of law. Principle Two: each party should agree to allow the nominees of the other party to come to a floor vote, and Senators should vote to confirm--unless there is good evidence that the nominee lacks the constituent elements of good judicial character. The possible world of Article III without Life Tenure is not the only ending point for the downward spiral of politicization, but contemplating this possibility can and should serve a salutary purpose. It is in the long run interest of both political parties to call off the confirmation wars. The time for escalation should end, and the time for compromise should begin.
    A Tale of Two Law Clerks And what happens to our two law clerks?
      From Past to Present The second clerk is alive and well. In 1985, he thought that Woodley was an important case in principle but a curiosity in practice. Today, he realizes that the issue that the Ninth Circuit grappled with in 1985 was of profound importance. The recess appointments clause is, in reality, one of the most important features of the Constitution. It's deadlock breaking function may only come into play in the most extreme of times, but it is exactly in those times that a workable constitutional framework is crucial. In 1985, the second clerk had romantic notions about the role of the judiciary. He imagined innovative judges who would wield the law like a sword, striking down injustice with newly minted constitutional rights. In 2003, the second clerk is more skeptical about the transformative role of the law. Today, he is more concerned about text, history, and precedent, and less enamored of new and fancy theories. He has the same ideals but a different view of the role and rule of law.
      Back to the Future And in 2035 . . .
      . . . and Professor Oman suggested that the crisis of 2003 actually led to the solution of the countermajoritarian difficulty," the clerk continued, no longer nervous but excited by the exchange of ideas.
      "I'm not so sure about that," the Justice replied. "But I do know that this place is a whole lot different now that Justices come and go every couple of years. Why, some of these young ones, I hardly learn their names before a new bunch arrives." He swiveled again, and looked down through five inches of bullet proof glass upon the Mall, eerie now in its emptiness. "Yep, it sure has changed."

For more on the confirmation wars, see Breaking the Deadlock: Reflections on the Confirmation Wars. For a guide to all my posts on judicial selection, click here.

Hasen on Rationality in the Confirmation Wars Rick Hasen has an excellent post on the rationality of the Democrat's decision to filibuster Estrada and the possibility that the President might use the recess appointments power.

New Papers

Tuesday, April 29, 2003
The Downward Spiral of Politicization of the Judicial Confirmation Process: The Recess Appointments Option
    Introduction Politicization of the judiciary is nothing new in the United States. Great issues, from the constitutionality of the Bank of the United States to the validity of FDR's New Deal have, from time to time, injected partisan politics into the selection of Supreme Court Justices. The past few decades have seen an escalation of that politicization, as the Court's decisions on a wide variety of issues have become transparently political and hot button issues, such as the death penalty and abortion became political footballs on the Court. In the last two administrations, however, a new and disturbing tendancy has emerged. Politicization has been pushed down--increasingly Court of Appeals and District Court nominations have become political in a new sense. It has always been the case that Presidents have favored members of their own parties. Increasingly, it is the case the nomination and confirmation is a battlefield and political ideology is the victory condition. The politicization of the confirmation process for lower court judges became evident in the Clinton administration, but it is difficult to escape the conclusion that it has become more pronounced as Democrats have engaged in wholesale use of blueslipping and filibustering to prevent the confirmation of the President's judicial nominees. Republicans percieve these moves as escalatory and unprecedented in scale and scope; this leads to counter moves, such as recent refusals to honor Democratic blueslips. Democrats believe that their own moves are justified as retaliation for similar Republican moves during the Clinton administration. The natural next step is a blanket filibuster of every nominee whose ideology is in line with the President and the leadership of the Republican Senate caucus. And one can expect that Republicans will look for a countermove. One such countermove is to raise funds on this issue and spend it against vulnerable Democrats, and Democrats have already made judicial confirmation a key component of their own fund raising strategy. We are in a downward spiral of politicization.
    The Next Step In the short run, the politicization of the confirmation process is political theater. Both parties posture and play to the media. But the political theater phase of the confirmation wars is about to end. There are at least two reasons why the sitzkrieg cannot continue. The first is that the judiciary is becoming depopulated; judicial emergencies have already been declared in several circuits. The second reason is that the battle is about to move to the Supreme Court. If William Rehnquist and Sandra O'Connor resign this summer, as is widely expected, the mother of all confirmation battles will be joined. There is no reservoir of good will between the parties to draw upon--that has been depleted over the course of the last few months. This will be an intense, bitter, partisan fight--with the memory of Bork and Thomas steeling Republican wills for an all-out, no-holds-barred contest with Democrats who see the crucial vote to overrule Roe v. Wade as potentially on the line. So what's next? Consider three possibilties:
      Compromise on Political but Moderate Judges In theory, there is compromise. Democrats and Republicans could agree that judicial nominees would be selected from the political center. On the real hot button issues, the pie could be divided--one pro-choice justice and one pro-life justice, as vacancies on the Supreme Court open. But no one really believes that such a compromise is possible. Abortion is percieved as an all or nothing issue. Either Roe v. Wade is overruled or it is affirmed--although there may be room for a modified Roe that solution satisfies almost no one. At some point, dividing the pie would mean that the fifth vote would begin to alternate with each resignation. A Supreme Court that periodically overruled and then reinstated Roe would be a laughing stock and would do incalcuable damage to the rule of law.
      Depopulation of the Judiciary The second alterantive is depopulation of the judiciary. The stalemate could persist. Democrats could filibuster any Republican nominee who isn't "moderate," and the President can stop sending "moderates" to the Senate. The Supreme Court can function with seven Justices. The lower federal courts could limp along with fewer and fewer judges. Of course, the depopulation option cannot last for very long. On the one hand, the ability of the courts to do the nation's judicial business will eventually begin to suffer substantial impairment. On the other hand, the depopulation of the Supreme Court will have obvious political consequences. For example, if Rehnquist and O'Connor were to resign and not be replaced--the ideological tilt of the Court would move dramatically to left, with Stevens, Souter, Ginsburg, and Breyer forming a working four Justice majority. The pressure to break the stalemate would begin to build. And this leads me to the third option.
      Recess Appointments The Recess Appointments Clause, Article II, Section 2, Paragraph 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." My colleague, Rick Hasen, started blogging about the wholesale use of recess appointments some week past. And that option has been discussed by Hugh Hewitt in an essay in the Weekly Standard. The use of recess appointments to the judiciary has ebbed and flowed since 1789, but it has been rare in recent years. The reason is that the Senate is jealous of its constitutional perogative--the advice and consent power. By statute, most recess appointees cannot be paid, and the Senate, from time to time, reminds the President that recess appointees are unlikely to be confirmed. Given the uncertainty of confirmation, most of those qualified to serve as federal judges or Justices of the Supreme Court are likely to be unwilling to accept a recess appointment. Hence, the use of the recess appointments clause has been sparing, and its wholesale use has been deemed impracticable.
    The Barnett Plan Today, Randy Barnett (Boston University) published Benching Bork: How to end the war over judges in the National Review Online. Barnett suggests an ingenious devices for overcoming the political obstacles to recess appointments:
      President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments. Unlike practitioners who cannot abandon their practice for a short stint on the bench, professors who can take a few semesters off and judges with no prospects of higher judicial office would be ideal. It would be like a judicial clerkship program for conservative and libertarian law professors that can continue as long as there is a Republican president.
      If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees.
    Barnett's suggestion is ingenious, because it gives the President a credible threat of making wholesale use of the recess appointments power, thereby nullifying the Democrats major weapon--the filibuster.
    But Where Would This Lead? Wholesale recess appointments would constitute a radical change in the way that judges are selected. Where would this lead? I will have more to say about this topic in another post. For now, here are some possibilities worth thinking about:
      A Grand Compromise Barnett himself believes that the recess appointments option would lead to a grand compromise. Here is how he puts it:
        The beauty of this threat is that it need never be implemented. Once a suitably long list is circulated privately — or, if need be, publicly — President Bush can offer not to appoint any of them in return for a floor vote on all his current and future nominees. Senate Democrats won't have to commit to voting for the president's nominees, they would just need to commit to allowing a full-Senate vote. To cement this new social contract and end the downward spiral — and for the sake of fairness — Senate Republicans would commit to support changing Senate rules to ensure that nominees of future Democratic presidents also get the same right to a floor vote.
      If Barnett is right, then the threatened use of wholesale recess appointments might be a way out of the current downward spiral of politicization. By threatening to "go nuclear," the President might induce Senate Democrats to agree to multiparty talks. (Does this sound familiar?) But . . .
      Retaliation But Democrats may not be in the mood for compromise. In fact, they might see this move by the President as exactly what the Democratic party needs to activate its base. Of course, activating the base may not be the best strategy to elect a Democratic President in 2004--an active Democratic base may produce an unelectable Democratic candidate. But an active base has another side effect--a massive influx of campaign contributions for incumbent Democratic Senators and Representatives. And the Democrats can open a second front. There is a litigation strategy. Howard Bashman of How Appealing has argued that recess appointments to the judiciary violate the good behavior and undiminished compensation clauses of Article III (see also here). The host of activist Democratic lawyers that fought the legal battle for Gore in Florida could be reactivated, and their Republican opponents could join the fray. The issue would eventually land where? Why in the Supreme Court, of course, with two of the sitting Justices (the replacements for O'Connor and Rehnquist?) possibly themselves recess appointees. They might recuse themselves, but then again, they might not. With the future of the Republic on the line, this case would make Bush v. Gore look like a carnival sideshow.
    My next post on this topic will examine the merits of the constitutional case against recess appointments. Tune in tomorrow. Same bat time. Same bat channel. And for a guide to my posts on judicial selection, click here.
Post Script: Howard Bashman reacts here. And there is a post on Demagogue here. And Howard Bashman reports that Senator John Cornyn (R-TX), who serves as Chairman of the Senate Judiciary Committee's subcommittee on the Constitution will hold hearings on reform of judicial confirmation process, find solutions to fix downward spiral of partisan obstruction. And Phillipe de Croy argues against Barnett's ideas, both on prudential and constitutional grounds. And Rush Limbaugh endorses the Barnett Plan with audio here.

New Look for the Election Law Blog Check out Rick Hasen's new look at the Election Law Blog. By the way, it looks absolutely terrific, Rick. I'm jealous.

The Confirmation Wars I have been arguing for some weeks now that the judicial selection process is in a downward spiral of politicization. Further evidence comes today from Howard Bashman who reports on an article from Rollcall:
    "Senate Republicans are expected to try to force votes on two of President Bush's top judicial picks this week, testing Democratic will to maintain simultaneous filibusters and likely imperiling working relations between the two parties for the foreseeable future." And the article goes on to note that Democrats are accusing Republicans of stalling the confirmation vote for Fifth Circuit nominee Edward C. Prado to gain further rhetorical advantage in the confirmation battle over D.C. Circuit nominee Miguel A. Estrada.
My most recent post on this topic appeared on Sunday, link here. For a complete collection of links, click here.

Monday, April 28, 2003
New from Online Papers in Philosophy Alex Rosenberg (Duke, Philosophy) posts On The Priority of Intellectual Property Rights, Especially in Biotechnology. From the abstract:
    Here I want to advance an argument for giving intellectual property rights which are untrumpable by any other sort of considerations from human welfare. The notion that there are basic human or natural rights, which cannot be overridden no matter what the welfare-consequences of do so, is a familiar one. But no one supposes that intellectual property rights, or indeed any property rights, are among this privileged set. Moreover, that considerations from human welfare should underwrite such status for any human right is perhaps more surprising. After it all, it is to limit the writ of welfare-considerations that untrumpable rights are invoked.

Monday Workshop Max Kolbel (Birmingham) presents Indexical relativism vs genuine relativism at Oxford's Seminars on Moral Philosophy series.

Fontana on Comparative Constitutionalism David Fontana has posted Refined Comparativism in Constitutional Law on SSRN. Here is a taste from the abstract:
    This Article considers the possible uses of comparative constitutional law in American constitutional interpretation. Surveying the debates about the uses of comparative constitutional law at the Founding, and tracing these debates to contemporary times by looking at the role of comparative constitutional law in the history of the U.S. Supreme Court, David Fontana suggests that a moderate, workable practice of using comparative constitutional law is consistent with the original intention of the Founders and has some precedent in the case law of the U.S. Supreme Court. This Article lays out a "refined comparativist" approach, whereby a court would consider comparative constitutional law only when faced with a "hard case," the comparative constitutional law can add something distinctive to American constitutional interpretation, and the contextual differences between the United States and the country the American court is considering borrowing from are slight. This Article then defends this refined comparativist model, paying particular attention to several strands of contemporary constitutional scholarship, before applying refined comparativism to address the constitutionality of hate speech.
And while you are at, you might check out his A Case for the Twenty-First Century Constitutional Canon: Schneiderman v. United States.

Hot Downloads Department: Weatherson on Land Disputes The issue is how to resolve disputes between nations or ethnic groups--a topic of no small importance. Hillel Steiner and Jonathan Wolff had a paper in Analysis. The gist of their idea is to conduct an auction--by the way, scroll down for Paul Klemperer's latest paper on auction theory. Here is Weatherson's summary:
    The idea is that we should auction off the land, with the loser of the auction getting the money. While this might mean that the richer party will normally end up with the land, and this is normally not thought to be a good thing, if the auction is conducted as they specify “it will turn out that the other party ends up with something which, in the circumstances, it prefers to the land: lots of money.”
Brian Weatherson (who authors both Thoughts Arguments and Rants and the invaluable Online Papers in Philosophy) has posted a short paper that critiques the Steiner and Hillel proposal--get it while its hot.

New on SSRN A slew of new and interesting papers on SSRN. Here is the roundup:

Wolff on Rawls On the The Philosophers Magazine, Jonathan Wolff (University College, London) has a very nice piece entitled A Theory of Justice: the book that changed everything. Here is a taste, but read the original:
    Consider, too, the much-debated question of whether A Theory of Justice presents a political philosophy valid for all times and places, or one that is culturally relative only to the US and societies like it. Again, in 1971 methodologically this question of scope was not widely discussed. Rather, the methodological debate was formed from two related strands. One we have already seen: answering the individual subjectivism – the moral solipsism – of logical positivism. The other was set by Hare: the "logic of morals" debate, in which the question was that of how far progress in substantive moral and political philosophy is possible on the basis of logical analysis of the moral concepts. Hare, of course, argued that logical analysis is all we need. Rawls credits Burton Dreben for the advice that this method will not advance the aims of moral and political philosophy. By, instead, applying Nelson Goodman’s idea of reflective equilibrium, Rawls changed the way we now conduct ourselves in moral and political philosophy. But in doing so he generated questions about what such a methodology might deliver – questions on which we are still undecided 30 years later.
And also from TPM, Julian Baggini has Rawls's Life: The quiet American.

New from Economic Theory News Michele Piccione (London School of Economics) and Ariel Rubinstein (Princeton and Tel Aviv, Economics) have uploaded Two Tales of Power and Distribution of Wealth in the Jungle. Here is an abstract:
    In the jungle, power and coercion govern the exchange of resources. We study two simple, stylized models of the jungle. The first model mirrors an exchange economy. We define the notion of jungle equilibrium and demonstrate that standard results of competitive markets hold in the jungle as well. The second model is game theoretic. We show that being more powerful does not necessarily imply being wealthier.

Sunday, April 27, 2003
The Desert and the Jungle: Alan Schwartz and Robert Scott on Contract Theory
    Introduction Alan Schwartz (Yale) and Robert Scott (Virginia) have uploaded Contract Theory and the Limits of Contract Law, forthcoming in the Yale Law Journal. Here is the abstract:
      This article sets out a normative theory to guide decisionmakers in the regulation of contracts between firms. Commercial law for centuries has drawn a distinction between mercantile contracts and others, but modern scholars have not systematically pursued the normative implications of this distinction. We attempt to cure this neglect by setting out the theoretical foundations of a law merchant for our time. Firms contract to maximize expected surplus and the state permits markets to function because markets maximize social welfare. Thus, there is a correspondence of interest between firms and the state, which implies that, when externalities are absent, the state should implement the preferences of firms regarding the rules that regulate their contracting behavior. A contract law for firms would differ in three major respects from current contract law. First, such a law would have far fewer default rules and standards than current contract law contains. The high level of generality on which much contract law is written (e.g., a party must behave "reasonably") creates unacceptable moral hazard for parties subject to it. Thus, firms in theory should, and in practice commonly do, contract out of much of the law most of the time. The primary effect of today's law, that is, is to raise transaction costs without altering substantive behavior. Second, the default theory of interpretation that a contract law for firms would require courts to base interpretations primarily on the written texts of agreements. The risks of incorrect interpretations that such a theory creates, we argue, would be more acceptable to firms than the costs that the courts' current interpretative practices create. Third, the law would contain almost no mandatory rules. To summarize, a modern law merchant would be much smaller than current contract law; would truncate broad judicial searches for parties' true intentions when interpreting their agreements; and would accord parties much more freedom to write efficient contracts than now exists.
    Obviously, this is must reading for contract theorists.
    But What Is Going On Here I find most of Schwartz and Scott's story to be compelling. In particular, their argument for the plain meaning approach to the interpretation of commercial contracts was very persuasive. But stepping back for a moment, I find large portions of their argument puzzling or confusing--although I think I agree with their core normative positions. Let me start with their basic theoretical notions--the idea of complete contract and a default rule. Before I start my analysis, it is probably useful to lay out some of Schwartz and Scott's basic ideas and arguments. Here goes:
      A Complete Contract The first idea is that of a complete contract. The intuitive notion is that a complete contract would set out the obligations of the parties in all possible future states of the world. Schwartz & Scott rely on this idea in a number of places. Here are some examples:
        --"We now consider the case in which the parties have written a complete contract in some language." (p. 47)
        --"Incomplete contracts sometimes produce law suits because parties will not always agree ex post regarding the treatment of omitted contingencies." (p. 60)
        --"The commonly held view is that but for the cost parties would write complete contracts." (p. 62)
      A complete contract contains provisions that provide courts direction for all possible states of the world. An incomplete contract falls short of this ideal--it contains gaps that are realized in some possible states of the world or inconsistencies that are trigged in some possible states of the world or ambiguities that become manifest in some such states or it contains gaps, inconsistencies, and ambiguities--as most real world contracts do.
      Default Rules and Mandatory Rules From this picture, it follows that the law of contracts contains default rules and mandatory rules. A default rule is a rule of law that fills a gap in an incomplete contract; default rules can be overriden by the terms of a contract, and hence, if a contract is complete, it completely excludes the operation of default rules. A mandatory rule is like a default rule, except that it trumps the terms of a contract. For example, a contract that with a liquidated damages clause that called for the breaching party to forfit a pound of flesh in the event of breach would be uneforceable because it would violate a mandatory rule.
      Schwartz and Scott's Argument for Minimizing the Number of Default Rules Schwartz and Scott argue that contract law should contain very few default rules and standards. Let me quote three key paragraphs. The first sets out criteria for a good default rule. The second argues that because default rules would be too expensive, contract law relies on default standards instead. The third paragraph :
        Paragraph One, Criteria. A good default rule will condition on few possible states of the world, be relatively simple in form, and be efficient for a wide variety of contract parties. The first of these criteria is necessary because there can be an infinite number of possible future states of the world, but thestate’s drafting costs also are finite. Thus, it likely would not be cost justified to create a publically supplied rule if the rule had to contain directions for parties in many possible future states. The criterion of simplicity is a function of institutional competence. While legal rules can be complex, contract law rules are created by courts and drafters. Courts cannot conduct investigations into the efficiency properties of possible rules and rule combinations. Drafters also have limited resources.
        Paragraph Two, Costs Lead to Default Standards. Contract and commercial law thus contain very few default rules because parties are heterogeneous in modern economies, good rules sometimes must be complex, and the efficient rule may have to take many possible future states of the world or party types into account. Rather, the Restatement of Contracts and Article 2 of the UCC primarily contain standards; these texts are replete with provisions requiring parties to behave “reasonably”, “conscionably”, “fairly”, “in good faith”, and the like.
        Paragraph Three, Default Standards Are Inefficient The project of creating publicly supplied default standards is difficult to defend. A publicly supplied contract law is justified as solving problems for parties that contracting costs prevent parties from solving on their own. It is relatively costless for parties to write standards in their contracts, however. Thus, for parties to provide that the seller should deliver a “reasonable” quality level, deliver within a “reasonable” time, but be excused if its performance has become “impractical”, would exhaust few drafting resources. When a court observes the absence from a contract of a standard that would have resolved the issue at bar, then, the court should not infer that the contract has a gap that typical parties would want the court to fill. Instead, given how easy it is for parties to create standards, the best inference commonly will be that a standard is not “missing” from the contract, but rather its use has been rejected. The court therefore should not imply a standard to decide the case. And for the same reason drafters should be reluctant to enact sets of seemingly missing standards into statutes or restatements. To fill nonexistent gaps is to do for parties what parties do not want done.
      Standards don't work for three reasons. First, they are general and ambiguous (otherwise they would be rules). Second, they create a moral hazard problem, because parties have obvious incentives to interpret vague standards in their own favor. Third, because of asymmetrical information, the moral hazard problem is exacerbated. (See Legal Theory Annex for more on this argument.) In sum, then, Schwartz and Scott argue that most of the default rules provided by contract law are inefficient standards, which only increase transaction costs by forcing the parties to contract around the inefficient default rules.
      Desert Landscapes How might we capture the core intuition behind Schwartz and Scott's theory of contracts between firms? Let us analogize current contract law to a lush jungle, populated by a dense undergrowth of default standards and a forest of default and mandatory rules. For firms to build a contract in this jungle, they must hack their way through the undergrowth--cutting down default standards willy nilly and building their agreement around the many awkwardly placed mandatory rules of contract. Schwartz and Scott might be said to long for contract law that is like a desert landscape. Surveying this sparse Schwartzscottian Desert, we would see a few scattered but attractive default rules along with the rare but prickly mandatory rule, usually spied only atop a distant dune. Building a contract in the desert is cheap by jungle standards. Because the mandatory rules are few and easily avoided, it is a simple task for firms to find a suitable plot upon which they can build their agreement. The default rules that might impinge on one’s contract can be incorporated in the structure or cleared away without undue expense. The desert floor is bare and solid—already a suitable foundation for building an agreement. It is no wonder that firms would prefer to build their contracts in desert landscapes.
    Something Is Seriously Wrong With This Picture At one level, Schwartz and Scott offer an attractive picture of contract law, but there are cracks in the edifice. I want to rewind the argument. Viewed from a distance, the Schwartzscottian Desert has a sparse and elegant beauty, but on closer inspections, we begin to see that the what is smooth from far away is rough and unshapen upon closer view. Enough metaphor. On to the argument.
      Complete Contract? Incoherent Idea! Let's start with the first building block of Schwartz and Scott's analytic framework--the idea of a complete or fully specified contract. Will that dog hunt? Let's try to make the notion of a completely specified contract more precise. The method for specification will be the employment of possible-world semantics to cash out the idea of a "possible future state of the world." Once we have a clear understanding of this idea, we can move to the fully specified contract itself.
        Possible Worlds Semantics Begin with the notion of a possible world. If X is possible, we say that X occurs in some possible world. We add the notion of the "actual world"—where actual is an indexical term that picks out this world from all possible worlds. A completely specified contract need not deal with all possible worlds--only with the possible future states of the actual world. This limitation is expressed in possible world semantics via what is called an "accessibility" relation. Those possible worlds that share the history of the actual world up to now are called "historically accessible." Of course, it is logically possible that the future states of the actual world could be just about anything you can imagine; there is no logical contradiction in a possible world that shares the history of the world up until now, but that is completely empty the very next moment. We should restrict the domain of possible worlds to those that share the basic laws of nature (physics, etc.) with the actual world; these worlds are called "nomologically accessible." The historically and nomologically accessible worlds, then, are those that share the history of the actual world up to now and that share our laws of nature.
        "States of the World" and "Obligations of the Parties" We also need to define two more elements that enter into the notion of a completely specified contract: state of the world and obligations of the parties. First, stipulate that a state of a possible world is a unique time slice of that world: thus, world Wz at time Tq is at state S[WzTq]. Second, stipulate that obligations of the parties to a contract for a given state of the world will be a set of descriptions O that contains for each party, p1, p2, . . . pN, the obligation descriptions o1, o2, . . . oK that pick out the action types the occurrence of which is required by the contract. Thus, party p1's discrete obligation o1 would be p1o1. Given these definitions, a completely specified contract will take the form of a list of ordered pairs. One member of each pair will be a state of some historically and nomologically accessible possible world and the other will be a specification of the obligations of the parties for that event type. Let the equal symbol (=) represent the relationship between the two members of the ordered pair. A completely specified contract for n parties with k obligations in q time slices of z possible worlds would need to spell out all obligations of all parties for all time slices of all nomologically and historically accessible possible worlds. For just one time slice of one possible world and some number of parties N, we have
          S[WzTq]={(p1o1 & p1o2 & . . . & p1oK) & (p2o1 & p2o2 & . . . & p2oK) & . . . (pNo1 & pNo2 & . . . & pNoK).
        There are, however, an infinite number of possible worlds and a continuum of time slices of each world. Therefore, if a complete contract were to be drafted, it would be rather long. We might say that a complete contract would have an infinite number of pages and that each page would have a continuum of provisons. This is an incoherent conception; such a contract is not possible in theory but too expensive in practice. Such a contract is inconcievable.
        Default Rules? Conceptual Default! A complete set of default rules simply is a complete contract minus the particular provisions that identify the parties and their core obligations. If contract law is to provide default rules for all situations in which an actual contract falls short of the ideal of a fully specified contract, then contract law must either contain an infinite number of rules or a finite number of rules or standards that predetermine outcomes in an infinite number of cases. A core assumption of Schwart and Scott's argument is that a complete set of default rules or standards that provide determinate guidance for the resolution of cases is impossible. And they are right. The dream of a completely specified contract has taken on a nightmarish quality. It is not clear that the idea of a contract that specifies the obligations of the parties for all possible futures states of the world makes sense.
        Reconceputalizing Default Rules We need to rebuild the idea of a default rule on foundations firmer than the incoherent idea of a fully specified contract. Once we severe that tie, we can develop a workable albeit less ambitious concept. The key move is to figure out what default rules really do. My suggestion is that default rules perform three functions, or putting it a bit differently, default rules fill three kinds of gaps:
          Gap Type One. Failure to Specify Background Assumptions. The first cause for a gap might be the termed failure to specify contingent but highly probable background assumptions. For example, the contract requires payment of $10,000,000.00 on a certain date, and the obligee makes her payment by tendering 1,000,000,000 pennies. One might say that this situation exposes a "gap." The contract does not specify what will happen in the event of payment in pennies. The gap is created by a background assumption—that payment will be made by check or perhaps by $100 bill, but certainly not by pennies. The ability to contract against a background of unstated background assumptions is an absolute necessity for the enterprise of contracting to get off the ground. Without background assumptions, contracts would have no meaning. Courts must fill in the background assumptions, or they could not interpret contracts. And this leads to a very important point. Modes of contract interpretation are themselves default rules. Thus, a plaining meaning approach to contract interpretation is simply a default rule--or to be more precise a "default standard" in Schwartz and Scott's terminology.
          Gap Type Two. Contractual Generality and the Variability of Experience. Consider a second and related reason for so-called "gaps." Contracts are written in relatively general language, but human experience is enormously variable. Recall Aristotle's classic discussion of equity in Chapter Ten of Book Five of the Nicomachean Ethics:
            [A]ll law is universal but about some things it is not possible to make a universal statement which will be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. And it is none the less correct; for the error is not in the law nor in the legislator but in the nature of the thing, since the matter of practical affairs is of this kind from the start. When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, when the legislator fails us and has erred by over-simplicity to correct the omission--to say what the legislator himself would have said had he been present, and would have put into his law if he had known.
          Aristotle is discussing the law in general, but his point is good for the norms created by a valid contract. Such norms must be stated in the relatively general and universal language, but practical affairs are particular and variable. The notion of a completely specified contract assumes that one could spell out all the rules in advance—by adding an enormous number of relatively general and universal clauses to the actual contract negotiated by the parties. But this assumption is incorrect: every attempt at a completely specified contract is doomed to failure, because the tools with which such a contract would need to be constructed—that is, the words and sentences of a natural language—are not up to the task.
          Gap Type Three. Recurring Omissions of Anticipatable Contingencies. Consider a third source of contractual gaps, the omission by the parties of an anticipatable contingency. Of course, such examples are familiar from contracts casebook. These are the garden-variety gaps with which we are all familiar. And of course the law does provide default rules for such recurring gaps. In a common law system, such gap filling by default rules is almost inevitable. The fact patters recur, opinions are published and particular rules governing omission types begin to form. One important default rule that applies to most contracts is law of contract damages--the expectation measure fills a gap in contracts without liquidated damage clauses (or other damage provisions). Even more ubiquitious is the set of rules that define the rights and obligations of the parties in the event that the contract is invalidated. Once again, the law provides a default for an anticipatable contingency--the invalidation of the contract itself. Of course, this default rule is an absolute nececessity. Although the parties could attempt to enter into a second order contract that established the consequences for invalidation of their first order contract, you have already seen that there is an infinite regress looming. What if the second order contract was not properly formed or is invalidated for some other reason? Well, the parties could form a third order contract, but . . .
      Back to Schwartz and Scott So, here is the very odd thing about Schwartz and Scott. They somehow think that a "good default rule will condition on few possible states" of the world. They say that this is "necessary because there can be an infinite number of possible future states of the world, but the state’s drafting costs also are finite." These statements are literally nonsense, because they assume an incoherent account of completeness and hence of the way default rules operate. Default rules don't condition on some number of states of the world. Every legal rule, including every contract provision or default rule/standard applies to an infinite number of possible states of the world. For every contract that can be breached, there is an infinite number of historically and nomologically accessible possible worlds in which the contract is breached and an infinite number of possible worlds in which the contract is performed. For every possible world in which breach occurs (or does not), there are a continuum of relevant states (time slices). There is no such thing as a default rule that conditions on "few possible states" of the world. The very idea is completely and utterly incoherent.
      I Have Good News and Bad News The good news first. Sure, complete and utter incoherence is not a good-making feature of theories, but in this case, there is a fix available. What Schwartz and Scott really mean is that of necessity default rules must be formulated so as to be contingent on only a few properties of the world. The problem isn't that there are an infinity of possible worlds. Rather, the problem is that each possible world can be described in an infiinite number of ways and contains a vast (but not infinite) number of entities, events, and actions. A default rule cannot be formulated as a complete description of the world. Default rules must be sparing in their formulation. When compared to the complexities of the world, legal rules are very sparse indeed. This is true even of the Internal Revenue Code--which despite its enormous complexity is vanishingly simple in comparison to the vastly complex world of human conduct it attempts to regulate in exquisitely fine-grained detail. So Schwartz and Scott are not in trouble. We might say that the surface structure of their point is incoherent but the deep structure is sound.
      And Now for the Bad New But now that we understand the nature of default rules, it turns out that that one of Schwartz and Scott's claims is self-refuting. Schwartz and Scott claim that default standards are not so hot, because the parties will try to contract around them. But there is no escaping default standards. Contracting without default standards is inconcievable, and trying to concieve of contract law without pervasive default standards is an enterprise fraught with incoherence and confusion. And so it turns out that what Schwartz and Scott are advocating is not fewer default rules or default rules that condition on fewer states of the world. What Schwartz and Scott are advocating is different default rules. So, for example, they offer an argument for a method of contract interpretation, i.e., a "textualist interpretive style, one that restricts the evidentiary base to not much more than the written." And this just is a default standard. Default because Schwartz and Scott's own arguments against mandatory rules tell us that this interpretative method should give way if the parties so stipulate. Standard because the applicability of "textualist interpretation" to particular situations is defined ex post and not ex ante (and that is how Schwartz and Scott define standards as opposed to rules).
      And One Thing More . . . One more piece of bad news. If you have gottent this far, you are probably wondering about the following question. If Schwartz and Scott advocate fewer default rules, then what will they do about the gaps? There must be some rule of law to deal with such situations--unless Schwartz and Scott would relegate the parties to self help. Here is what they say:
        What then is the proper role of courts in resolving disputes over incomplete contracts? If a contract contains a gap, a court sometimes must decide whether to create a standard or to declare the contract incomplete and thus void for indefiniteness. It would be appropriate to create a standard if the standard could satisfy the criteria set out above. If such a standard does not exist but the contract has been partly performed, so that declaring it void would create hardship, courts understandably attempt to read the contract to reach a reasonable result. It does not follow from these understandable efforts that drafters should infer default standards from the courts’ holdings. Rather, our argument holds that UCC or Restatement drafters commonly should do nothing, and that courts should be hospitable to attempts by later parties to alter or avoid earlier rules of the case.
      And of course, this is a default rule. And further, it will bring a host of other default rules into play. Parties will rely on various quasi-contract and tort theories as they seek to unwind thier relationship and determine the legal consequences of partial performance, sums paid for goods not recieved, and so forth. There is no such thing as a law of contracts without default rules or even a world where the default rules cover fewer cases. It is the nature of the relationship betwen contract and world that default rules are ubiquitious. Once we understand what default rules are and what they do, we find that they are inescabable. The Schwartzscottian Desert is beautiful but it is ultimately a mirage. Law, like life, is a jungle.
    Download Schwartz and Scott's hugely interesting article.

Freespace and Freewill Timothy Sandefur of Freespace reacts to my post from the Roundtable on Moral Luck at USD. Among other things, Sandefur praises Daniel Dennett's new book, Freedom Evolves--right on the money.

New on SSRN There are a few new papers this weekend:
    Simone Rose (Wake Forest) offers On Purple Pills, Stem Cells and other Market Failures: A Case for a Limited Compulsory Licensing Scheme for Patent Property. From the abstract:
      In an effort to balance the constitutional incentive of granting exclusive rights for "limited times" to inventors against the goal of furthering innovation and providing fair access to technology and knowledge, this paper explores options that provide greater leverage to accessing patented technology in a timely manner in situations where traditional licensing arrangements are an economic impossibility. The best illustrations of licensing bottlenecks are found in the areas of pharmaceutical/biotechnology and operations software. Here, patentees often stand to gain extraordinary profits from monopolizing the technology and little incentive to seek socially beneficial agreements in times of national crisis. With operations software, the patentee with the dominant system may delay licensing its technology and resist efforts that would result in opening the network to the entire marketplace, despite the fact that such activity would stimulate technological innovation and benefit consumers. Fair Use provisions, although attractive on the surface, lead to increased erosion of inventor incentives. This is particularly true in the area of biotechnology where start-up and research and development may become cost-prohibitive. However, the reverse doctrine of equivalents allows for infringing acts which produce radically pioneering inventions. Instead of attempting to mirror the Copyright Act's Fair Use Provisions, I advocate implementing some type of compulsory licensing scheme which can be triggered for public health, national emergency, or market failure situations. I posit that for pioneering inventions and certain types of basic research, such as stem cells, the transaction costs for negotiating and enforcing patent licenses becomes prohibitive and the incentive to abuse market pricing power is great. Overvaluing or undervaluing the market, market uncertainty, the desire to retain monopoly profits and differing goals of academic and corporate research are just a few of the scenarios which increase the costs of negotiating licenses and/or marketing patented inventions. Excessive transaction costs negate the Coasean "commons" theory that in the ideal universe of private property, minimal transaction costs will motivate parties to negotiate and share exclusive rights in a manner which leads to the most economically efficient use of resources. Instead, market failures often trigger monopoly pricing and/or an inability to negotiate traditional patent licenses. This creates a "bottle-neck" in natural free market competition, thereby preventing the true "progress and promotion" of the useful arts and science.
    Joshua Gans and Stephen King (Melbourne, Business) offer Contestability, Complementary Inputs and Contracting: The Case of Harbour Towage. From the abstract:
      It has been argued that competitive tendering can be used to overcome problems of natural monopoly and to make markets 'contestable.' The recent Productivity Commission report into harbour towage in Australia noted the potential benefits of competitive contracting. Using the example of harbour towage, we investigate these claims when competitive tendering involves one segment of a vertical production chain. We show that direct customer contracting will not result in a perfectly contestable outcome if there is a complimentary input provider with market power. In particular, contracting involves a socially sub-optimal service quality. We consider whether this situation improves when customers delegate the contracting process. In the case of harbour towage, the port authority is an obvious delegated agent for the shipping customers. But delegation only improves the outcome from the customers' perspective if the authority is able to receive side payments from the towage operators. Such side payments, a priori would appear to be against the interests of the customers. We show, however, that side-payments help the port authority to overcome the problems of market power, benefiting both the port authority and the customers. Further, these contracting outcomes are socially preferred to the unregulated outcome where port authorities and towage operators set prices and quality independently. This analysis sheds light and generally supports the Productivity Commissions recommendations.
    Daya Shanker (University of Wollongong) posts Access to Medicines, Article 30 of TRIPS in the Doha Declaration and an Anthropological Critique of International Treaty Negotiations.
    Joseph Aldy (Harvard, Economics), Scott Barrett (Johns Hopkins, School of Advanced International Studies) and Robert Stavins (Harvard, Kennedy School) upload Thirteen Plus One: A Comparison of Global Climate Policy Architectures. From the abstract:
      We critically review the Kyoto Protocol and thirteen alternative policy architectures for addressing the threat of global climate change. We employ six criteria to evaluate the policy proposals: environmental outcome, dynamic efficiency, cost effectiveness, equity, flexibility in the presence of new information, and incentives for participation and compliance. The Kyoto Protocol does not fare well on a number of criteria, but none of the alternative proposals fare well along all six dimensions. We identify several major themes among the alternative proposals: Kyoto is "too little, too fast"; developing countries should play a more substantial role and receive incentives to participate; implementation should focus on market-based approaches, especially those with price mechanisms; and participation and compliance incentives are inadequately addressed by most proposals. Our investigation reveals tensions among several of the evaluative criteria, such as between environmental outcome and efficiency, and between cost-effectiveness and incentives for participation and compliance.

Downward Spirals Department The rhetoric over the confirmation wars continues to heat up. As those with frequent blogsurf miles know, my view is that we are in a downward spiral of politicization that has dangerous long term consequences. The evidence in support of this hypothesis continues to pile up.
    Time Magazine Weighs In Time Magazine has a story (although one might be temped to call it an editorial) on the confirmation wars. Here is a brief excerpt:
      Democrats, for their part, say the filibuster is practically the only weapon they have left in the face of what they assert is a brazen attempt to stuff the nation's federal courts with highly ideological lawyers. Since most cases, while precedent-setting, never make it to the Supreme Court, they seem to have decided it's worth the fight even in the lower courts. "Never in recent memory has their been such an affront to the balance of the judiciary," said Sen. Edward Kennedy of Massachusetts, a Democratic member of the judiciary panel, where inter-party relations have sunk to a new low. "This is really an attempt to roll back any progress toward equality for all Americans."
    The story is about the nominations of Jeffrey Sutton and Carolyn Kuhl and the looming "Mother of All Battles" expected if both Rehnquist and O'Connor resign from the Court this summer.
    The Criteria for the Filibuster What are the criteria that trigger a Democratic Filibuster? Taking the Time Magazine story at face value, a filibuster is justified if the candiate is "highly ideological." How do we know that a candidate is "highly ideological"? Evidently, a three-step process of reasoning leads to this conclusion. First, from the fact that Sutton and Kuhl advocated postions X and Y as government lawyers, we can infer that they are ideologically committed to X and Y. Second, from the fact that they are ideologically committed to X and Y, we can infer that they would decide on the basis of their ideology if a case involving X and Y came before them. Third, positions X and Y are "highly ideological in nature." All three steps in this chain of reasoning are suspect. Consider the case of Jeffrey Sutton first.
    Sutton Jeffrey Sutton served as the Solicitor for the State of Ohio: Time observes that Sutton's "state's rights advocacy has helped limit the scope of disability, age and race discrimination statutes." Presumably, Time refers to positions taken by the State of Ohion in Eleventh Amendment sovereign immunity cases. The question is whether the Constitution (especially Article III's grant of judicial power and the Tenth and Eleventh Amendments) gives the states sovereign immunity from claims brought under federal laws creating private causes of actions against employers that discriminate on the basis of disability, age, or race. I am no fan of the Supreme Court's Eleventh Amendment juirsiprudence. I think that both the plain meaning of the text of the Eleventh Amendment, and the historical evidence about its original meaning are inconsistent with the key precedent, Hans v. Louisiana, and with the Supreme Court's recent decisions in cases like Seminole Tribe. But Hans has been on the books for a century, and Sutton, as the lawyer for the State of Ohio, would naturally argue the position that favored the interest of his client. The first step of the inference, from Sutton's advocacy of the interests of his client to his personal beliefs, is obviously invalid. This argument does not pass the laugh test. But even if it were correct, it does not lead to step two: if Sutton were ideologically committed to an expansive view of state sovereign immunity, it would not follow that Sutton would decide Eleventh Amendment cases on the basis of his personal political preferences. Without more evidence about Sutton's character, this argument is quite simply awful. It has no legs. What about the final step in the argument: If Sutton were ideologically committed to an pro-state's rights interpretation of the Eleventh Amendment would that make him an ideological extremist? This is actually a tricky question. Consider two possibilities: (1) If Sutton is committed to following Supreme Court precedent when he serves on the 6th Circuit, then he is simply committed to doing his job in accord with the rule of law. (2) If Sutton is committed to expanding the Eleventh Amendment protection of the states, even when such expansion is foreclosed by the Supreme Court's decisions or prior Sixth Circuit precedent, then he lacks the virtue of justice--the disposition to make judicial decisions on the basis of the law rather than personal preference. So far as I can tell, the current Democratic position does not differentiate (1) from (2). That is, Democrats are willing to filibuster candidates on the basis that they will follow Supreme Court precedent with which the Democrats agree on ideological grounds. If this is correct, it represents yet another escalatory move in the confirmation war. Opposition to Sutton on the basis of possibility number two is, of course, completely justified. But so far as I can tell, no one has produced a decent argument for two.
    Kuhl Carolyn Kuhl was the Deputy Soliciter General under Charles Fried. In that role, she was a lawyer for the United States Government (under President Reagan) in cases before the Supreme Court. She participated in the briefing for the Reagan Adminsitrations attempt to get the Supreme Court to overrule Roe v. Wade. I opposed that move. Although I think that the ultimate foundations for the original Roe decision are suspect, my view is that the Supreme Court should almost always adhere to its prior decisions. The rule of law cannot be restored by a wholesale program of overruling precedents with weak foundations. So I disagree with the Reagan administration's decision to seek the reversal for Roe. Does it follow that I should regard Carolyn Kuhl as an ideological extremist? As her boss, Charles Fried, wrote to the New York Times a few days ago, "You [the New York Times] characterize Judge Kuhl as "outside the ideological mainstream" because, among other things, she joined my brief calling Roe v. Wade an unwarranted extension of constitutional doctrine. That was also the view then of mainstream liberal scholars like Archibald Cox, John Ely and Paul Freund." This nation is deeply divided on the issue of abortion. Scholars, lawyers, and judges are deeply divided on the validity of Roe v. Wade. It is simply nonsense to argue that Kuhl is outside the mainstream because she worked on a brief that advanced the Reagan administration's position on that issue. The relevant question about Kuhl is whether her record as a Superior Court judge demonstrates that she posseses the judicial virtues. Given her background, we can be confident that she has the virtue of judicial intelligence and that she is learned in the law. But does she have good practical judgments or judicial wisdom? Does she have a judicial temperment? Most importantly, does she decide the cases that come before her on the basis of the law or does she allow ideology and personal preference to guide her decision making? I don't know enough to answer these questions, but I do know they are right questions.
Follow This Link for A Guide to My Posts on Judicial Selection and the Politicization of the Confirmation Process.

Saturday, April 26, 2003
Just My Luck, Part Three One of the nifty side benefits of doing this blog is the exposure to ideas in areas where I do very little work--for example, torts and criminal law. So I was doubly pleased with the opportunity to read and think about the late David Lewis's famous essay, "The Punishment that Leaves Something to Chance," for the Roundtable on Moral Luck at USD this morning. Lewis's essay is a fresh take on an old problem--why attempts are punished less severely than successfully completed crimes. Lewis's proposal is that the punishment of successful crimes is the equivalent of a lottery. All attempts (successful and unsuccessful) are equally blameworthy. For various reasons, we cannot or should not punish everyone who attempts. Instead, we use success as the proxy for a lottery. So both Alice and Ben attempt to impose harm H; they each have a 50% chance of success. Alice does succeed, and Ben fails. Each is equally culpable, but we punish Alice with a punishment P that is deserved for actions with a 100% chance of causing H. Ex ante, both Alice and Ben have an equal (50%) chance of P and that is what the each deserve. Michael Moore quickly demolished Lewis's argument. Among his argument is that Ben isn't really punished at all--an unrealized risk of P is no punishment at all. And if the punishment is supposed to be proportional to the culpability, then Lewis's scheme breaks down in the real world. Take Carla who acts in a way that creates a 90% risk of harm H and Dan who acts in a way that creates a 10% risk of H. Carla is more culpable than D, but both will recieve P if they succeed because both have attempted the same crime--the intional creation of harm H. This discussion got me thinking. Suppose we tweak Lewis's idea in the following way. Let's not have a punishment lottery. Let's have a mercy lottery. Give those who attempt and succeed punishment P--the punishment they deserve. Then let's conduct a mercy lottery, letting failure operate as a winning ticket in the lottery. No one gets more punishment than they deserve, although some get less. Who has a just ground to complaint? Not those who attempt and succeed: they get what they deserve. Not those who attempt and fail: they get a lighter punishment than they deserve and have no just ground for complaint. Not the victimes of crimes: those who perpetrated the offense against them are those who get the punishment they succeed. If society has instrumental reasons to conduct such a lottery, no one has a just complaint. If a mercy lottery is wrong, it must be because undeserved mercy is wrong. Daniel Markel has an interesting draft paper on this topic--but I don't think it is yet available on line.

Just My Luck, Part Two I am blogging again from the Roundtable on Moral Luck at USD. The Friday afternoon session was all about libertarianism and compatabilism--that is we talked about free will and determinism. There was a lively discussion of articles by Thomas Kane, Alfred Mele, and Derk Pereboom. One of the most interesting parts of the afternoon was a conversation after we broke with Steve Smith (USD) about the the driving force behind the free-will/determinism debate outside of professional philosophical circles. IMHO, in the popular culture, the free will determnism debate links up with the debate between dualists and materialists. Folk dualist libertarianism is the nonphilosophical version of the view that we are free because we have noumenal selves--or souls if you prefer. Folk dualists have a hard time understanding how we could be free if we are just material stuff--machines. Folk materialist compatabilism is the nonphilosophical view that we are just material stuff and that we are free nonetheless. Many reflective nonphilosophers find the free-will/determinism debate to be irresolvable--an antinomy of reason, if you like. Here is a possible diagnosis of how one might come to such a position. Imagine that you start as a folk dualist libertarian. You think freedom depends on dualism. Then you become convinced that dualism is untenable, but you still believe in freedom of the will--perhaps on the basis of the internal perspective. From the inside, you just know that we are free. Now, you have two inconsistent views. Because libertarianism acquired its meaning for you while you were still a dualist, the compatability account seems to miss the point. So you are stuck. A fancy way of saying you are stuck is to say that there is an irresolvable conflict in the way we think about the world. Today, the Roundtable turns to the law. First up is the relationship between luck and the criminal law--articles by Joel Feinberg, David Lews and Arthur Ripstein are on the table.

Congratulations To Rick Hasen for the 10,000th hit at Election Law Blog!

Friday, April 25, 2003
Just My Luck, Part One I'm attending the roundtable on Moral Luck here at San Diego today. I've always thought that the real point of Williams's article was directed at Kant and contemporary Kantians. In particular, Williams aims at the idea that only a good will counts for purposes of moral evaluation. As I see Williams's argument, his aim is to undermine this idea by showing the relevance of luck to moral evaluation. Williams's most famous example from Williams's article is Gaughin. Williams argued that Gaughin's choice to leave his family might in some sense have been redeemed by the fact that it turned out that he was a great painter--a matter of luck. Lot's of very interesting comments, but one that sticks was an early comment by Michael Moore--who observed that many of the examples in the moral luck debate stretch the ordinary concepts of luck and control out of recognition. One can say that it is a matter of luck whether a giant goose flies between the gun and the victim just at the right time to prevent a murder--but our ordinary usage of luck would not encompass the case where the goose never arrives. That would be an ordinary case of a result--the killing--within the control of the actor. I was especially pleased to hear Bob Adams (from whom I had a course in Leibniz when he was at UCLA) discuss his famous piece on Involuntary Sin Richard Arneson kept the proceedings lively by offering a consequentialist account of whatever topic was on the table. Heidi Hurd, Thomas Hurka, and David Brink all had many interesting things to say. I've got to finish the readings for the early evening session. Just my luck.

Moral Luck at the University of San Diego The University of San Diego’s Institute for Law and Philosophy is hosting a Roundtable on Moral Luck today and tomorrow. The Roundtable plays off the debate that started with Bernard Williams's famous essay, Moral Luck, which sparked a slew of responses and developments. The list of participants includes:
    Bob Adams (Yale, Philosophy) Larry Alexander (University of San Diego) Richard Arneson (UC San Diego, Philosophy) David Brink (UC San Diego, Philosophy) Kevin Cole (University of San Diego) Heidi Hurd (Illinois) Thomas Hurka (Toronto, Philosophy) Alison MacIntyre (Wellesley, Philosophy) Michael Moore (Illinois) Dana Nelkin (UC San Diego, Philosophy) Stephen Perry (Penn) Sam Rickless (UC San Diego, Philosophy) Connie Rosati (UC Davis, Philosophy) Maimon Schwarzschild (University of San Diego) Emily Sherwin (University of San Diego) Steve Smith (University of San Diego) Tom Smith (University of San Diego)

New on SSRN for Friday, Part One There is an unusually large number of new papers on SSRN. I’ve divided them into three batches. Here is the first:
    Kenneth Simons (Boston University) offers Should the Model Penal Code's Mens Rea Provisions Be Amended?, forthcoming in the Ohio State Criminal Law Journal. Here is an excerpt:
      The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea. However, a revised Code could improve the drafting of the mens rea provisions in a number of respects:
        * Clarify how to distinguish result, circumstance, and result elements * Simplify the definitions of knowledge and purpose * Perhaps eliminate the category of mens rea as to conduct * Clarify the fact/law distinction, and especially the distinction between two types of mistakes of law - mistakes of governing law and mistakes of legal element - that the MPC treats differently * Clarify the meaning of the "reasonable person" test * Clarify the definition of willful blindness
      Moreover, more fundamental questions arise with the central concept of recklessness. A reckless actor is one who must be aware of a "substantial and unjustifiable" risk; are these independent or interdependent requirements? What type or degree of consciousness is required? Of what, precisely, must the actor be aware? Does a strict "consciousness" requirement undermine the rule that ignorance of law is no excuse? And should consciousness extend to "latent" knowledge that the actor could call up if he were to consider the matter even for a moment? Furthermore, does the MPC hierarchy always work? Is knowledge really always worse than recklessness? Is recklessness always worse than negligence? Should culpable indifference or a similar mental state be added to the hierarchy? Are the MPC categories too cognitive, or too descriptive, or too rigid? Finally, the conclusion examines some theoretical and pragmatic implications of the analysis.
    Michael Kent Curtis (Wake Forest) uploads Judicial Review and Populism, forthcoming in the Wake Forest Law Review. Here is the abstract:
      Some critics of judicial review are calling for a populist or "democratic" constitution. They advocate abolition of judicial review in the name of greater democracy. This paper explores reasons to be skeptical of the call to eliminate judicial review. First, some critiques too quickly identify "the people" with elected officials. As a result, they underestimate the contribution judicial review can make to democracy. Second, the focus on eliminating judicial review as a means of achieving democratic politics is not accompanied by a searching examination of what would be required for a strong democracy. Instead of an obsessive focus on the counter - majoritarian difficulty caused by judicial review, we need to give attention to the majoritarian difficulty - the obstructions we face to a meaningful democratic process. Rather than abolish judicial review, this paper calls for us to broaden the conception of what we see as a constitutional question and to consider what constitutional reforms (using the word "constitutional" in its broad sense) would be required for greater democracy. That would require a shift from obsessive focus on the Court and the document to a wider focus on basic factors that influence what sort of a constitution - in the larger sense - we have. Popular constitutional argument has at times served some of the functions we expect from judicial review. Greater acceptance and appreciation of the role of popular constitutional argument might also contribute to a more democratic constitutionalism.
    Jack Balkin (Yale) posts Idolatry and Faith: The Jurisprudence of Sanford Levinson, forthcoming in the Tulsa Law Journal. Jack's gives his take on Sandy Levinson's famous distinction between the catholic (centralized, hierarchical) and protestant (decentralized, egalitarian) approaches to constitutional interpretation. Jack argues that this distinction can be deconstructed. For example, protestant interpretation leads to the emergence of new readings of the constitution which acquire political backing and become the catholic interpretation. Jack is the expert, and if he calls this kind of analysis deconstruction--then it is, but I would have thought that his deployment of Levinson's ideas was more application than deconstruction. It's a nice paper, and part of a well-deserved tribute to Sandy--surely at the top of the list for iconoclastic originality in constitutional theory and one of the most humane members of the legal academy.

New on SSRN for Friday, Part Two Here is the second batch:
    Lynn Lopucki (UCLA) uploads The Nature of the Bankrupt Firm: A Reply to Baird and Rasmussen's 'The End of Bankruptcy', forthcoming in the Stanford Law Review. Here is a tidbit:
      In an article recently published in the Stanford Law Review Professors Douglas G. Baird and Robert K. Rasmussen assert that big-case bankruptcy reorganizations have "all but disappeared" and give three theoretical explanations. This reply provides empirical evidence that the assertion is wrong; reorganizations not only survive but are booming. It then explains how their theoretical explanations led Baird and Rasmussen to the wrong conclusion.
    Christopher Drahozal (Kansas) provides A Behavioral Analysis of Private Judging. Here is a snippet:
      Much attention has been given to how cognitive illusions - both heuristics and cognitive biases - affect decision making by juries. Less, albeit increasing, attention has been given to how cognitive illusions affect decision making by judges. Almost no attention, however, has been given to how cognitive illusions might affect decision making by arbitrators. This article extends the behavioral analysis of the legal system to private judging, and considers the implications of that analysis for the debate on pre-dispute consumer arbitration clauses. Empirical evidence on the effect of cognitive illusions in arbitral decision making is extremely limited. Further complicating the analysis of private judging are structural differences between arbitration hearings and jury trials, which may heighten or dampen the effect of cognitive illusions on decision making in the real world. If arbitrators are assumed to be more like judges than jurors in their decision making - a seemingly reasonable assumption – studies comparing the effect of cognitive illusions on judges and jurors provide at least a starting point for making predictions about arbitral decision making. On this view, the article reaches the very tentative conclusion that arbitrators, like judges, may be less susceptible to at least some cognitive illusions than jurors. If subsequent research bears out this tentative conclusion, it would have important implications for the ongoing debate over consumer arbitration. If arbitral decision making is less subject than jury decision making to the effects of cognitive illusions, then the use of arbitration may improve the accuracy of dispute resolution, reducing the risk of overcompensation (rather than resulting in undercompensation). This is not to suggest that such utilitarian arguments should be used to override constitutional protections, or that the jury might not serve other functions than simply dispute resolution. Instead, the point simply is that when Congress (or another policy maker) is considering whether to restrict the enforceability of consumer arbitration agreements, it should not assume that juries necessarily make "better" decisions than arbitrators. To the contrary, restricting the availability of arbitration may reduce the accuracy of dispute resolution, thereby imposing real costs on the parties to consumer contracts.
    Larry Ribstein (Illinois) posts The Structure of the Fiduciary Relationship. From the abstract:
      Fiduciary duties might be said to grow out of a variety of relationships involving one party's exercise of some measure of control. Fiduciary duties therefore are "structural" in the sense that they arise from the structure of the parties' relationship rather than from the parties' individual attributes, such as ignorance and lack of sophistication. This view of fiduciary duties is bound with the contractual nature of fiduciary duties. Moreover, this article shows that there are significant costs in extending fiduciary duties beyond the specific situation in which they are most appropriate - that involving clear separation of management powers and ownership. Extending fiduciary duties beyond this paradigm case increases litigation and contracting costs, decreases the effectiveness of owners' governance rights, and dilutes true fiduciaries' legal and extralegal incentives.
    Lucian Bebchuk and Oliver Hart (Harvard) have uploaded Takeover Bids vs. Proxy Fights in Contests for Corporate Control. Here is a taste:
      This paper evaluates the primary mechanisms for changing management or obtaining control in publicly traded corporations with dispersed ownership. Specifically, we analyze and compare three mechanisms: (1) proxy fights (voting only); (2) takeover bids (buying shares only); and (3) a combination of proxy fights and takeover bids in which shareholders vote on acquisition offers. We first show how proxy fights unaccompanied by an acquisition offer suffer from substantial shortcomings that limit the use of such contests in practice. We then argue that combining voting with acquisition offers is superior not only to proxy fights alone but also to takeover bids alone. Finally, we show that, when acquisition offers are in the form of cash or the acquirer's existing securities, voting shareholders can infer from the pre-vote market trading which outcome would be best in light of all the available public information. Our analysis has implications for the ongoing debates in the US over poison pills and in Europe over the new EEC directive on takeovers.
    Chenggang Xu (London School of Economics & Political Science) and Katharina Pistor (Columbia) upload Law Enforcement under Incomplete Law: Theory and Evidence from Financial Market Regulation. From the abstract:
      This paper studies the design of lawmaking and law enforcement institutions based on the premise that law is inherently incomplete. Under incomplete law, law enforcement by courts may suffer from deterrence failure. As a potential remedy a regulatory regime is introduced. The major functional difference between courts and regulators is that courts enforce law reactively, that is only once others have initiated law enforcement procedures, while regulators enforce law proactively, i.e. on their own initiative. We study optimal regime selection between a court and a regulatory regime and present evidence from the history of financial market regulation.
    Leila Sadat (Washington University) offers Terrorism and the Rule of Law. Here is a taste:
      In Terrorism and the Rule of Law, I argue that a "rule of law" approach to the use of force is not only required by the United Nations Charter framework, but is the strategy most likely to be successful in the long term in protecting the national security of the United States. Specifically, rather than attempting a post-hoc rationalization of what the United States did after September 11, 2001, I suggest that what it could and should have done was to obtain a Security Council Resolution specifically authorizing the Afghan campaign. Such a Resolution would have been, in my view, not only attainable, but desirable. I conclude that the U.S. lost a tremendous opportunity to reinforce norms of international law that could now assist it in its struggle against international terrorism, and suggest that the current unilateralist tendencies of the government are generally destabilizing and potentially injurious to U.S. interests.

New on SSRN for Friday, Part Three And here is the third batch of papers:
    Robert Scott (Virginia) posts A Theory of Self-Enforcing Indefinite Agreements.
    Amitai Aviram (George Mason) uploads Cyclical Market Power.
    Vasan Kesavan posts When Did the Articles of Confederation Cease to Be Law?, forthcoming in the Notre Dame Law Review.
    Jenia Iontcheva (Chicago) provides Jury Sentencing as Democratic Practice, forthcoming in the Virginia Law Review. Here is a taste:
      After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to leave the sentencing decision with a deliberative democratic institution - the jury. This Article makes the case for jury sentencing from three perspectives: the historical, the theoretical, and the practical. Part I of this Article surveys the history of jury sentencing from colonial times to the present. This history reveals that jury sentencing - a uniquely American innovation - was a valued democratic institution in the early republic, but was gradually abandoned in the twentieth century as scientific approaches to punishment came into favor. The most recent developments from the Supreme Court suggest, however, that jury sentencing may be on the rise again. Part II enlists the insights of modern political theory, and particularly, the ideas of deliberative democratic theory, to show that the movement away from jury sentencing has not been entirely healthy for either the sentencing process or our democracy as a whole. Part III addresses the practical objections that have been leveled against jury sentencing, and suggests that the vast majority of these are either exaggerated or equally present in alternative sentencing regimes. The jury, therefore, emerges as an equally competent, yet more legitimate sentencing institution. Finally, Part IV outlines the actual contours of a possible jury sentencing regime that balances the democratic virtues of jury involvement with efficiency, uniformity, and other values important to the sentencing process.
    Douglas Kysar (Cornell) and James Salzman (American) offer Environmental Tribalism, forthcoming in the Minnesota Law Review.

Thursday, April 24, 2003
Downward Spirals Department Today's New York Times has an editorial opposing the confirmation of Judge Carolyn Kuhl to the Ninth Circuit. In the current political climate, charges of politicization usually are made by Republicans against Democrats (switching roles from the Clinton years), but the NYT editorial argues that giving Kuhl a hearing constitutes an escalatory move by Republicans:
    It shows how politicized the selection of judges has become that Judge Kuhl received a hearing at all. In the past, the Judiciary Committee often would not consider a nominee who lacked the support of both senators from the person's home state. The Republicans have pushed Judge Kuhl forward even though Senator Barbara Boxer has not endorsed her. They have also trampled on the Senate's traditional courtesies by reporting out Priscilla Owen for a Fifth Circuit judgeship, even though the committee rejected her last year.
I am sure that Republicans will argue that giving Kuhl a hearing is only "tit for tat" in response to political use of blueslipping by Democrats. Democrats will disagree with this assessment. Such asymmetrical perceptions feed the downward spiral of politicization that has characterized the confirmation wars of the last several years.
Post Script: And speaking of downward spirals, check out my colleague Rick Hasen's post on recent proposals for President Bush to do an end run around fillibusters and blueslipping by making use the recess appointments clause. And Brett Marston on the history of recess appointments. And Howard Bashman on the constitutionality of recess appointments with more here. New: I have added a post to Legal Theory Annex that gives links to all of my posts on the downward spiral of politicization in one handy dandy spot.

Jacob Levy on Libertarians and Contemporary Politicsa Jacob Levy has a nice post on the relationship of Libertarians to the Republican Party--responding to this post by Eugene Volokh. If you have arrived here from the link in Jacob Levy's post that refers to my post on religion and politics, follow this link. Also, you may be interested in Randy Barnett's National Review piece: Keeping Libertarians Inside the Tent.

Ken Simons on Modal Realism & Legal Theory On April 14, I posted on Modal Realism & Legal Theory, playing off a paper by Allan Hazlett (Brown, Philosophy)entitled On the indifference objection to the indexical theory. Ken Simons (Boston University) offers these thoughts on my post:
    Your recent discussion of modal concepts and possible worlds prompts me to write.
    I agree with you that counterfactual questions are quite important in law (and in moral reasoning), and are often quite legitimate. But I also think that a counterfactual perspective is sometimes highly problematic. A taxonomy of contexts in which such perspectives are employed would be helpful in isolating which contexts are especially problematic.
    Here is an initial effort to develop a taxonomy:
      1. Causation. The prevalent view of "factual" causation is counterfactual: with certain exceptions for overdetermination, X is a cause of Y only if, but for X, Y would not have happened.
      2. Compensatory damages. Here, the prevalent view is that this remedy puts the victim in a position equivalent to not having suffered the wrong at all. This equivalence can be cashed out in terms of the victim’s subjective indifference, or perhaps in terms of objective value; either way, a counterfactual judgment is necessary.
      3. Thought experiments to test the scope and content of a normative argument, by varying facts or factual presuppositions. The Socratic technique is usually employed this way.
      4. Baselines. Insofar as the threat/offer distinction is relevant (to unconstitutional conditions analysis, or extortion, or duress, etc.), one common strategy is to ask whether the actor is proposing to make the victim worse off than she (a) was, or (b) would have been in the future, or (c) was entitled to be.
      5. Risk and ex ante analysis. Insofar as the legal system imposes liability or sanctions for negligence, recklessness, attempts, or any other form of conduct that creates risk but does not cause actual harm, a judgment is required as to what could have happened (but did not).
      6. Criteria for specific concepts, such as "intention" or "purpose." Thus, on one view, "purposeful" discrimination is action taken "because of" (and not "in spite of") its expected negative effect on a protected group (women, a racial minority). Counterfactually, if that effect on that group was not expected, then the actor would not have taken the action. (This is also one way to articulate the doctrine of double effect, which distinguishes purpose from knowledge, and which considers purposeful causation of a harmful means or end unjustifiable, or less justifiable than the knowing causation of a harmful side-effect.)
    In this last, kitchen-sink category is a pet project of my own: making sense of the mental state of "culpable indifference," and refuting the objection that punishing criminals for "indifference" is unjustified because this is simply punishment for "character" rather than for conduct or choices. My thoughts on this are contained in: Does Punishment for 'Culpable Indifference' Simply Punish for 'Bad Character'? Examining the Requisite Connection between Mens Rea and Actus Reus.
Here is an excerpt from the abstract of Ken's paper:
    Two types of culpable indifference standards are distinguished. The first is a cognitive counterfactual criterion, and it asks whether the actor would have chosen to create a risk even if he had a higher degree of confidence (than he actually had) that it would result in harm. This approach must be carefully circumscribed in order to avoid the "punishment merely for character" objection. The second type of culpable indifference standard is an idealized counterfactual criterion, and it asks whether (and to what extent) the actor's conduct falls short of what an idealized, non-indifferent person would do. This approach does not pose the "punishment for character" objection; however, it raises serious problems of vagueness. To some extent, these problems can be overcome by articulating more specific, multiple criteria of culpable indifference (for example, the actor's intent to create a risk, or his participation in an immoral or illegal activity, or, as a mitigating factor, his efforts to avoid harm).
Download Ken's very interesting paper! And if you are interested in Counterfactuals, get David Lewis's amazing book Counterfactuals.

Thursday Workshops The year is winding down, but there are still workshops. Here is the roundup:
    At Boston University, David Lyons workshops Reparations and Corrective Justice.
    At Kadish, Josh Cohen presents Minimalism About Human Rights: The Most We Can Hope For? Here is a taste of Josh's paper:
      The central idea of justificatory minimalism is that a conceptio n of human rights—including an account of their content, role, and rationale—should be stated autonomously: independent of particular philosophical or religious theories that might be used to explain and justify its content. Jacques Maritain—perhaps the central figure in mid-20th efforts to reconcile Catholic social thought with democracy and human rights, and who participated in discussions leading to the Universal Declaration—formulated the idea as follows: “Yes, we agree about the rights, but on condition that no one asks us why.” The point of developing a conception of human rights, capable of being shared by adherents to different traditions, he said was to create agreement “not on the basis of common speculative ideas, but on common practical ideas, not on the affirmation of one and the same conception of the world, of man, and of knowledge, but on the affirmation of a single body of beliefs for guidance on action.”
    Josh was visiting at UCLA when I was in my final year as an undergraduate there. He taught Marx and and a graduate seminar in Hegel. The Hegel seminar was a wonderful experience, and the ability to work with Hegel's Philosophy of Right is a great gift for which I am very grateful to Josh. Read his paper. Everyone knows that Josh is supersmart and passionate--two qualities that are not always joined.

Wednesday, April 23, 2003
APA Central Division The American Philosophical Association's Central Dvisions meets today through Saturday. As usual, there are a varietyof papers of interest to legal theorists. Here is a sampling:
    David A. Billings (Calvin College) presents Kantian Objections to a World State:
      In this paper I critically examine Kant's objections to a world state. After explaining the difference between a world state and a world federation, I reconstruct a case against a world state based upon the principles that underlie Kant's objections. Two distinct lines of argument emerge. The first concerns the risks of harm associated with a world state. The other line of argument — which, however, is very far from being explicit in Kant's writings — suggests that there is no transition to the world state compatible with the requirements of justice. I find that Kant's objections, though not without merit, are not compelling as he developed them. Yet despite the weaknesses, they do pinpoint areas that should be of concern even today for both world state supporters and opponents.
    Frederick Rauscher (Michigan State University) presents Dissecting Juristic Trickery: Kant on Punishment and the Social Contract:
      I assess Kant's responses to Cesare Beccaria's argument that capital punishment is wrong because no one could will in a social contract to lose one's own life. Because Kant agrees with Beccaria that punishment is harm done by the state to a person against the person's will, and because Kant also agrees that the social contract is a product of the will, he must explain how punishment nonetheless is not a contradiction in will. I review various arguments Kant uses in his unpublished Nachla8 and his published Doctrine of Right to attempt to resolve this problem, showing why he rejects most of these approaches. The successful argument Kant finally uses reveals the nature of the rational will in Kant.
    Linda Radzik (Texas A&M University and University of Minnesota, Twin Cities) presents Do Wrongdoers Have a Right to Make Amends?
      Do people deserve a chance to right the wrongs they have committed? Would denying an offender the opportunity to make amends amount to an injustice? It turns out that there are many reasons to grant such a right. However, there is also one powerful objection to a right to make amends. This alleged right threatens to put undue pressure on victims to forgive their abusers. In this essay, I will argue that this objection can be met and that wrongdoers do indeed have a right to make amends.
    David Lefkowitz (University of Maryland, College Park) presents Defending a Duty to Obey the Law as the Correlative of a State's Right to Rule
      William Edmundson has recently argued that a legitimate state's right to rule correlates with a general prima facie duty not to interfere with the law's administration (DNI), rather than with a general prima facie duty to obey the law (DOL). Properly understood, a DOL can meet two criticisms Edmundson raises against it: the stop sign in the desert case and the requirement of content-independence. The immunity of a DNI to these criticisms, therefore, does not prove its superiority to a DOL. Moreover, Edmundson fails to adequately address the gap his view creates between a state's justified claim to create a DOL, and its subjects having only a DNI. This weakness in his argument provides one reason to conclude that if a legitimate state has a right to rule that correlates with a duty on the part of its subjects, that duty is a DOL, and not a DNI.
    Avery H. Kolers (University of Louisville) presents Justice and the Politics of Deference:
      Moral progress is not evident within extant political systems. A good-faith commitment to justice therefore requires oppositional collective action. Collective action requires that agents be in solidarity. Solidarity, a deferential notion, requires agents to subsume their judgment under that of others. Solidary actors accept judgments on the basis of provenance, not substance. This paper articulates and defends a moral principle of "progressive solidarity," which guides oppositional political action. Progressive solidarity requires deference to the decisions of the least well off. Although some room remains for individual judgment, solidarity nonetheless challenges moral autonomy. The paper distinguishes solidarity from sympathy and other similar attitudes, and concludes by defending the "provenancial" account of responsibility which solidarity entails. Solidarity contravenes cherished assumptions about individual responsibility, but solidarity is a crucial moral principle, required if we are to work effectively for justice.
    Ciaran Cronin (University of Illinois, Chicago) presentts Rational Faith and Democratic Legitimacy: Habermas and Michelman on Constitutional Founding:
      Jürgen Habermas's attempt to reconcile constitutionalism or the rule of law and democracy through a proceduralist theory of deliberative democracy has been criticized by Frank Michelman on the grounds that his discursive criterion of democratic legitimacy is in reality a substantive one and his proceduralism becomes embroiled in a regress of justifications. Habermas responds that these problems can be overcome provided that we distinguish between the conceptual reconstruction of the system of rights and their implementation in democratic "constitutional projects." In this paper I argue that Habermas's account of normative validity in terms of hypothetical agreement under ideal conditions of discourse does offer a viable procedural account of democratic legitimacy. However, his model of retrospective legitimation of the constitution remains vulnerable to an epistemic version of Michelman's regress objection. Ultimately, their dispute turns on contrasting models of rational faith informed by their respective disciplinary approaches, but Habermas's faith is nevertheless the one liberal democrats should embrace.
    Benjamin S. Yost (University of California, Berkeley) presents On the Necessity of the Death Penalty in Kant's Moral and Political Philosophy:
      In this presentation, I will discuss the importance of the death penalty in Kant's moral and political philosophy. In my view, Kant's explicit arguments for the death penalty in the Metaphysics fail. But I still think the death penalty is a fundamental component of Kant's thought. I will first suggest that Kant's view of the death penalty is rooted in his concept of the person, or more specifically, within the relation to death that is correlative to becoming a person. I will then argue that the death penalty is a necessary component of Kant's philosophy of right, because he thinks that if a civil society lacked the death penalty, it would be unable to recognize itself as a just civil society — a society that respects the personality of its citizens — and would be incapable of actualizing a just system of laws.
    Walter E. Schaller (Texas Tech University) presents Neutrality of Justification vs. Strong Egalitarianism: Wall's Criticisms of Rawlsian Liberal Neutrality:
      In a recent article ("Neutrality and Responsibility," Journal of Philosophy, 98 [2001]), Steven Wall criticizes two ways in which defenders of neutrality of justification (NJ) might seek to limit the state's responsibility for the non-neutral outcomes of laws and policies (and thereby neutrality of effect). They could invoke the intending/foreseeing distinction but this would bring NJ into conflict with strong egalitarianism (which holds the state responsible for at least some unintended, non-neutral outcomes) and which is endorsed by many justificatory neutralists. They might also appeal to the distinction between two kinds of disadvantage—resource and environmental—and hold the state responsible only for intended environmental disadvantages. Focusing on Rawls as a representative proponent of neutrality of justification, I argue that it is possible to reconcile neutrality of justification and strong egalitarianism without appealing either of those two problematic distinctions.

Review of Sunstein's Risk and Reason Kristin Shrader-Frechette (Notre Dame, Philosophy) reviews Cass Sunstein's Risk and Reason on Notre Dame Philosophical Reviews. Here is a taste:
    What can be said for Sunstein’s proposals? Critics err if they dismiss his book because of its advocating CBA [Cost Benefit Analysis]. And many philosophers (like Hubert Dreyfus, Doug MacLean, Alasdair MacIntyre, or Mark Sagoff) arguably miss the mark when they reject use of CBA. They err if they presuppose that (1) because CBA is not sufficient for rational societal decisionmaking, it is not necessary; (2) it is reasonable to ignore attempted calculation of relevant benefits and associated costs of proposed societal actions; (3) Ron Giere, Alex Rosenberg, and Pat Suppes are wrong in showing CBA is merely a formal calculus, capable of being interpreted in terms of any benefits and costs, even nonutilitarian ones; (4) there are reasonable ways to address the problem of social choice that ignore CBA; (5) less transparent alternatives (to analytic methods like CBA) are more susceptible to democratic control than CBA; and (6) there are no financial constraints on real-world decisionmaking. If such presuppositions about CBA err, and if many philosophers and environmentalists rely on them to dismiss CBA too crudely, what can be said about Sunstein’s position? The problem arguably is not his advocating CBA, but (A) his adopting CBA as the final or sufficient condition for all societal decisionmaking and (B) his supporting a version of CBA that requires only market parameters and willingness-to-pay criteria. (A) is flawed because CBA is only necessary, not sufficient, for policy, given the arguable need to recognize ethical and legal constraints on decisionmaking. And (B) is questionable, given that even market proponents correct for market flaws (caused by factors such as speculative instabilities, monopolies, lack of competition or full information, free goods like air and water, or public goods). Even market proponents avoid begging rights questions by using both willingness-to-accept and willingness-to-pay criteria, not just the latter, as Sunstein does. (B) also is contrary to recommendations by the World Resources Institute, many third-world economists, and experts such as Bill Schulze and Alan Kneese. But if so, Sunstein’s main problem may be not his advocating CBA , but his recommending only CBA (and only a crude interpretation of it) for societal decisionmaking.

New on SSRN Here is the roundup of the latest batch of legal theory papers:
    Michael Birnhack and Niva Elkin-Koren (University of Haifa) upload The Invisible Handshake: The Reemergence of the State in the Digital Environment, forthcoming in the Virginia Journal of Law & Technology. Here is a taste:
      The article examines shifts in the role of the State in the information environment, and focuses on the recent, innovative, cooperation between the State and private parties. We argue that while assuming the role of a regulator, the State allowed private nodes of control to emerge and develop in the information environment. We describe how the regulatory regime of the 1990s facilitated this process. When the State now seeks to seize control in the information environment it utilizes these private nodes of control to combat terror. The invisible hand turned out to be very useful for the State, and it is now replaced with a handshake between the State and the private sector. It too, is invisible. The article seeks to make the invisible handshake visible, identifying the legislation that enables the State to seize control in the decentralized borderless information environment. The article traces this intriguing process of recruiting private parties for governing tasks, and analyzes its ramifications for the Internet.
    David Bernstein (George Mason) posts Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism. Here is a taste from the abstract:
      Lochner v. New York and its eponymous jurisprudential era have been central to constitutional discourse and debate in the United States for nearly one hundred years. Until recently, the legal community's understanding of the Lochner era was clouded by myths left over from the ideological and political battles of the Progressive and New Deal eras. In particular, the Lochner era Justices were portrayed as reactionary Social Darwinists who sought to impose a system of economic laissez-faire on the public. More recently, revisionist historians have disproved this and other myths, and have attempted to construct a more historically-grounded understanding of the Lochner era. The most popular revisionist work is Howard Gillman's book, The Constitution Besieged. Gillman contends that the Lochner era Court was motivated by opposition to "class legislation," what today we would call special interest legislation. However, Gillman grossly overstates the role of class legislation analysis on the police powers jurisprudence of the United States Supreme Court during the Lochner era. Rather, as this Article shows, the basic motivation for Lochnerian jurisprudence was the Justices' belief that Americans had fundamental unenumerated constitutional rights, and that those rights were protected by the Fourteenth Amendment's Due Process Clause. The Justices had a generally historicist outlook, seeking to discover the content of fundamental rights through an understanding of which rights had created and advanced liberty among the Anglo-American people. This Article, then, argues that the jurisprudential significance of Lochner was not, as Gillman and his supporters would have it, that the Court enforced a ban on class legislation. Quite the opposite, Lochner's primary importance is that it moved the Supreme Court away from class legislation (equal protection) analysis of police power legislation to an analysis that relied on the Justices' understanding of the fundamental liberties of the American people. In this regard, Lochner was the progenitor of modern substantive due process cases such as Griswold v. Connecticut and Roe v. Wade. Some will argue that the current Court should reassess its endorsement of Roe, because it is in the same tradition as Lochner. But perhaps the proper reaction to the conclusion that Lochner and Roe are in the same fundamental rights tradition is to reassess our understanding of Lochner.
    Richard Epstein offers The 'Necessary' History of Property and Liberty, forthcoming in the Chapman Law Review. Here is the abstract:
      The constitution contains many disparate structural provisions and guarantees of individual rights: federalism questions under the commerce clause start in very different places from the protection of speech, religion or property. Yet the differences are often misleading. In each case the structure of the argument is identical: what is the basic interest that is protected, what justifications can be posed for its limitation, with or without compensation. Where an intermediate or strict standard of review is proposed, the nature of these inquiries all collapse to the single question of whether government intervention overcomes some market imperfection relating to negative externalities (force and fraud) or monopoly and coordination problems. Where the standard of review is reduced to rational basis, then the structure of basic rights and the justifications for their restriction becomes ill-formed and ad hoc. The conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose.

Milestones Department Legal Theory Blog got its 10,000th hit for April at 10:34 pm PDST tonight.

Tuesday, April 22, 2003
Religion, Ideology, and Judicial Selection
    Religious Tests? Brendan Miniter has a piece in arguing that some Democratic Senators are imposing a religious test on Bush nominees--focusing in particular on Senator Schurmer's criticisms of James Leon Holmes, nominated to a District Court in Arkansas. Here is a passage:
      In Mr. Holmes's case the attacks are shocking, for the Democrats are openly targeting his religious convictions. . . . The [lightning] rod here, of course, is abortion. It's no secret that the pope and the Catholic Church are squarely against abortion on demand. And Mr. Holmes, who once served as president of Arkansas Right to Life, is an orthodox Catholic. He's written articles against abortion and has even -- God forbid -- defended the rights of people to peaceably protest against the practice.
    Eugene Volokh responds in a post (with more here) early this morning:
      The trouble with this argument is that it cites no evidence that Holmes -- who, for all I know, may well be an excellent candidate -- is being attacked for his religion as such. Rather, the concern seems to be with his idelogy, some of which flows from his religion. Of course, there is a hot debate going on about the extent to which Senators (or Presidents) may consider a judicial candidate's ideology in deciding whether to confirm (or nominate) him. But if it is proper for them to consider the candidate's ideology, then it must be proper regardless of whether the candidate's ideology flows from his religion.
    Ultimately, I think Eugene is right, but I'd like to suggest that there is a more complex issue here--concerning the role of religion in judging in particular and public political debate in general.
    An Ideal of Public Reason For many years, there has been an interdisciplinary debate (both in and out of the academy, engaging political scientists, theologians, philosophers, and legal theorists) on the role of religion in public political life. This debate can be framed in a variety of ways. One famous framing device is the metaphor of the public square, and the question is whether religious discourse should enter the public square. Although this image can help to illustrate an argument for the inclusion of religion, it does not illuminate the underlying theoretical issues. A better way of framing the question is in terms of an ideal public reason. Here is the way I put a few years ago:
      How should citizens in a modern pluralist democracy debate and discuss public affairs? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. Thus, an investigation of the idea of public reason may illuminate the relationship between religion and politics. (From Constructing an Ideal of Public Reason).
    There is quite a range of opinion on this issue, but here are three options:
      --An exlusionsary view. On might think that religious reasons should not be considered in public political debate.
      --An inclusionary view. On might think that religious reasons may be included in public political debate, so long as public reasons are also provided. Thus, a religious citizen could a religious reason so long as she gave the public reason which it supports.
      --An laissez faire view. On might think that all sorts of reasons are consistent with the virtues of good citizenship, including religious reasons.
    I participated extensively in this debate in the 1990s, and my general sense was that seemingly opposing positions tended to converge on variations of the inclusive view--once everyone had an opportunity to clearly state their full position.
    From Public Political Debate to Judging What about judges? What reasons may they rely upon? Of course, this question is bound up in one's theory of judging. On some theories of judging, the only good reasons are legal reasons--and hence a virtuous judge should never rely upon religious reasons. Here is a highly stylized version of the options:
      --Neoformalists, for example, think that judges should rely on reasons that are grounded in the plain meaning of legal texts, the original meaning of constitutional provisions, constitutional structure, the holdings of prior decisions, and so forth.
      --Neorealists have an instrumentalist conception of judging--for them extralegal reasons may be brought to bear directly in the decision of particular cases. Neorealists, then, need an ideal of judicial reason--one that sorts the possible arguments of policy, fairness, and virtue into two categories: (1) appropriate for as instrumental reasons for judicial decision making, and (2) inappropriate for that purpose. As a result, neorealists must decide whether religious reasons belong in the former or the latter category. May a judge properly bring her religious reasons to bear in making a decision? If so, can she include them in the opinion she writes?
    Religious Tests and Judicial Selection The Constitution disallows religious tests for office. What does this mean? Article IV, Clause 3 states, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." What does this mean in the context of judicial selection? Let's start with the easy points and move to the more difficult ones:
      --Presidents and Senators cannot require judges to be members of a particular religious faith, to affirm particular religious beliefs, or to be religious as opposed to nonreligious. Of course, this constitutional command is probably not judicially enforceable--except to the extent that a formal mechanism was created to enforce the religious test. If Presidents or Senators privately impose religious tests, there is nothing the courts could do about it.
      --Presidents and Senators can consider the judicial philosophies of individual judges, even though those philosophies are grounded by the religious beliefs of the candidates. Thus, if a candidate believed that judges should decide according to law and should not consciously decide cases on the basis of her own moral and political beliefs, the President could count that tenet of judicial philosophy as a plus factor--even if the candidate herself believed this because it was supported by the teachings of her religion. Similarly, if a candidate believed that judges should decide cases directly on the basis of religious teachings (e.g. on the basis of Islamic religious law or on the basis of the Christian bilbe or on the basis of the Talmud), then that could be considered a disqualifying tenet of judicial philosophy--even though it was religious in nature.
    And it doesn't go beyond the easy cases, if one is a neoformalist. Neoformalists believe we should select judges who will decide on the basis of the law. Neoformalists are not naive. They recognize that in hard cases, even judges who conscientiously try to find the legal solution to the problem when undoubtedly be casually influenced by their polticial ideology and religious beliefs. But because it is possible to confine the influence of ideology, a neoformalist President or Senator could select a judge from an opposing ideology, so long as that judge possesed the judicial virtues--intellligence, practical wisdom, and justice (fidelity to law).
    A Hard Case But neorealists have a problem. They believe that judges can and should decide on the basis of instrumentalist nonlegal reasons. Some neorealists believe that formalism is impossible, and hence that judges must decide on the basis of instrumental nonlegal reasons. So for neorealists, political ideology and religious belief inherently come into the picture. (I'm simplifying quite a bit here; perhaps I can clarify this later.) So, if a neorealist Senator is asked to vote on a candidate whose religious beliefs might lead to decisions which the Senator would not like, then the Senator is naturally lead to oppose the candidate on the basis of the candidate's religious beliefs.
    Back to Volokh Eugene's move is to argue that ideology can be distinguished from religion. He illustrates the move with a nonjudicial example--a hypothetical Quaker candidate for Secretary of Defense:
      To illustrate this, let's consider a different but structurally identical scenario. Imagine that a President is deciding whom to choose as Secretary of Defense, and one of the candidates is a Quaker. I think it's wrong for the President to reject the Quaker because he's a Quaker; at the very least, that would indeed be religious discrimination. But say that one of the candidates says "Because I'm a Quaker, I oppose all war under all circumstances," and the President rejects him because of his pacifism, just as the President would have rejected any pacifist of any religion (or of no religion). That is most certainly not religious discrimination -- it's discrimination based on the candidate's ideology, but not based on his religion.
    Does this move work? Yes and no. Lot's of folks (me included) are inclined to think that this move obviously is sound. But let's try to put ourselves in the shoes of a judicial candidate who holds deep religious beliefs that form a comprehensive moral, political, and judicial theory. That is, this candidate's religion does not limit itself to questions of private religious worship and personal ethics. This religion includes views on the whole human life, including a view about how judges ought to decide cases.
    A Hypothetical: The Land of Libs and Cons I think it best not to use contemporary examples--too many hot buttons can be pushed if a hypothetical is framed using the rigid designators for contemporary political parties and religious denominations. So I am making up religions and political parties and giving them antique and fanciful names. Suppose we have a society with the following three religions:
      --Odinism. Odinist theology limits the direct relevance of religion to the sphere of worship and private life. Some Odinists are conservative; some liberal. Some Odinists believe the death penalty is good thing, some that the death penalty is morally wrong.
      --Mithraism. Mithraist theology makes Mithraism directly relevant to the whole of human life, including politics and judging. Mithaists are strict retributivists. They believe that the death penalty is morally required and that judges have a moral obligation to support the death penalty.
      --Jovism. Jovists theology is like Mithraism in that it is comprehensive, but Jovists believe that Jove has commanded that no human being should intentionally take another human life except in self-defense. Jovists believe that the death penalty is morally impermissible, and that no Jovist may impose the death penalty as a judge.

    Let's imagine our society is divided equally between the three religious groups. Suppose that in our hypothetical society, there are two political parties, call them the Libs and the Cons. Libs oppose the death penalty. Cons support it. The two parties split the electorate almost equally. Jovists are the base of the Lib party. Mithraists are the base of the Con party. Suppose the President is a Lib but that the Senatre includes 41 Cons. Suppose that in our hypothetical society, the death penalty is a do or die hot button issue. What might happen? Here are some scenarios:
      Scenario #1: The President nominates mostly Jovists and some Odinists. Con Senators fillibuster all the Jovists and some of the more outspoken Odinists. A few moderate Odinists are confirmed. The judiciary is gradually depopulated as a stalemate emerges.
      Scenario #2: Suppose that after a year or two of Scenario #1, the President begins to use the recess appointment power to nominate only Jovists and extreme anti-death penalty Odinists to the judiciary. He keeps on doing this, and it becomes a divisive issue in the next Presidential election, with voting polarized along religious lines.
      Scenario #3: The President nominates mostly moderate Odinists and a small number of Jovists and outspoken anti-death penalty Odinists. The Con Senators allow confirmation of most nominees, but fillibuster most of the Jovists.
    Would Mithraists and Jovists buy Volokh's argument that there are no religious tests for judicial office? Well, they might buy it as a formal legal matter, but they certainly wouldn't buy it at a deeper level. It is obvious what is going on here. No Mithraist can serve as a judge in any of the three scenarios. In Scenario #1, only Odinists can serve as judges. In Scenario#2, only Jovists have a realistic chance to serve as judges. In Scenario#3, only Odinists have a realistic chance to serve as judges. Here is my point. Volokh's argument is convincing to some groups under some social conditions. If your politics and judicial philosophy are not strongly determined by your religion, then Volokh's argument will seem obvious and benign. If your politics and judicial philosophy are determined by your religion, but social circumstances are such that members of your religion can be nominated and confirmed as judges, then Volokh's argument may seem a bit off kilter but not fundamentally wrong. If your politics are determined by your religion and social circumstances are such that there is a good chance that either the President or the Senater might systematically block you and your coreligionists from judicial office, Volokh's argument will look like a transparent rationalization for religious discrimination. From the point of view of someone whose religious beliefs are comprehensive, it doesn't look like "ideology flows from religious belief," rather it looks like "ideology is religious belief." If you oppose me because of my ideology, you oppose me because of my religion.
    Back to the Actual World We are not quite in the tragic situation that faces the Libs and the Cons. In contemporary America, the connection between religion, politics, and judging is much looser than in my hypothetical world. But Schurmer's attack on Holmes suggests a scenario that is uncomfortable to conservative Catholics. If neorealist Senators believe that almost all conservative Catholics are likely to be a threat to abortion rights, then they might fillibuster all Catholic nominees that had not proclaimed that moderation on abortion. But this move would be terribly devisive. It would enrage an important segment of the Republican base and provide yet more fuel to the already raging fire that has politicized the judicial selection process. Eugene Volokh's argument against Brendan Miniter included an important assumption: "But if it is proper for them to consider the candidate's ideology, then it must be proper regardless of whether the candidate's ideology flows from his religion." But from the point of view of those with comprehensive religious beliefs, Eugene's point translates as: "If it is proper for Senators and Presidents to consider ideology, it is proper for them to inquire into the candidate's religious beliefs." And that would be a deeply controversial practice.
    Where Do I Stand? Good question. I know where I stand as a mater of ideal theory. I believe that we should select judges on the basis of their possession of the judicial virtues--intelligence, practical wisdom, integrity, and justice (the disposition to decide according to law rather than on the basis of personal beliefs, whether they be secular or religious). But what should we do once neorealism has corrupted many judges and the judicial selection process has been politicized. Should I join the fray on behalf of my ideology? This is an enormously difficulty question, but my instinct is to answer in the negative. And in particular, I think it is very important that Presidents and Senators try first to discover whether judicial candidates will allow their ideology to influence their decisions. Only if there is an affirmative answer to this threshold question should the inquiry go further into the candidates political beliefs. And the inquiry should stop there. Candidates should not be queried about their religion, and opposition to a candidate should not be framed in religious terms. Even if Eugene Volokh's diagnosis of the Hughes case is incomplete as a matter of theory, it is sound as the basis for action. Bringing religion into the judicial selection wars will only accelerate the downward spiral of politicization.

New on SSRN Here is the round up of the latest:
    Lynn Baker and Mitchell Berman (Texas) upload Getting off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, forthcoming in the Indiana Law Journal. Here is a taste:
      The spending power remains the notable exception to the Rehnquist Court's federalism revival, its exercise still governed by the extremely generous 1987 decision in South Dakota v. Dole. Consequently, many commentators, writing in this Symposium and elsewhere, have proposed that Congress should respond to the Rehnquist Court's states' rights decisions by using the spending power to circumvent those limitations on congressional power.
      We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking.
      Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched.
    Paul Robinson (Penn) posts Why Does the Criminal Law Care What the Lay Person Thinks Is Just? Coercive versus Normative Crime Control, forthcoming in the Virginia Law Review.
    Sharona Hoffman and Andrew Morriss (Case Western) offer Birth After Death: Perpetuities & The New Reproductive Technologies, forthcoming in the Georgia Law Review.

Tuesday Workshop At the University of Chicago's Olin Series, Henry Hansmann (Yale) presents Legal Entities, Asset Partitioning, and the Evolution of Organizations.

Monday, April 21, 2003
Equity and Efficiency I keep an eye on A Taxing Blog because of their excellent coverage of the distributive justice issues that are that heart of some of the most important debates in tax policy. Here is an example. For some reason, legal theory types in law schools who teach in other areas (not to mention those who work out of philosophy or political science) tend to forget that tax policy is where the action is, where distributive justice is concerned.

Breaking the Downward Spiral Rick Hasen provides a link a very thoughtful article by Jason Mazzone on Findlaw:
    Confirming or rejecting the President’s nomination of an individual to the federal courts is not a political act. The Constitution gives the Senate unique responsibilities in evaluating potential judges because the framers imagined Senators as responsible statesmen who, in performing these duties, could rise above the tussles of ordinary politics. The Senate fails its constitutional obligations when in considering judicial nominees it divides along party lines and treats confirmations as akin to hashing out legislation.
Mazzone proposes a simple solution to the current deadlock:"The Senate should commit to bringing all future candidates to a final vote within a fixed period of time, perhaps sixty days from nomination." And here is Rick's reacton:
    Nice thoughts, but ultimately unconvincing. A decision to move to a 60 day solution now, while Bush is in his first (and perhaps only) term, gives a benefit to the party in power. Nothing like this will be adopted unless it is in the long term interest of both parties. Perhaps such a rule could be adopted to take effect eight years from now. But that raises other problems with Mazzone's suggestions. Who is going to enforce a Senate rule not to confirm a lower court nominee (and why remove from consideration those judges for whom we may have the best information about their judicial abilities and views?)? As for the super-majority requirement, we already have it. If the system works, Bush should start nominating more moderate candidates if the Democrats do not cave in to political pressure.
Here is another passage from Mazzone's piece:
    The problems of the current political free-for-all are abundantly clear: Nominees languish in committee for months or years. Votes on one nominee are conditioned on promises to confirm another nominee or to favor extraneous legislation. Debates erupt over which records are relevant and which questions proper. Speculation abounds about secret plans to promote present candidates to higher and more powerful judgeships. Meanwhile, judicial vacancies imperil the performance of the courts.
Brett Marston (of the very good Marstonalia) has a reaction to Mazzone's claim
    My intuitions are that almost everything that Mazzone criticizes in the above paragraph is a normal -- or at least not catastrophic -- part of the nominations process. I've been reading Henry Abraham's Justices and Presidents over the weekend, and this certainly colors my views. Abraham's book is a strange combination of heroic chronicle of the members of the Supreme Court (he often sums up a discussion of a given Justice by describing how he "served with distinction") and a discussion of the political factors that feed into presidential nominations and Senate rejections or approvals. But there are also deeper disciplinary issues at play here. It's a bit of a cliche, but political scientists are still more willing than legal scholars to look at the work of courts -- and not just the Supreme Court -- as political work, so they are perhaps less shocked at the idea that politics should play an important, perhaps even decisive, part in the judicial nominations process.
I hope to be able to write something on this later. For now, all I can say is bravo Mazzone.

Monday Workshops Here is the roundup:
    At Georgetown's Constitutional Theory Series, Randy Barnett (Boston University) presents Restoring the Lost Constitution: The Presumption of Liberty. Barnett's paper is an excerpt from his important new book of the same title, forthcoming in the Fall from Princeton. Here is a taste from the start of Chapter One:
      The Constitution begins, “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” This was not idle rhetoric. These words were offered to claim legitimacy for the document that followed. The founders’ claim of legitimacy was based not on the divine right of kings, but on the right of “We the People” to govern themselves. They declared that “We the People” had exercised their rights and had manifested their consent to be ruled by the institutions “constituted” by this document. They made this declaration because they believed that the consent of “We the People” was necessary to establish a legitimate government and that, upon ratification, they would have gained this consent. I challenge the idea, sometimes referred to as “popular sovereignty,” that the U.S. Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” I deny that the conditions needed to make this claim valid existed at the time the Constitution was adopted or ever could exist. Though “the People” can surely be bound by their consent, this consent must be real not fictional, unanimous not majoritarian. Anything less than unanimous consent simply cannot bind nonconsenting persons. Moreover, if taken too seriously, the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution’s legitimacy. To understand what constitutional legitimacy requires, we must first consider what it means to assert that a constitution is “binding.”
    Ayelet Shachar (University of Toronto) speaks at NYU today. Title anyone? Anyone? Anyone.

Sunday, April 20, 2003
Rational Discourse and Internet Governance Earlier this year, Michael Froomkin posted Habermas@Discourse.Net: Toward a Critical Theory of Cyberspace on SSRN. It is also available online from Westlaw and at 116 Harvard Law Review 749 (2003). Here are some thoughts about Froomkin's magnificent accomplishment:
    Introduction Habermas@Discourse.Net is formidable. At 124 pages and 558 footnotes--it is truly "a major piece," but there are lots of major pieces. What is really remarkable is that Froomkin is able to keep two enormously complex balls (Habermas's critical theory and Internet governance) in the air simultaneously--and say something important at the same time. If points were awarded for degree of difficulty, surely Froomkin would carry off the prize. But here is the rub, very few readers who can digest the Habermas are able to appreciate Froomkin's fine grained and textured account of Internet governance--and vice versa. My main point in this post is to say: it is worth the effort. Moreover, Froomkin's writing is remarkably accessible. Habermas@Discourse.Net is quite simply a good read. Although, as you might guess, I will have bone to pick here and there with Froomkin's conclusions, my bottom line is: Read it! So here we go . . .
    Habermas Jurgen Habermas is without doubt one of the most important thinkers in the world today. With John Rawls demise earlier this year, it is indisputable that Habermas is the greatest living social theorist and political philosopher. Habermas's theoretical edifice is complex and Habermas's prose is often difficult. In this post, I want to sketch just two or three important ideas that will enable me to comment meaningfully on Froomkin's article. Let's start with the idea of legitimacy.
      The Problem of Legitimacy From the beginning, Habermas's work has focused on the question of legitimacy. Legitimation Crisis is the title of an early book. Legitimacy is a notoriously tricky concept, and to get a handle on Froomkin, we need to get clear about legitimacy. Here are some moves that may help.
        --Distinguish normative legitimacy. A given government or procedure can be percieved as legitimate or accepted as legitimate, on the basis of false beliefs, for example, beliefs sustained by propaganda. The question of normaitve legitimacy is the question whether a government or procedure ought to be accepted as legitimate. Froomkin is concerned with normative legitimacy.
        --Legitimacy is a characteristic of processes. We say that governments, regimes, and procedures are legitimate. The decisions of government and the outcomes of procedures are legitimate in a derivative sense. Froomkin is concerned with the legitimacy of Internet governance institutions such as the IETF and ICANN, and derivatively with the legitimacy of the decisions those institutions make.
        --Theories of legitimate can be classified in many ways, but the following groupings are helpful as a starting point:
          ++Consent theories maintain that a procedure or government is legitimate, because those affected have consented (either explicitly or tacitly).
          ++Reliability theories maintain that a government or procedure is legitimate if and only if it is structured so as reliably produce just or good decisions or outcomes.
          ++Process theories maintain that a government or procedure is legitimate if and only if the processes it employs to make decisions have certain legitimating features, e.g. they are democratic or participative.
      The Discourse Principle as the Basis for Legitimacy Habermas's solution to the problem of legitimacy is rational discourse. Outcomes are legitimate if and only if they are (or could be) justified by a rational discourse. As Froomkin puts it, "procedurally sound discourses allow us to claim that their outputs are legitimate." But here is an important point. Habermas does not think that governments themselves employ the procedures of rational discourse. Who could think that? Governments are bureaucratic organizations, and they make decisions on the basis of systems imperatives. Elected officials must be reelected. Bureaucrats are constrained by formal rules. So how does discourse come into the picture? As Habermas puts it, "Discourses do not govern. They generate a communicative power that cannot take the place of administration but can only influence it. This influence is limited to the procurement and withdrawal of legitimation."
      The Discourse Principle Habermas uses the term "valid" to get at the conditions for legitimacy. He defnes the Discourse Principle as follows: "Just those action norms are valid to which all possibly affected persons could agree in rational discourse." And what is a rational discourse? "[R]ational discourse" should include anyattempt to reach an understanding over problematic validity claims insofar as this takes place under conditions of communication that enable the free processing of topics and contributions, information and reasons . . . The expresion also refers indirectly to bargaining processes insofar as these are regulated by discursively bounded procedures." In particular, a rational discourse must satisfy the following conditions:
        --1. all voices in any way relevant get a hearing, --2. the best arguments available to us given our present state of knowledge are brought to bear, and --3. only the unforced force of the better argument determines the 'yes' and 'no' responses of the participants. --A more complete formulation of the conditions of rational discourse is available in the Legal Theory Annex.
      Habermas, then, has what I call a process theory of legitimacy. Governments or procedures are legitimate to the extent they can be validated by rational discourse and rational discourse is defined procedurally. So, we now have a very sketchy outline of Habermas in view. Of course, to really understand this stuff, you've got to read Habermas himself, but I hope I've at least conveyed the flavor and some of the texture of Habermas's theory. OK, enough theory. Now, back to the Internet . . .
    Internet Governance What on earth does rational discourse have to do with Internet governance? If you've ever been to an ICANN meeting you might be tempted to say: "ICANN meetings are to rational discourse as military music is to musc." Or something like that. And indeed, that is a crude approximation of one of Froomkin's conclusions. (By the way, Froomkin's article does a masterful job of recounting the history of Internet governance. His account is rich, textured, and illuminating.) I can't do justice to even the outline of Froomkin's argument here, but I can at least hit some of the highlights.
      The Internet Engineering Task Force The hero of Froomkin's story about Internet governace is the IETF or Internet Engineering Task Force. Froomkin's article recounts the IETF's early history and a famous episode involving conflict between the relatively participatory and open IETF and the more elite and closed-membership IAB (Internet Architecture Board). Here is one of the most remarkable things about the IETF. Anyone can participate. You just sign up for an email list of a working group. That's it. Froomkin argues that this feature of the IETF corresponds with Habermas's require that for a discourse to be rational, "all voices in any way relevant [must] get a hearing." In Habermas@Discourse.Net, Froomkin marshals the evidence that the IETF does, in fact, live up the rigorous requiresments of a rational discourse. Keeping our eye on the ball, let's remember that the ultimate question is whether the IETF's processes, by living up to Habermas's standards for rational discourse, confer legitimacy on the decisions that the IETF makes. Froomkin says that the answer to this question is "yes."
      Is Froomkin Right? Is the IETF legitimate? Are IETF decisions legitimate because IETF processes are structured by the conditions of rational discourse? In this section, I want to present some worries about Froomkin's conclusion. None of my concerns will come as surprises to Froomkin--all are anticipated in one way or another. Here they are.
        --Gadamerian Worries--the Role of Authority. One of the most famous debates in contemporary continental philosophy was that joined between Habermas and Gadamer over what Gadamer called the enlightenment prejudice against prejudice. Rational discourse is all well and good, but the IETF is concerned with engineering. Just because agreement is reached through a marvelous open participative process doesn't mean that the outcome won't be awful. Froomkin quotes Steve Crocker, "While more people are participating [in the IETF], the number of senior experienced contributors has not risen proportionately. . . . Without guidance, working groups run the serious risk of hav[ing] good consensus about a bad design." Good consensus about engineering does not necessarily result from "the unforced force of the better argument." Human beings are sometimes remarkable in thier ability not to see that the better argument is indeed better. Sometimes good consensus results from deference to authority.
        --Consensus Achieved Through Subtle Exclusion. Froomkin knows that the IETF is hardly the world's most inclusive group--it is overwhelmingly male and conducts its business in English. What about the latter point? Froomkin attempts to defend the dominance of English as follows:
          Dependence on English undoubtedly makes the IETF a less universal debating forum than it would otherwise be. Yet, as Habermas notes with some regularity, discourse is not possible unless the participants are able to communicate. English is surely the least bad tool for this: approximately one and a half billion people, about one quarter of the world’s population, speak English. Although no hard data are available, the importance of English in the sciences and the increasing influence of English as the global business language suggest that, although the reliance on English is regrettable, until a more widely used international language (or superb automated translation software) is available, this reliance is intrinsic to a reliance on discourse.
        But is this defense adequate? The IETF is, for example, responsible for the standard that limited Intenet domains names (such as to the Roman alphabet and Arabic numerals plus the dash "-". The global digital divide was surely exacerabated by the IETF's exclusion from the Domain Name System of the billions of human beings to whom the Roman alphabet are Arabic numerals are unfamiliar gibberish. If you are a native speaker of English or another European language, imagine how difficult domain names would be if the only allowable characters were Chinese ideograms. The requirements of rational discourse are quite stringent--"all voices in any way relevant get a hearing." Of course, Froomkin can point to the progress that IETF has recently adopted as standard for Internationalized Domain Names. But how much sooner might that have been accomplished if the IETF were truly open to all who are affected in significant ways by its decisions. The truth of the matter is that those without technical backgrounds and proficiency in English are effectively locked out of the IETF--even though the IETF makes important decisions that affect them.
        --Off the Agenda: Witetapping. Yet another feature of the IETF that is problematic concerns its decisions to place certain issues off the agenda. This occurred with respect to the question whether the IETF should facilitate wiretapping by promulgating standards that would make the Internet wiretap friendly. In the end, the IETF concluded that it "was the wrong forum" for such activity--RFC 2804. But was this decision truly the product of rational discourse--the unforced force of the better argument, or did it instead reflect the interests and ideologies of IETF participants, with the viewpoints from outside the engineering community getting scant consideration? I plowed through many dozens of postings to the RAVEN discussion list, and my impression (but this is just an impression) is that the discussion was remarkably one sided, with very little participation from those outside the engineering community. (Michael, please correct me if I am wrong about this.) Did "all voices in any way relevant get a hearing" before the IETF decided not to make the Internet wiretap friendly? Were law enforcement officials, criminologists, and law professors active participants in the RAVEN list? My preliminary research suggests that the answers to these questions are "no" and "no." Not that this was necessarily a bad thing . . .
      The Value of Opaque Processes In May of 2003, I gave talks at the law faculties of the University of Auckland and the University of Canterbury in New Zealand, entitled Internet Governance Reform: Opaque Process and Transparent Networks. My argument was the polar opposite of Froomkin's. I argued that Internet governance processes should be opaque, because the Internet should remain transparent. If the IETF had been truly transparent and law enforcement officials had actually joined the process in a meaningful way, would the IETF decided against engineering the Internet to facilitate wiretapping? Who knows? But it isn't hard to see that transparent, open decision making is a risky business. This points folds back to the discusson, above, of the various models of legitimacy. Process models compete with reliability models. Rational discourse sounds good. You can give really terrific abstract arguments for it. But there is no guarantee that rational discourse will produce good outcomes, and in particular contexts, there may be reasons to believe that satisfying Habermas's conditions for rational discourse might just be a recipe for disastrous outcomes. In the context of Internet governance, a transparent decision making process opens the door to powerful groups who may value the ability to control content more than they value the transparency of the Internet. Just as the IETF considered architectural changes that would facilitate wiretapping, there are powerful groups that might very well lobby for architectural changes that would faciliate control of content. Perhaps, we want internet governance institutes that are themselves designed to insure good outcomes rather than rational discourse processes.
      ICANN If the IETF is the hero of Froomkin's story, ICANN (the Internet Corporation for Assigned Names and Numbers) is the villain. ICANN controls the allocation of two important resources--the Domain Name System and Internet Protocol addresses (or numbers). Even in the post-dotcom era, it is not hard to see the economic value of domain names. Verisign makes a lot of money as the registry (wholesaler) and a registrar (retailer) of domain names. Names like and obviously have value. Cybersquatting does economic injury to the owners of valuable trademarks. ICANN acts as a sort of private transnational regulatory body for the domain name system, and its activities directly affect the economic interests of stakeholders--registries, registrars, trademark owners, and others. Froomkin holds ICANN up to the standard of rational discourse and finds it wanting. Here is a partial list of the problems:
        --ICANN incorporated in secret.
        --ICANN holds secret board meetings.
        --Policies were released for public comment only a day or two before board actions.
        --ICANN staff made unilateral decions.
        --ICANN staff denied a board member, Karl Auerbach, access to information.
      There is no question that ICANN's procedures are very different than those of the IETF. ICANN is rhetorically committed to bottom-up, consensus driven policy processes, but the reality falls far short of the rhetoric. Here is the lesson that Froomkin draws:
        ICANN also serves as a reminder of the special value of the IETF as a model of procedural consensus, if not necessarily as a rigid template. ICANN’s chief failures have been in institutional design. It is particularly striking how little ICANN, unlike the IETF, uses the Internet as a tool for making decisions. Of course, just because something relates to or uses the Internet does not tell us much about its ability to generate legitimacy. ICANN’s decisions are made at quarterly Board meetings held on four different continents. Decisions of the Board and of many of the ICANN-supporting organizations occur at the physical meetings. Very few members of the Board, and even fewer of the staff, participate either in the public online fora hosted by ICANN or in the unofficial ICANN fora. In contrast, the IETF recognizes that participants cannot attend its equally far-flung meetings, and subjects everything discussed in person to ratification in an online discussion. In this, at least, ICANN’s failures were not inevitable.
      An Alternative Diagnosis In a nutshell, Froomkin argues that ICANN fails because it isn't like the IETF. It isn't open enough or participative enough or democratic enough--and as a result ICANN failed to live up to its bottom-up, consensus ideal. ICANN's suffers from a rational discourse deficit. Or does it? Pace Froomkin, I would like to convince you that ICANN's problems have an entirely different source. If ICANN were more like the IETF, it would be worse, not better. I will follow Froomkin's lead and use Habermas's social theory as the vehicle to tell my version of the story. Here goes:
        --Lifeworld and System. In his magnum opus, The Theory of Communicative Action, Habermas distinguished between the lifeworld--the realm of informal interaction structured by consensus and traditional values--and the system--those areas of social life that governed by instrumental rationality, especially the market and formal bureaucratic rule systems. Both the system and the lifeworld give rise to problems of legitimacy. Because the lifeworld is consensually ordered by traditonal norms, it can give rise to oppression and false consciousness. Because the system operates through the unintended consequences of the instrumentally rational actions of many individuals acting in the context of markets and bureaucracies, it can result in outcomes that could not be the object of any kind of consensus. One might say that the whole point of Habermas's life work is to open a space for rational consensus--agreement structured by the unforced force of the better argument, rather than blind adherence to tradition or the blind operation of the market or bureaucratic rules. But and this is a big but . . . But Habermas is not saying that all of society should operate on the basis of rational discursive processes. In English more plain, Habermas doesn't think that we need to agree on everything to get along with the business of everyday life. That would be a recipe for disaster. Families and friends need traditonal norms to structure their interactions. Economies need markets for efficient resource allocation.
        --And What About ICANN? So what was ICANN's problem? Fundamentally, ICANN is doing something different than the IETF. The IETF creates standards. If it does its job well, everybody wins. If it doesn't do its job and no standards are created, everybody loses. In the IETF's sphere of authority, there are powerful incentives for cooperation. Moreover, the network engineers who participate in IETF processes share a common set of assumptions and values. They share the very young but nonetheless powerful norms of the network engineering community--the end to end principle is an example. The nature of ICANN's task is quite different. ICANN is a resource allocation agency. ICANN doesn't set standards. ICANN distributes goodies--access to the root of the Domain Name System and IP Addresses. The stakeholders in ICANN's processes are mostly economic actors whose motives are structured by the market. The registrars, registries, trademark owners, and other entrenched stakeholders are mostly profit maximizing firms. In Habermasian terms, their behavior is governed by systems impeartives. Or to put the point more crudely, ICANN stakeholders want to make a buck.
        --The Trouble with Bottom-Up, Consensus Driven Decision Making. So what happens when you take a bunch of profit-maximizing firms and ask them to participate in a rational discourse? The answer is obvious. One of the basic assumptions of rational discourse is simply absent. Stakeholders who participate in the ICANN process are not motivated by the search for truth. The representatives of ATT and Verisign cannot be moved by the unforced force of the better argument. They have a fiduciary duty to their employers. They are moved by the systems imperative of profit maximization. The representatives of entrenched stakeholders who participate in the ICANN process will object when consensus is sought on a proposal that undermines their important economic interests. For example, the interests of some entrenched stakeholders in the ICANN process would be injured by opening the root to the creation of new generic Top Level Domains (gTLDs)--new dotcoms. So don't expect a "rational consensus" in favor of serious root expansion to emerge from ICANN's bottom-up, consensus driven process. This does not mean that the stakeholders cannot bargain from enlightened self interest. Participants in the ICANN process know that sometimes you win and sometimes you lose. They understand that sometimes you must give a little to get a little. They get, "You scratch my back and I'll scratch yours." They realize that in some cases they must act in the public interest in order to preserve ICANN as an institution, for fear that something more inimicable to their interests might replace ICANN. And so, sometimes they will engage in what looks like "rational discourse." And when their own interests are not on the table, they may even engage in what truly is "rational discourse." But these qualifications do not alter the fundamental fact: ICANN's fundamental task cannot be accomplished through rational discourse. That is pie in the sky.
        --But What is the Alternative? And Habermas is very helpful at precisely this point. This is where we need to listen very carefully to Habermas--because he got it exactly right. Habermas's theory doesn't demand that every decision be made through a process built on the model of rational discourse. Remember what Habermas said: "Discourses do not govern. They generate a communicative power that cannot take the place of administration but can only influence it. This influence is limited to the procurement and withdrawal of legitimation." Oh, and by the way, more democarcy or more openness won't cure this problem. ICANN will never be able to conduct its day to day decision making process in the public interest. The public interest in names and numbers is simply too diffuse. Individual Internet users and domain name registrants face an intractable collective action problem when it comes to participation in ICANN. It isn't worth our while to participate--our individual stake is only a few pennies or a few dollars. But ICANN doesn't need to make decisions through a process of rational discourse. Because ICANN is in the resource allocation business, it can serve the public interest simply by selling the resources it controls. Once names and numbers are tradeable, the market can do the rest--this is the essential insight of the Nobel Prize winning economist Ronald Coase.
        --But Froomkin Is Essentially Right I've just spent some time quibbling with Froomkin, but we should not lose sight of the fact that Froomkin is essentially right. I don't agree with Froomkin that ICANN's processes are flawed because they do not themselves model a rational discourse. Because of ICANN's tasks, systems imperatives will drive its decisionmaking. But Froomkin is right that many of ICANN's decisions cannot be legitimated by a rational discourse outside of ICANN. There is a subtle and important irony here. ICANN's failures are caused by ICANN's attempts to emulate the IETF. The rational discourse model does not work for the allocation of scarce resources when the participants in the discourse are profit-maximizing firms. That dog won't hunt. ICANN took on the trappings of the IETF--bottom up, consensus driven decisionmaking. These trappings give profit-maximizing firms the opportunities to engage in strategic action. They can block consensus and clog the channels of discourse. The real hope for ICANN is not more process. Let me repeat that. The real hope for ICANN is not more process. The real hope for ICANN is less process. The real hope for ICANN is more markets. And the more that ICANN relies on bottom up, consensus driven decision making, the less likely it is that ICANN will move toward market driven solutions to the resource allocation problems it faces.
      Conclusion Habermas@Discourse.Net is important. It asks the right questions. It does not compromise. It takes the bottom up, consensus model of Internet governance and measures it against the deepest and most fully developed theoretical model of rational discourse. Froomkin's article is hugely ambitious and it delivers on its promises. Reading Froomkin's article has changed the way I think about Internet governance. Read it!

The Latest Theory Is That Theory Doesn't Matter That is the title of a story from the New York Times yesterday. Here is the gist:
    When John Comaroff, a professor of anthropology and sociology at Chicago who was serving as the event's moderator, turned the floor over to the panelists, for several moments no one said a word. Then a student in the audience spoke up. What good is criticism and theory, he asked, if "we concede in fact how much more important the actions of Noam Chomsky are in the world than all the writings of critical theorists combined?" After all, he said, Mr. Fish had recently published an essay in Critical Inquiry arguing that philosophy didn't matter at all. Behind a table at the front of the room, Mr. Fish shook his head. "I think I'll let someone else answer the question," he said. So Sander L. Gilman, a professor of liberal arts and sciences at the University of Illinois at Chicago, replied instead. "I would make the argument that most criticism — and I would include Noam Chomsky in this — is a poison pill," he said. "I think one must be careful in assuming that intellectuals have some kind of insight. In fact, if the track record of intellectuals is any indication, not only have intellectuals been wrong almost all of the time, but they have been wrong in corrosive and destructive ways."
Whoo hoo! This means I can go to sleep!

New on SSRN Robert Post (Berkeley) uploads Law and Cultural Conflict. Here is the abstract:
    The relationship between law and cultural conflict is a subject that is relevant to numerous contemporary disagreements about the substance of rights. The article does not attempt to intervene into these disagreements, but instead to construct a common framework of analysis that might facilitate constructive dialogue among those who would otherwise disagree. The framework offers three dimensions in which the relationship of law to cultural conflict might be assessed.
    The first dimension concerns the sociological relationship between law and culture. The simplest model of this relationship, which the article calls the "Devlin model," assumes that law is the expression of a coherent antecedent culture that is the ultimate source of society's identity and authority. This view of law underlies many contemporary formulations of constitutional and common law, as well as various claims to national self-determination and multiculturalism. The Devlin model is radically oversimplified, however, because it undertheorizes both law and culture. It fails to recognize the many ways in which law can not only enforce an antecedent culture, but also constitute that culture, as well as displace it in the name of instrumental rationality. The Devlin model also fails to recognize that a society's culture is typically neither stable, coherent nor singular. The article offers a typology of the various relationships that law can assume with cultural contestation and heterogeneity.
    The second dimension concerns the form of legal intervention. Different forms of interventions place the law in different relationships with cultural conflict. Legislation differs from adjudication; criminal law differs from administration regulation. The article uses the case of Romer v. Evans to explore how the fact of cultural conflict can affect the creation of judicially created constitutional rights. The dialectic between cultural conflict and judicially-enforced constitutional rights should primarily be understood as a matter addressed by the substantive jurisprudence of constitutional law.
    The third dimension concerns the nature of legal rights. Some rights, like those protected by the First Amendment, promote cultural diversity in ways that other rights, like those protected by the Equal Protection Clause do not. The first kind of rights are hospitable to cultural conflict; the second are not. The distinction turns on the difference between rights that understand cultural values as instantiated by particular forms of social relationships, and rights that understand the prevention of state regulation as a necessary but not sufficient condition for the realization of cultural values. The article parses the various factors that are relevant for determining which kinds of rights the law ought to implement.

Saturday, April 19, 2003
Political Philosophy versus Political Theory and a Comment about the Legal Academy
    Introduction Anyone who has been to both the APSA and the APA knows that the political theorists who dwell at the former and the political philosophers who inhabit the latter, are frequently (but far from always) inhabiting parallel universes. Jacob Levy's wonderful post on this subject has prompted a variety of reactions, and it has prompted me to think a bit about the relationship of both disciplines with legal theory and legal philosophy--a topic raised by Nate Oman (see list of links below).
    Who Trains Legal Academics? Political theorists are mostly trained in political science (or politics or government) departments; political philosophers are are almost always trained in philosophy departments. Where are legal theorists trained? Just two decades ago, the answer was almost always "in law schools," but this has begun to change substantially over the course of the past two decades. Increasingly, law schools are hiring entry level candidates who have a JD plus a PhD in one of several disciplines, such as economics, political science, history, philosophy, or sociology. But the majority of new law professors do not have a PhD. At some elite institutions, most new entry-level hires are JD-PhDs.
    What Do Legal Academics Know? It used to be the case that legal academics knew the law. They knew a lot about cases, statutes, constitutions, regulations, and a secondary literature about those things. A truly accomplished legal academic might read dozens of cases every week, hundreds or thousands of cases in a year. Nowadays, legal academics tend to know more about other disciplines and less about the content of the law. Indeed, many law professors only read the cases that appear in the casebooks from which they teach, plus an occaisional blockbuster case in thier field. Of course, some law professors still write treatises (I've written two myself), and, this dying breed must, of necessity, continue to slog through cases by the hundreds. But increasingly the treatise writers are older members of prestigious faculties or younger members of faculties at second and third tier instituttions. There are exceptions to the delegalization of the legal academy. Some fields continue to be more caselaw focused. Constitutional law is highly theoretical and interdisciplinary, but Supreme Court cases still get read. Tax seems involve a closer relationship between the academic and practitioner communities than some other fields. But increasingly, it is the case, the legal academics don't know much law.
    What Constitutes Good Legal Scholarship? What does it mean to write a really great law review article? For decades, the paradigm was clear. Law professors aspired to write Brandeis and Warren's The Right to Privacy or Charles Reich's The New Property. The recipe for a truly great law review article began with a nice bunch of cases, added a dash of policy and a smidgen of theory, mixed well. The end product was a more scholarly version of a brief. Ultimate success was measured by the article's ability to move the courts in the right direction. At the end of this period, there was a holy grail. Law professors everywhere aspired to write the law review article that would convince the Supreme Court to declare that there is a constitutional right to welfare or a guaranteed annual income. The last gasp of the old paradigm was Catherine MacKinnon's work that was instrumental in establishing sexual harassment as the basis for a sex discrimination claim. But nowadays, the paradigm is murky. Truly great law review articles have titles like The Tragedy of the Anticommons. They are mostly addressed to other law professors, and if they seek real world impact, their intended audience is just as likely to be a legislature or even the constitution makers in a new democracy as it is to be a domestic court. Given the interdisciplinary heterodoxy that reigns in the legal academy, there simply isn't agreement on standards for excellence. Behind closed doors, faculty members from one theoretical orientations are likely to tell you that all the work done by scholars with a different orienation is dreck or worse. Nonetheless, there is a consensus of sort. A truly great piece of legal scholarship is one that changes the way we think about the law.
    Where Do We Go From Here? Heck if I know. But here are some gut feelings. First, heterdoxy is a good thing, not a bad thing. Legal theory draws on a variety of other disciplines, because the law deals with the whole of human life. Economics, philosophy, political science, sociology, and history--are all relevant. Second, a period of ferment and experimentation is to be expected. There was a time in the 1990s when the legal academy went through what might be called its "Theory of the Month Club" phase. CLS, feminist jurisprudence, critical race theory, Habermas, Gadamer, Foucault, Derrida--the ideas raced through the legal academy at breakneck speed, flared with a brilliant light and faded just as quickly. Why should we expect that a transition from a legal academy dominated by narrow doctrinalism to a legal academy that embraces interdisciplinarity would be easy? On the contrary, we should have expected what we got. A messy and sometimes embarassing series of lurches, as individuals and institutions began, sometimes enthusiastically, sometimes grudgingly to retool, rethink, rework, and reinvent what it means to be a legal scholar.
    And Back to Political Philosophy versus Political Theory Political philosophers and political theorists--although they dwell in different departments and attend different conferences--have much more in common that do the faculty members of many American law schools. Most political theorists and political philosophers can have an intelligent conversation about an important historical figure such as Hobbes or modern superstar such as Rawls. They may talk past one another, but there is a good chance that they will issues about which they can disagree (or maybe even agree). In the legal academy, even this much cannot be taken for granted. What can a economic PhD corporations scholar say to a philosophy PhD torts scholar? Both subfield and training are different, and although both may attend the same annual meeting of the AALS, they won't hang with the same crowds. (Well, yes, they both can talk about the cases studied in the first year of law school.) Could things be different? Tom Runnacles's contribution to the commentary on Jacob Levy's post focused on the role that that the Philosophy, Politics, and Economics undergraduate degree at Oxford has had in providing some common ground for political theory and political philosophy in the United Kingdom. Imagine what the legal academy would be like if legal academics all had something similar before attending law school.
    A Selective Guide to the Posts Levy's original post sparked several comments. Here are just a few:

Friday, April 18, 2003
Raz at Texas Joseph Raz continues his visit to the University of Texas Law and Philosophy Program as an Anderson Fellow in Residence.

Gardner at Penn At the University of Pennsylvania’s law and philosophy series, John Gardner (Oxford) is on the schedule for today. His paper is Backwards and Forwards with Tort Law. Here are some reflections on his paper:
    Introduction Gardner's paper is fascinating. It moves through a variety of conceptual arguments about the nature of tort theory, focusing on Jules Coleman's critique of the economic analysis of tort law. Gardner's paper is full of wonderful moves, but it defies easy summary. In this post, I think the best thing to do is to quote a little bit of Coleman and a smidgen of Gardner--so that you get at least the flavor of Gardner's argument. So here goes.
    Coleman's Two Arguments As I say, the heart of Gardner's piece is a critique of two arguments made by Jules Coleman. Here is how Gardner lays out Coleman's arguments:
      In The Practice of Principle Jules Coleman sketches two important and closely-related type (b) objections to the economic analysis of tort law. Both challenge the ability of the economic analyst to accord primary obligations – never mind which particular primary obligations - their proper place relative to secondary obligations in the argumentative logic of tort law. Here are Coleman’s most trenchant renditions of the two objections:
        [First objection:] These [economic] accounts do not use efficiency to discover an independent class of duties that are analytically prior to our liability practices. In the standard economic analysis, there is no boundary, as it were, between what the duties are and what the liability practices should be. What counts as a ‘duty’ or a ‘wrong’ in a standard economic account depends on an assessment of what the consequences are of imposing liability in a given case. Duty and wrong, as independent categories, are doing no work in the story. So while in principle we could have an efficiency theory of duties, what economists offer is not an efficiency theory of duties at all, but an efficiency theory of liability or cost allocation.
        [Second objection:] How then does the economist account for the fact that in the typical tort suit the victim sues the injurer and not the alleged cheapest cost avoider? How does one square the forwardlooking goal of tort law (on the economic model) with the backwardlooking structure of tort law? The economist cannot appeal to the obvious answer that the victim believes the injurer harmed him wrongfully and in doing so incurred a duty to make good the victim’s losses. In the economist’s account, the victim sues the injurer because the cost of searching for those in the best position to reduce the costs of future accidents is too high.
    The Logic of Economic Justifications of Tort Law After laying out the arguments, Gardner moves step by step through a variety of interpretations. Here is one step along the way. At this point, Garnder is interpreting Coleman's First Argument:
      Coleman['s] [first] object[ion goes], rather, to something in the logic of policy arguments. On the simplest interpretation of what he is saying, his charge is one of vicious circularity. In the law of torts, as I mentioned earlier, the primary obligation has justificatory priority. Its existence and breach have to be relied upon in arguing that a secondary obligation has been incurred, and hence in making a case that the right-holder is entitled to the crystallising and enforcing assistance of the court. But when policy arguments are being employed, the secondary obligation, with its attendant liabilities, seems instead to assume justificatory priority over the primary. One needs to furnish arguments for the incurring of a secondary obligation, with its attendant liabilities, in order to establish that what the defendant did should indeed be counted as a breach of a primary obligation. Can the latter order of argumentation be squared with the former? For Coleman, on the simplest interpretation, the answer is no. There is a vicious circle in treating primary obligations as justified by the very thing that primary obligations also serve to justify.
    Where Gardner Is Heading In the end, Gardner is not convinced by either of Coleman's two arguments. Here is a passage from the end of the essay:
      I hope I have made it tolerably clear that, in my view, there can be no successful type (b) objection to the economic analysis of tort law. Coleman’s attempts to make good such objections are the best we have, but still, as we have seen, they fail. That is because legal economists can in principle account for any defensible norm. To show that their explanation fails one is always reduced in the end to arguing that they got their costings wrong, i.e. to offering rival economic arguments. If one wants to defeat the economic analysts of tort law in a less pyrrhic way, one really has no alternative but to mount a type (a) objection to their work. One must argue that the economic analysis rests on a corrupt theory of value. This one does by exploring what really matters in life, for what really matters in life is also, by and large, what really matters in law. In the process of exploring this one learns that whatever success the economic analysis of law enjoys in explaining the norms of the law of torts is mainly as follower, not as leader: what really matters in tort law is mainly tracked, not constituted, by whatever economic goods tort law may yield (and even that, I hasten to add, only very incompletely).
    A Comment I very much liked Gardner's essay. I think it is an absolute must if you are interested in either economic analysis of law or tort theory. I have only given a hint of the moves that Gardner makes in response to Coleman. You really must read the essay itself to follow the elegant train of Gardner's thought. But there is a larger issue here that deserves comment. One way to do legal theory is the following:
      Step One: Identify a normative issue in some substantive area of legal theory.
      Step Two: Find some conceptual assumption that is made in the arguments advanced in favor of a normative position.
      Step Three: Escalate the conceptual issue to an abstract level--where philosophical techniques can be brought to bear.
      Step Four: Demolish the conceptual assumption at the abstract level.
      Step Five: Claim that the underlying normative position is therefore untenable.
    There is nothing wrong with a debate of this sort between evenly matched opponents, but there is something rather bothersome about this style of argument when the controversy is joined between one party equipped with a sophisticated philosophical toolbox and another party equipped with a toolbox that contains an array of pliers and screwdrivers for normative analysis but lacks a metaethics wrench or an epistemology hammer. That kind of debate is rarely productive or illuminating--because there will be no clash. One of the very nice things about Gardner's essay is that it suggests that the debate about economic analysis of tort law should ultimately be located in the space of normative reasons. To change metaphors in the middle of a paragraph, conceptual victories are easily won at the tactical level when only one side is armed, but such victories rarely gain strategic traction. The most important battles in legal theory are fought on the field of normative argument. On that field, conceptual siege engines may play a supporting role, but in the end they can only clear the way for the cavalry of right and the infantry of virtue.

New on SSRN Here is the roundup:

Thursday, April 17, 2003
A Tournament for Judges. Mad? Brilliant? Clever?
    Introduction Should Justices of the United States Supreme Court be selected through a tournament among Court of Appeals’ judges—with rankings based on factors like the number of opinions written, the number of citations to those opinions, and so forth? What are you, nuts? The general philosophy of Legal Theory Blog is to be nice. I am a great believer in the value of listening (or reading sympathetically). So I did not include the Mad? in the title to this post lightly. Stephen Choi and Mitu Gulati’s essay, A Tournament for Judges, went up on SSRN yesterday—it is forthcoming in the California Law Review (January 2004). Here is a quote from early in the paper:
      Subjecting elite federal judges to competition in a tournament may strike some as improper, and at the least, uncouth. We hope to persuade the reader that, crazy as it sounds, the idea is worth consideration; that the benefits from introducing more (and objective) competition among judges are potentially significant and the likely damage to judicial independence negligible.
    So, I started reading, with disbelief suspended and mind wide open. Here is what I found . . .
    Assumptions So let’s begin with some assumptions made by Choi and Gulati:
      --Judicial selection is politicized. Or as they put it, “Politics (and ideology) surely has a role to play in the selection of justices. However, the present level of partisan bickering has resulted in delays in judicial appointments as well as undermined the public’s confidence in the objectivity of justices selected through such a partisan process. More significantly, much of the politicking is not transparent, often obscured with statements on a particular candidate’s “merit”—casting a taint on all those who make their way through the judicial nomination process.”
      --Only judges on the United States Courts of Appeal are eligible to become Supreme Court Justices. Choi and Gulati: “The norm today appears to be that a candidate for the Court has to first do a stint on a circuit court. We take this norm as the starting point for the tournament of judges.” This assumption is obviously problematic, but let’s give it to Choi and Gulati to get the discussion going.
    The Proposal The core idea is to rank circuit judges on the basis of objective measures. The judges that score the highest would be selected for positions on the United States Supreme Court. Here are the objective measures they propose:
      --Citations by lower courts, academics, and the Supreme Court. Choi and Gulati explain:
        The point is that there is a market test available for assessing the quality of opinions—we can look at the numbers on how the opinions of different judges are used by a variety of consumers (including, for example, citation counts). Circuit court judges write lots of opinions and the market test allows us to rank them in terms of the quality of those opinions.
      --Productivity, including the number of majority and dissenting opinions written and the number of cases in which the judge participated.
      --Judicial independence. Not an easy thing to measure, but Choi and Gulati have a proposal:
        For each circuit court judge, for example, the frequency with which the judge is in opposition to another judge selected by the same President (or a President from the same political party) serves as one measure of the willingness of a judge to take an independent approach.22 Judges who systematically are more willing to take opposite position to politically like-minded judges are, we speculate, more unbiased in their approach to individual cases.
      --Scores on the above measures would be combined into a single weighted score.
    Choi and Gulati are not proposing a constitutional amendment. Instead, their proposal is to publicize the results of the tournament. They then propose that the President and members of the Senate conduct their discourse about nominations in a particular manner—relying only on the tournament results as a basis for merits-based justifications and then transparently discussing political ideology. Here is a key quote:
      The danger exists that in putting forth an alternative candidate, politicians may simply make the argument that “merit” in fact motivates their decision. As part of our proposal, therefore, we also recommend that the President and the Senate not have the ability to put forth a merit-related rationale outside of our objective factors. Any objections (or move to introduce an alternative candidate) must therefore explicitly rely on non-merit related factors, thus preventing the possibility of pretextual rationales designed to disguise more politically motivated appointments.
    Finally, in the conclusion they acknowledge that political actors would be unlikely to establish the tournament voluntarily. Instead, they suggest that this step might be taken by the press simply reporting the objective information. Optimistically, they imagine that once objective ratings were introduced, it might lead to the establishment of a tournament in fact if not in law.
    The Case for Tournaments Gulati and Choi claim the following arguments in favor of the tournament of judges:
      --Transparency. A tournament will make the criteria for judicial selection transparent. Senators and Presidents will not be able to hide ideology based criteria behind a merits façade.
      --Performance Incentives. A tournament of judges will give Court of Appeals judges incentives to work harder and write better opinions, both to win the tournament and to gain prestiges vis a vis their colleagues.
      --Better Supreme Court Justices. A tournament will result in pressures on Presidents to select the best Court of Appeals judges, and as a result, the quality of the Supreme Court will improve.
    Unintended Consequences Choi and Gulati discuss a number of possible objections to their proposal, including, for example, the possibility that the proposal would disfavor women and minority candidates for the Supreme Court. I want to focus instead on some possible unintended consequences of their proposal. In particular, I shall assume that the judicial selection tournament will be viewed by both participants and third parties as a game, with payoffs determined by the selection of Supreme Court Justices. Judges who are selected would recieve a large positive payoff, but other players (Presidents, Senators, Judges, Academics, Law Clerks) would also recieve payoffs--if judges whose ideology they shared became Supreme Court Justices. How might the game be played?
      --Productivity. Choi and Gulati propose that we measure the number of opinions and dissents as well as the number of cases in which judges participate. How could this measure be gamed? Tournament leaders will wish to maximize the number of opinions and dissents. If not assigned an opinion, a judge will have a strong incentive to dissent. If two politically aligned judges sit on the same panel and one of the two is a tournament leader while the other is not, there will be a strong incentive to hand the opinion to the leader. Circuits determine their own procedures for case assignments. A Circuit with a tournament leader who is politically aligned with the Chief Judge and the majority of judges on the Circuit will have a strong incentive to provide more opinion writing opportunities to the leader. This will advantage judges in friendly circuits and disadvantage judges in unfriendly circuits. In the long run, however, there are only so many ways to game productivity. Presumably an equilibrium will be reached among the judges who are tournament leaders—with each scoring in approximately the same range on this measure.
      --Frequency of Citation. The opportunities for gaming this measure are obvious. Academics will now have an incentive to cite their favorites to influence tournament results. Likewise with both lower court and Supreme Court justices. A set of second-order tactics will be likely to emerge. The composition of law school faculties can be influenced by state legislatures and by the wealthy alumni of private universities. The lower federal court benches are selected by the President and the Senate. Moreover, judges themselves can change their opinion writing so as to maximize the opportunities for both citing other judges (allies in the tournament) and for being cited. Opinions will become longer and long string-cites will become the rule. Basic and uncontroversial issues will be discussed in depth. When faced with a choice between writing an opinion on an issue where there is no law—because the issue arises infrequently—and an issue on which there is lots of law—because the issue comes up all the time—the rational tournament participant will avoid the former and seek the latter. And I am just warming up, there will be endless opportunities for gaming the citation count measure.
      --Judicial Independence. Choi and Gulati propose that we measure independence by voting records. Judges would score points for voting against a judge appointed by a President of the same party as appointed that judge. There are several ways to game this measure. Most obviously, dissent when a same party judge is in the majority and the decision would otherwise be unanimous—Oh, and by the way, write a long citable dissent that rehearses all of the basic law surrounding the case and cites all your allies in the tournament. Of course, there will be cases in which you cannot decide contrary to party affiliation without changing the outcome. But if you are a tournament leader and the case is not on a hot-button issue about which you care deeply, it may well be in your interest to score some independence points by deciding the case in a way you believe is wrong—writing a long opinion, of course!
      --Gaming Clerk Selection. Getting really good clerks is going to be very important. If you want to be a tournament leader, you will need to write a lot of very long opinions and dissents. Moreover, you need high quality opinions, because they are more likely to be cited by other judges. So you want the best clerks. Supreme Court Justices can influence who gets the best clerks by informally signalling that some judges are “feeder judges.” Clerks will want those clerkships, because they will lead to prestigious Supreme Court clerkships, which in turn will lead to prestigious academic positions, creating the opportunity to influence both citations and future clerks. The advantage added by the very best clerks is likely to be substantial, and may well be decisive, given that citation frequency is the one measure among the three where an equilibrium ceiling is unlikely to be established by the players. With great clerks and a stable of externs and some high quality politicking, it might be possible for a judge to garner many thousands of citations.
    The Cost of Tournaments Recall that Choi and Gulati would forbid mention of any merits-based criteria for judicial selection other than the tournament results. When it comes time to select Supreme Court Justices, the tournament results will be the only information that Presidents and Senators may use to justify their decision—other than political ideology. Assume that the tournament does, in fact, determine who is appointed to the Supreme Court. (It might simply come crashing down!) What are the costs? Consider the following:
      --Damage to the Rule of Law. Notice that Gulati and Choi do not suggest that we evaluate judges qualitatively. The tournament requires objective measures, and one thing that is very difficult to measure objectively is whether a judge has decided in accord with the law—rather than on the basis of either ideology or to gain an advantage in the tournament. The virtue of justice not rewarded in the tournament; moreover, too high a regard for justice is likely to be punished. Judges who vote based on the merits, will lose opportunities to write opinions and dissents. Judges who agonize about getting it right will be diverting precious time from the opportunity to score points by getting it long, i.e. producing lots of long and citable opinions.
      --The Exclusion of Soft Variables. One of the most important judicial virtues is judicial wisdom or what the ancient Greeks called phronesis. No points are awarded to judges who have common sense, the ability to size up a situation and penetrate to the issues that are truly important. Indeed, the judges who possess this virtue are likely to be rather poor performers in the tournament of judges. They are likely to perceive that scoring points at the expense of doing justice is a rather poor excuse for judging. They are likely to lag behind their more canny and competitive colleagues.
      --Decreased Transparency. Gulati and Choi claim transparency as an advantage for the tournament of judges, but in all likelihood the opposite is likely to be the result of their proposal. The tournament is likely to create an illusion of objectivity. Behind the scenes, however, there would be manipulation of opinion counts, citation counts, and independent decision counts. This will especially be true if one party were to control the Presidency, the Senate, the Supreme Court, and a majority of Court of Appeals slots at the beginning of the tournament. That party would have enormous strategic advantages in gaming the tournament, but the political nature of the selection process would effectively be masked by the apparently neutral and objective basis that the tournament results would provide for the selection of Supreme Court Justices.
      --A Crisis. Indeed, the end result of Choi and Gulati’s proposal would be so awful that one cannot imagine the story ending except in some kind of crisis. You may not like the current Supreme Court, but imagine a court populated by judges who had won Choi and Gulati’s tournament. These judges would be without the virtues of integrity, wisdom, or justice. They would have been selected for the ability to manipulate the tournament results. In order to do this, the winning judges would be those who are willing to elevate self interest over the interests of the public and the parties who appear before them. And these clever but vicious judges would be entrusted with the ultimate constitutional authority.
    Mad or Brilliant or Clever What are we to think of Choi and Gulati? If they seriously propose a tournament of judges in order to improve the quality of judging, they are mad. If they propose a tournament of judges as a strategic ploy to manipulate and mask the politicization of the selection of Supreme Court judges, they are brilliant. If they are playing a very elaborate joke on legal academia, they are very, very clever. I promise you that you won’t regret downloading and reading this, the most entertaining essay to appear this year.

More from John Eden on Rawls, Cohen, and the Difference Principle John Eden has more to say about the ongoing debate sparked by Gerald Cohen's critique of John Rawls's claim that the two principles should be limited to the basic structure. Here is John's Post (in the new Legal Theory Annex). And here is a taste:
    What often goes unnoticed, unfortunately, about Cohen’s strategy is that it depends upon (initially) plausible psychological assumptions about an agent’s inability to apply radically different sets of moral norms to divergent circumstances. Now, I tend to think that as a matter of moral psychology, it would be very odd if folks behind the veil adopted the two principles of justice which Rawls favors and yet decided, once freed of the constraints of the original position, to endorse and adopt patterns of conduct corrosive of political liberty and economic prosperity for the least advantaged group(s). We must, in other words, countenance the plausibility of Cohen’s strategy, regardless of whether we’re ultimately comfortable with it. But there are two wrinkles. First, human beings are capable, at least to some extent, of applying different sets of moral norms to particularized contexts. Judges respect their role-responsibilities all the time, even in cases where doing so requires a painful forfeiture, if only temporary, of their cherished moral convictions. Thus, save an argument to the effect that there is something distinctive about internalizing justice, Cohen’s complaints need further development. As stated, they are simply not convincing.

Raz at Texas Joseph Raz's visit to Texas continues today.

Workshop Today Bruce Kobayashi does an internal workshop at George Mason titled Copyrighting Lawsuits.

New on SSRN Lot's of interesting papers today:
    Jonathan Zittrain (Harvard) uploads Be Careful What You Ask For: Reconciling a Global Internet and Local Law. I''m almost done reading Zittrain's latest & will post later. Meanwhile, from the abstract:
      As the Internet becomes part of daily living rather than a place to visit, its rough edges are smoothed and its extremes tamed by sovereigns wanting to protect consumers, prevent network resource abuse, and eliminate speech deemed harmful. The tools are now within reach to permit sovereigns with competing rulesets to play down their differences - whether by countenancing global privatization of some Internet governance issues through organizations like ICANN, coming to new international agreements on substance and procedure to reduce the friction caused by transborder data flows, or by a "live and let live" set of localization technologies to shape the Internet to suit the respective societies it touches. These shifts will help ease the tension between the certitudes that the Internet is global, while the imposition of regulation is almost always local. Such cures for the longstanding dilemmas of Internet jurisdiction and governance eliminate the originally cherished aspects of a global Internet as well - urging us to consider the iatrogenic effects of bulldozing online activity to conform more to the boundaries of the physical world that preceded it, and explaining why, in the United States and elsewhere, there are contradictory policies emerging about the Internet's future.
    Catherine Valcke (Toronto) posts Comparative Law as Comparative Jurisprudence - The Comparability of Legal Systems. From the abstract:
      In response to the "malaise" which has afflicted comparative law over the last few decades, William Ewald has proposed that we recast comparative law as comparative jurisprudence, that is, as "the comparative study of the intellectual conceptions that underlie the principal institutions of one or more foreign legal systems." However, Ewald stops short of defining "legal systems." Nor does he explain how such legal systems might be amenable to the kind of comparisons he suggests. This paper takes up these issues. Specifically, it argues that law as jurisprudence, the conception of law which underlies Ewald's proposal, unlike naturalist and positivist conceptions of law, entails a conception of the legal system as inherently comparable. The minimal conditions for comparability are simultaneous plurality and unity. A conception of the legal system as comparable hence is a conception that is sufficiently broad to accommodate a plurality of legal systems, but not so broad as to preclude minimal unity among them. A naturalist conception of the legal system is too narrow: it accounts for unity, but not for plurality. A positivist conception instead is too broad: it accounts for plurality, but not for unity. A conception of the legal system under law as jurisprudence in contrast is neither too narrow nor too broad: it accounts for legal systems as plural, yet somewhat unified. As law as jurisprudence, unlike naturalism and positivism, thus entails a conception of the legal system as comparable, comparative law as comparative jurisprudence - comparative law per se - hence appears possible.
    Lori Snyder (Harvard, Kennedy School), Robert Stavins (Harvard, Kennedy School) and Alexander Wagner (Harvard, Graduate School of Arts and Science) offer Private Options to Use Public Goods: Exploiting Revealed Preferences to Estimate Environmental Benefits.
    Stephen Choi (U.C. Berkeley) and Gaurang Gulati (Georgetown) offer A Tournament of Judges?. I will definitely have something to say about this! But in the meantime, check out the abstract:
      We suggest a Tournament of Judges where the reward to the winner is elevation to the Supreme Court. Politics (and ideology) surely has a role to play in the selection of justices. However, the present level of partisan bickering has resulted in delays in judicial appointments as well as undermined the public's confidence in the objectivity of justices selected through such a partisan process. More significantly, much of the politicking is not transparent, often obscured with statements on a particular candidate's "merit"-casting a taint on all those who make their way through the judicial nomination process. We argue that the benefits from introducing more (and objective) competition among judges are potentially significant and the likely damage to judicial independence negligible. Among the criteria that could be used are opinion publication rates, citations of opinions by other courts, citations by the Supreme Court, citations by academics, dissent rates, speed of disposition of cases, reversal rates by en banc panels and the Court, and so on. Where political motivations drive the selection of an alternative candidate, our proposed system of objective criteria will make it more likely that such motivations are made transparent to the public. Just as important, a judicial tournament for selection to the Supreme Court will serve not only to select effective justices, but also to provide incentives to existing judges to exert effort.

Wednesday, April 16, 2003
Levy on Political Philosophy and Political Theory Jacob Levy has written the best blog post that I have read so far in 2003. Just read it.

New Papers from YJoLT Here is a selection from the new papers up on the Yale Journal of Law and Technology:

Public Choice and Libertarianism Apologies to Julian Sanchez & Henry Farrell: The original version of this posts mixed up their respective quotes!
Here are two very interesting posts on Public Choice and Libertarianism:
    --False Consciousness and the Fringe (from Julian Sanchez's Julian's Lounge). Here is a tiny taste:
      I was skimming over the first chapter of David Stove's Against the Idols of the Age when my eye lighted on a passage concerning what Karl Mannheim called "unmasking" explanations. These are most familiar if you've debated with one of the few genuine Marxists not yet being protected in some endangered species habitat somewhere, and generally purport to explain how it is that person X really only believes/argues Y because of some hidden cause—social conditioning, or economic self-interest. Stove writes:
        But the stupidity which is common to all such “explanations” is, of course, simply that of proceeding as though the merits of a theory—such things as truth, or probability, or explanatory power—could not possibly be among the reasons for its currency. Sometimes, of course, and to some extent, you do need to refer to social circumstances, in order to explain the currency or the origin of a theory. You are more likely to need to do so, obviously, the less merit the theory has.
      This got me thinking about libertarians and public choice theory, which, as I've said before, serve very much the same function in our thought as Marxist class theory and base/superstructure arguments did for socialists in their day.
    --Public choice and libertarianism (from Henry Farrell at Farrellblogger). Here is a sample:
      This helps explain, I think, why public choice hasn't made many inroads into political science, even while other versions of rational choice have done pretty well. Typically, it's crude, ideological, and not very convincing, except to the already convinced. This isn't to say that it's intellectually worthless; some valuable work has been done by public choice scholars. But the good work is (as far as I can see) mostly done by the mavericks, such as Ken Arrow, whose seminal contributions to social choice theory are notably free of libertarian ad-hoccery (unsurprising, since Arrow is himself a convinced social democrat). The problem, as I see it, is that most public choice scholars start from a set of intellectual priors which mean that they don't like or understand politics as such; indeed, they'd like to reform it out of existence.
Before going any further, I want to say that I thoroughly enjoyed both of these blogs. But. Now, public choice theory is no purer than other other academic school, and I am all for being on guard against dogma in all forms. But isn't this analogy just a little forced. There is a real difference between Marxist accounts of false consciousness and public choice theory, and that difference is microfoundations. The strength of public choice theory is that it offers a falsifiable account of the mechanisms by which rational ignorance occurs. The weakness of Marxist theories was that they relied on mysterious accounts of causation--the superstructure reflects the base and so on. A great pleasure of thinking about this topic, however, was that it brought to mind two of my very favorite books, Jon Elster's Making Sense of Marx and Gerald Cohen's Karl Marx's Theory of History. In my mind, the debate between Elster and Cohen on the question whether Marx's theory of history was defective because of a lack of microfoundations was a tour de force. But I'm rambling. Read Sanchez and Farrell.

Politicization of Judicial Selection: Moderation versus Neoformalism
    Introduction There has been a lot of debate and discussion about the politicization of the judiciary. Some of that debate stems from a perception that the Supreme Court has been politicized. This point has been made by both left and right, for different reasons. On the one hand, many critics of the court believe that since the New Deal, the Supreme Court has become increasingly politicized--pointing to the Supreme Court's jurisprudence on privacy, federalism, voting rights, and so forth. Bush v. Goe is a particular lightning rod. Left critics tend to see this decision as entirely unprinciple or even as a judicial coup d'etat; the right tends to see these complaints as hypocritical. On the other hand, there has been a perception that judicial selection process has become more and more political. Again, both left and right make this charge. Thus, the left emphasizes Republican obstruction of Clinton nominees and the ideological extremism of Bush nominees. The right emphasizes Democratic obstruction of Bush nominees and the ideological extremism of the Ninth Circuit. I have argued that both sides tend to see the other as escalating the conflicting, leading to a downward spiral of politicization.
    Two Solutions Here are two possible solutions to the problem:
      Political Moderation Given the rules of the Senate, it is possible that both Democrats and Republicans will have the power to block appointments for the foreseeable future. If the current filibuster rules remain in effect, then it would take one party with both the Presidency and 60 reliable Senators for thier to be unilateral control of the judicial selection process. So here is one way out. Once both sides realize that they control the process, a political compromise might emerge. One such compromise is to select judges who are highly politicized (they decide cases in conformity with their political ideology), but are moderate politically. The political moderation solution avoids extremism. It moves the bench to the political center. It will please the base of neither political party, but so long as neither party gets the Presidency plus 60 Senators, it may be seen as the best that either party can do. Because judges are appointed for life, the practical effect of this solution would be to hand to the judiciary over to the political center--with a substantial time lag. The judiciary of 20 years from now would be reflect a rolling average of the moving political center from now through 2023.
      Neoformalism There is another solution. Judges could be selected on the basis of their possession of the judicial virtues. In particular, we could look for judges who possess the virtue of justice--the disposition to decide in accord with the law rather than on the basis of personal political ideology. If this solution were adopted, it would be likely that during Democratic administrations, judicial appointees would be left to center in political ideology, but dedicated to the rule of law as a matter of legal ideology. contrawise, Republican Presidents would appoint judges whose political commitments were right of center, but who were dedicated to the intergrity and coherence of the law. Of course, political ideology would inevitably influence judging. Sophisticated neoformalists do not believe that a deep commitment to the rule of law is the equivalent of a "cone of silence," insulating the judge's legal deliberations from her political perspective. But the fact is that judges can do a pretty good job of separating law and poltitics--if they that is the target at which they aim.
    Which is the better solution? Should judges aim at the politically moderate decision of the cases presented to them? Or at the legally correct solution? This is a profound question. Answering it requires a normative theory of the law. My answer is that judges should aim to decide the cases before them in accord with the law. I give this answer because of the great values served by the rule of law. Judging according to law creates predictability and certainty. It gives citizens and enterprises the ability to plan their affiars so as to avoid legal penalties and to take advantage of legal powers. Judging in accord with the political center creates some of these advantages, especially as compared to a system where judges are drawn from the two political extremes, with the balance of power shifting from election to election. If judges are political centrists, then the law will change more slowly and be relatively more predictable. Moderation is better than shifting bi-polar extremism with respect to rule of law values. It should now be clear where I am going. As between moderate politicization and neoformalism, it is quite clear which approach better serves the values of the rule of law.
    But is neoformalist judging in the feasible choice set? For the sake of argument, assume that I am right about the normative question. This is not the end of the story. There is still the feasibility question. Is neoformalism feasible? Given that we have gone quite a long distance down the road of politicization, is it really possible for politicians (Senators and Presidents) to compromise on neoformalism? I have argued that it is--if the political actors focus their attention on their long term interests. But my argument assumes that political actors can look beyond their own election and act on the basis of their own long-run preferences. If this assumption is false, then moderation may be the best solution in the feasible set. And even moderation may not be feasible if a focus on short-run reelection is combined with asymmetrical perceptions. If Republicans believe that Democrats are escalating with every move and Democrats believe the opposite, then continued escalation seems inevitable. Where does that end? There are really only two possibilities: deadlock and thorough politicization. Deadlock would mean a depopulated judiciary. Thorough politicizatiohn would mean judges who viewed even ordinary lawsuits as an opportunity to hand out political rewards--in the form of judgments, verdicts, and rulings. Either scenario is grim indeed. If moderation is the very best we can do, I am all for it as the second best. But neoformalism is the first best solution.

Raz at Texas At the University of Texas's Law and Philosophy series, Joseph Raz will be an Anderson Foundation Fellow in Residence. Another coup for Brian Leiter.

Downward Spirals Department Here are two posts of interest re the continuing politicization of the judicial selection process:

New on SSRN Here is today's roundup:
    Christopher Stone (who perhaps should use a middle initial or middle name) (Sullivan & Cromwell) posts Signaling Behavior, Congressional-Executive Agreements, and the SALT I Interim Agreement, forthcoming in the George Washington International Law Review.
    Jenia Iontcheva (Chicago) uploads Jury Sentencing as Democratic Practice, forthcoming in the Virginia Law Review. Here is a taste from the abstract:
      This Article makes the case for jury sentencing from three perspectives: the historical, the theoretical, and the practical. Part I of this Article surveys the history of jury sentencing from colonial times to the present. This history reveals that jury sentencing - a uniquely American innovation - was a valued democratic institution in the early republic, but was gradually abandoned in the twentieth century as scientific approaches to punishment came into favor. The most recent developments from the Supreme Court suggest, however, that jury sentencing may be on the rise again. Part II enlists the insights of modern political theory, and particularly, the ideas of deliberative democratic theory, to show that the movement away from jury sentencing has not been entirely healthy for either the sentencing process or our democracy as a whole. Part III addresses the practical objections that have been leveled against jury sentencing, and suggests that the vast majority of these are either exaggerated or equally present in alternative sentencing regimes. The jury, therefore, emerges as an equally competent, yet more legitimate sentencing institution. Finally, Part IV outlines the actual contours of a possible jury sentencing regime that balances the democratic virtues of jury involvement with efficiency, uniformity, and other values important to the sentencing process.

    Ezra Friedman (Yale, Economics) and Abraham Wickelgren (Federal Trade Commission) offer Bayesian Juries and the Limits to Deterrence.
And from Economic Theory News Francesco Squintani posts Optimal (apparently) Contradictory Contracts.

Tuesday, April 15, 2003
Tuesday Workshop James Kainen presents Bad Law Makes Hard Cases at Fordham.

Gutmann on Identity Politics Courtesy of PoliticalTheory.Info, here is a link to a chapter from Amy Gutmann's Identity in Democracy. And here is a review by Philip Gold. I found the review trite and ill-informed--making the typical anti-academic moves without substantive arguments to back them up--but here is a nice passage from the book itself:
    The time is long overdue for understanding the distinguishing features of interest and identity groups and how they interact. An interest group organizes around a shared instrumental interest of the individuals who constitute the group without any necessary mutual identification among its members. The members are not drawn to the group because of their mutual identification; they are drawn to it because they share an instrumental interest in joining the group.19 The political action of the group reflects the social identification of its members. Even when individual members dissent from some of the group's actions, the group's actions reflect back on the identity of its members because the members identify with the group (even when they dissent from some particular actions of the group). Whereas the defining feature of an identity group is the mutual identification of individuals with one another around shared social markers, the defining feature of an interest group is the coalescing of individuals around a shared instrumental goal that preceded the group's formation.
I always enjoy reading Gutmann.

Downward Spirals Department Just how bad is the politicization of the judicial selection process. Recent events in New Zealand provide some perspective. The amazing Howard Bashman posts this correspondence from New Zealand:
    [H]ere in Wellington, New Zealand, . . . [o]ur government has introduced a bill that will abolish our highest court and replace it with a completely new court, containing judges all to be appointed by the present government.
    You can read more about it here.
    This is terrible constitutional behaviour, especially for a western democracy. The U.S. is fortunate, by comparison, that their biggest dispute is over the confirmation of a judge to an intermediate court.
Hmm. I am not sure that the Estrada confirmation is whole enchilada, but point well taken.

Two Ways of Looking at Politicization of Judicial Selection My colleague, Rick Hasen, reports on a Washington Post article, suggesting a new step in what I see as escalating politicization of the judicial selection process. Here is an excerpt from the story:
    Former president George H.W. Bush has entered the battle over his son's judicial nominees, hosting a fundraiser at his Houston home that netted about $250,000 to buy television ads attacking several Democratic senators seeking reelection next year.
    The ads, which call on Democrats in swing states to abandon delaying tactics against the current president's judicial nominees, could aid Republican challengers in some of 2004's most fiercely contested Senate races. Top officials of the Committee for Justice, which is coordinating the effort, say similar ads they aired last year helped Republican John Cornyn defeat Democrat Ron Kirk in the U.S. Senate race in Texas.
Does this represent escalation or is it merely a political solution to a political problem, as Rick suggests.
Political Scientists and Lawyers Political Scientists and Lawyers see the politicization of judicial selection a bit differently. Rick is trained in both disciplines, whereas my training is in law--with a smidgen of moral and political philosophy. Here is a quote from Rick's latest post, where he reacts to the latest move:
    This is as it should be. The filibuster is a political weapon, and if enough Democrats cannot stand the political heat, then they will cave on the filibuster.
And from the political science perspective, the politicization of the judiciary is indeed "as it should be," and even more, as it must be, especially for those who work in the tradition of Positive Political Theory. (I must sheepishly admit that I don't know what Rick's theoretical orientation within political science is. Rick?) Academic lawyers, on the other hand, tend to see law as a semi-autonomous discipline. Neoformalists believe that law ought to be separated from politics and therefore, are also committed to the belief that law can be separated from politics. I suspect that political scientists tend to see neformalist legal academics as naive. Read Rick's post.

Monday, April 14, 2003
Monday Workshop At NYU today, Sam Estreicher is doing an internal workshop. Title anyone?

Modal Realism and Legal Theory
    One of my very favorite books of all time is David Lewis's On the Plurality of Worlds. There is something absolutely exhilirating about Lewis's philosophical virtuousity deployed in defense of modal realism, the philosophical view that all possible worlds are real and that "actual" is an indexical term, picking out this world, the one we are in. Thus, the term actual in the phrase "the actual world" operates much like here in "right here, right now."
    Hold on there, Solum! . . . . . . an inner voice cries out, "Have you lost your mind? Do I need to remind you that this is the Legal Theory Blog? Why on earth are we discussing metaphysics? In particular, why on earth are we discussing modal realism--the view that all the possible worlds are real? Surely, legal theorists can safely ignore that! Surely, we legal theorists (and practical folk in general) have no more reason to care about modal realism that we have to care about the number of angels that can dance on the head of a pin."
    Should We Care About Non-Actual Possible Worlds? Two days ago, Allan Hazlett (Brown, Philosophy) posted a note (very short paper) entitled On the indifference objection to the indexical theory. Let me share two of Hazlett's quotes from other philosophers:
      --David Lewis:
        [A]n other-worldly evil is just as much an evil as a this-worldly one, and an other-worldly good is just as much a good. [But] do I really care about other-worldly goods and evils? (On the Plurality of Worlds, p. 126)
      --Robert M. Adams:
        We may be moved by the joys and sorrows of a character known to be fictitious; but we do not really believe it is bad that evils occur in a non-actual possible world, or good that joys occur in a non-actual possible world. […] I think that our very strong disapproval of deliberate actualizing of evils similarly reflects a belief in the absolutely, and not just relatively, special status of the actual as such. Indeed, if we ask, “What is wrong with actualizing evils, since they will occur in some other possible world anyway if they don’t occur in this one?”, I doubt that the indexical theory can provide an answer which will be completely satisfying ethically. (“Theories of Actuality”, p.216).
    Hazlett's note is short, fun, and smart. Here is a tiny taste of his argument:
      One feature of the view that (at least some of) our moral reactions to fictions are our moral reactions to possible situations is that it is neutral between modal realism and modal anti-realism, and indeed between types of modal realism and modal antirealism. Thus Adams’s objection fail – we do care about possible goods and evils, and we manifest the fact that we care by reacting the way we do to fictions and other situations in which possible goods and evils are made salient.
    Enough already . . .
    . . . the inner voice screams out. "Answer my question! What does this have to do with legal theory?"
    What Does This Have To Do With Legal Theory? Should legal theorists care about nonactual possible worlds? Let's reframe the question: "Should legal theorists (and legal pratictioners for that matter) care about hypotheticals?" And "Should we care about counterfactual states of affairs?" Consider the following hypotheticals:
      --Suppose you ask a student a hypothetical and the student answers, "I don't have any reaction at all, because the situation you describe occurs in a nonactual possible world, and I don't care about actions or events that occur in any world other than the actual world."
      --Or suppose, you are arguing for damages in a contract case and you start to discuss what would have happened if the contract had been fulfilled, but the judge cuts you off and says, "Counselor, you will limit your discussion to events and actions which have occurred in the actual world. No possible worlds talk is allowed in my courtroom!"
      --Or perhaps you are writing a paper utilizing the analytical machinery of economics or positive political theory, you submit the paper to a journal and get back the following response: "We regret that we find your paper unsuitable for publication. Our focus at the Miskatonic Law Review is exclusively on law in the actual world. Because your paper makes several counterfactual assumptions, we cannot publish it in its present form. If you can revise your paper so as to eliminate all discussion of nonactual possible worlds, we would welcome its resubmission."
    No, no, no! That can't . . . " . . . be right," the inner voice bellows, growing almost frantic in its insistency. "You are suggesting that legal theorists are mostly concerned with nonactual possible worlds! That just isn't possible! I mean actual. I mean . . . you know what I mean!"
    But in fact, legal theory is all about nonactual worlds. That's the way that theories get traction. And we do care, passionately, about what happens in possible worlds. Possibility is our bread and butter. Talking about nonactual possible worlds is what we do. The life of the mind is lived in nonactual possible worlds.
    And we haven't paid enought attention to modality. Legal theory tends to be very sloppy in the way that we treat the modal terms possibility and necessity. Possible worlds semantics has one great virtue (putting aside the metaphysical questions about modal realism). Possible worlds semantics gives us a conceptual vocabulary that allows ambiguous and opaque discussions of possibility to made precise and transparent. This is especially true with respect to one of the most neglected issues in legal theory, the question of feasibility. Quite frequently, debates about substantive issues in legal theory turn out in the end to be premised on a deep disagreement about which options should be included in the feasible choice set. Sometimes the first best solution is off the table, and the discussion turns to second best. Sometimes, substantive positions are dismissed as utopian or as lacking political reality. But if a debate is joined and the participants do not see that they have adopted differing criteria for inclusion in the feasible choice set, the inevitable result is misunderstanding and confusion. [D]o I really care about other-worldly goods and evils? Well, yes, I do.

John Dunn on Trust and Legitimacy Courtesy of PoliticalTheory.Info, John Dunn has posted a paper entitled Trust and Political Agency. Dunn's paper deals with the question of political legitimacy--to me, one of the most important issues in legal and political theory, but also the issue with respect to which I am least satisfied by the positions currently fashionable. Here is a taste of Dunn's paper:
    Anarchists, of course, deny that there can ever be legitimate governmental power, while providentialist thinkers like de Maistre, in well-merited revenge, deny that there can ever be illegitimate governmental power. But on less flighty views it is perhaps evident enough that there can be, though all too often is not, at least imperfectly or partially legitimate governmental power. The view that a number of existing governments are blatantly illegitimate arises naturally out of listening to the morning news or reading the front pages of a reasonably honest newspaper (in any country that permits reasonably honest newspapers). The view that a number of existing governments are at least partially legitimate is perhaps harder to defend, at least to an audience of trained social scientists. But there can be little doubt that if most of the past population of the world were to be transported into many countries in the present, they would (once they had recovered from the shock of arrival) be extremely clear that the governments of these countries had gained markedly in legitimacy over their historical predecessors. Modern <<83>> political theory is obsessively interested in the question of what could make a modern government truly legitimate; but it has not succeeded in developing at all a convincing way of handling this question (contrast Hare 1972; 1976). Locke, on the other hand, distinguished sharply between true civil societies in which governmental power derives in more or less determinate ways from the consent of their citizens, and political units which possess at least equivalent concentrations of coercive power but in which there is neither the recognition nor the reality of any dependence of governmental authority upon popular consent. For him, legitimate political authority was itself a product of human will and action, a verdict in one version or another essentially common to all major seventeenth- or eighteenth-century contractarian thinkers (Riley 1982). Within illegitimate governments, in Locke’s view, the psychological relation of trust between ruled and ruler was likely for the most part to be absent, though it was also apt to be affirmed by those in authority with particular unctuousness. The more complex and the more economically differentiated the society in question, the more likely it was to be absent (Locke 1967: 11, chapter 5). It was within the former - true civil societies with governments of at least partial legitimacy that the category of trust played a second important role in Locke’s understanding of the nature of politics.
I think this is worth a read, but I remain extremely skeptical of consent based theories of legitimacy. Randy Barnett has been doing some important work in this area; perhaps he will get his Constitutional Legitimacy piece up on the web soon. Hint. Hint.
Update Barnett has posted his essay, Constitutional Legitimacy, which also appears at 103 Col. L. Rev. 111 (2003).

Sunday, April 13, 2003
New on SSRN Here is the roundup:

Lazarus on Wild Bill Edward Lazarus (author of Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court) has a review of Bruce Allen Murphy's Wild Bill: The LIfe and Legend of William O. Douglas. Wild Bill is provoking very interesting reviews, including one by Richard Posner (subject of this post). Posner thought that Douglas was a bad man and a bad judge. Lazarus agrees (and who could argue otherwise) that Douglas was a bad man, and agrees that he was not the best of judges, but he finds fault with Murphy's failure to come to terms with Douglas's jurisprudential legacy. Here is an excerpt from Lazarus's review:
    For Murphy, it counts for almost nothing that, as a young academic, Douglas became an early leader of the most important (and still influential) reform movement ever to hit legal academia: the legal realist movement, which brought the study of social science and human behavior into the sphere of legal thinking. At the SEC, Douglas basically rewrote American securities law, putting an end to any number of shady practices. Murphy, however, devotes almost no time to Douglas' accomplishments. Instead, he ascribes his bold reforms to political grandstanding.
    And what about Douglas' 36 years on the court? True, Douglas was not a great justice. Like Byron White, with whom he served for a decade, Douglas was too restless a spirit to prosper in the cloistered world of the court. He churned out more opinions than any other justice in history. Yet remarkably few are true landmarks or exemplars of the laborious craft of judging.
    In some fields, however, Douglas was preeminent. He was the first justice ever to speak about a right to work and to imagine a person's job as a form of protected property. At the height of 1950s anti-communism, Douglas used the forum of anti-communist prosecutions to defend the then unpopular view that no man should be punished "not for what they did, but for what they thought." And he played a decisive role in building the right to privacy that now holds center stage in legal debate.
    In his later years especially, Douglas lost sight of the limits on judicial power. It was as though, sensing his own mortality, Douglas wanted to inscribe in the book of court history his personal views on every issue from the war in Vietnam to the legal rights of trees.
    In this respect, Douglas embodied both the best and worst of the court: He possessed a genius for understanding the components of human freedom but, from selfishness or arrogance, paid little heed to the proper role of a single, unelected, life-tenured judge in a constitutional democracy.
Is Lazarus right? Was Douglas an important scholar and a flawed justice with moments of brilliance? Consider the list of accomplishments: (1) imagin[ing] a person's job as a form of protected property, (2) defending the . . . unpopular view that no man should be punished "not for what they did, but for what they thought," [and] (3) play[ing] a decisive role in building the right to privacy. Surely, Douglas was right about #2, the liberty of conscience--although I am not so sure that he can be credited with any great originality (either as a thinker or judge) on that score. The first and third items on the list, however, are deeply controversial. And so is Douglas's role in the legal realist movement. Lazarus pinpoints the cause of controversy: Douglas "paid little heed to the proper role of a single, unelected, life-tenured judge in a constitutional democracy." And those who disagree with Lazarus about Douglas's accomplishment will surely contend that legal realism (in its Douglas variant), a constitutional right to property in one's job, and the unenumerated right to privacy--all share the same vice, substituting political ideology for legal judgment. Of course, it is easy to criticize one's political opponents for judicial lawlessness, while simultaneously rationalizing the decisions of one's political friends. Such hypocrisy is all too tempting and all too human. It has been practiced by both left and right. In the long run, I think, the verdict of history may be even harsher than Lazarus's assessment of Douglas. Douglas was a Justice who lacked the virtue of justice--the disposition to decide cases in accord with the law rather than personal preference. Above all, Douglas lacked the virtue of judicial integrity. He lacked the deep respect for law and its coherence that is sine qua non of excellence in judging.

Justice as Fairness, The Two Principles and the Basic Structure, Post 2 in an Ongoing Series
    Introduction This is Post #2 in an ongoing series concerned with one of the most interesting debates in contemporary political philosophy. Justice as fairness is the name John Rawls gave to his theory, developed in A Theory of Justice (TJ and Political Liberalism (PL, and summarized in a short book entitled Justice as Fairness. Central to Justice as Fairness are two principles of justice. The first principle deals with basic liberties, and the second principle, the difference principle is concerned (in part) with economic inequality. Here is Rawls's original statement of the difference principle:
      Social and economic inequalities are to be arranged so that they are both:
        (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and
        (b) attached to offices and positions open to all under conditions of fair equality of opportunity.
    Rawls argued that both principles should apply to what he called the basic structure, the constitutional essentials and the fundamental nature of economic organization. Cohen argues that the difference principle cannot be limited to the basic structure, but instead should be incorporated as a principle of personal morality--regulating each individual as she interacts with other citizens. This debate has focused on the question whether individuals may justly demand incentives to contribute to the social surplus to be distributed to the least advantaged. For better or worse, my focus will be on the online discussion of this issue; I will not review the already extensive and interesting literature.
    Roadmap There has been a minor blogospheric eruption of posts on this issue. For a guide to the various comments from Chris Bertram, Micah Schwartzman, Matthew Yglesias, Russell Arben Fox, Tom Runnacles, Andrew Sabl, and John Eden., you can click here. In Part 1, I made two moves. First, I suggested that from within the framework of justice as fairness the question can be approached by convening a special session of the Original Position:
      The representatives have already selected the two principles, and now they must choose whether the principles shall apply only to the basic structure--call this the basic structure version of the two principles (for short, the basic structure version)--or whether they should select a variation in which the two principles apply to individual life plans--call this the comprehensive version of the two principles (for short, the comprehensive version. Which version would be selected by the representative of citizens with the two moral powers behind the veil of ignorance?
    I also responded to an argument made by Micah Schwartzman. This post will take the argument a step or two further.
    The Special Session of the Original Position, Part One How would the parties in the original position deliberate with respect to the question whether they should adopt the basic structure version or the comprehensive version of the difference principle? In order to answer this question, we need to think about the way the Original Position (OP) is laid out. Rawls tells us that the parties deliberate behind a veil of ignorance. In the OP, the veil is quite thick, but in TJ, Rawls makes it clear that as various issues are introduced, the representatives in the OP move through a four-stage sequence, in which the veil is progressively lifted. Should the veil be lifted to deal with the issue posed in the special session? In particular, should the representative parties know only that the citizens they represent have the two moral powers (to form, revise, and act on a conception of the good and a conception of justice)? Or should they also be informed about the particular comprehensive and partially comprehensive moral, religious, and philosophical doctrines that the represented parties affirm? It turns out that this is quite a difficult question, and that we will need to do quite a bit of work to answer it. So, let's assume for now that the veil is not partially lifted. We can then revisit this issue, after we have had a chance to see the implications of addressing the issue with the full veil in place. We further assume that the parties in the OP represent citizens with the two moral powers, that the parties have already chosen the two principles, and that the other features of the OP as described by Rawls are in place.
    The Special Session of the Original Position, Part Two How will the parties in the original position reason? In TJ, Rawls suggests that they will use the maximin principle--which Rawls has borrowed from decision theory. Maximin enjoins a decision maker to choose the alternative that will maximize the value of the minimum outcome. In the OP, outcomes are measured by the primary goods--these include the basic liberties, the social bases of self-respect, and economic advantages such as wealth and income. Of course, the use of the primary goods in the original position is itself controversial--playing a role in the equality of what debates. I shall leave all of those issues aside. (This is a blog, after all.) So, how would the representative parties to the original position apply the maximinin principle to the choice between the basic structure version and the comprehensive version of the difference principle? A branch in the argument. I am now going to consider the implications of a certain way of answering this question. As the argument progresses, it will become apparent that something is deeply wrong with the direction in which I am about to go. But the difficulties will not be fully explored until a subsequent post in this series. Given that this is a blog, I need to beg the indulgence of the reader for this argumentative strategy. So here goes. Suppose the parties reasoned as follows:
      We are behind a veil of ignorance, so we don't which particular individuals or groups we represent. We must therefore consider the interests of all citizens with the two moral powers. This means we must consider the interests of the least advantaged group. In a society well-ordered by justice as fairness, the basic needs principle (introduced by Rawls in PL in part due to the work of Rodney Pfeffer) guarantees that the basic needs of citizens for food, housing, and so forth shall be met. Moreover, the first principle guarantees that a fully adequate scheme of basic liberties shall be in place. Under these circumstances, we should aim to maximize the minimum share of wealth and income that flows to the least well off group. If we choose the basic structure version of the difference principle, citizens will be able to demand greater incentives for contributing to the social surplus. If we choose the comprehensive version, citizens will have an obligation of political morality to contribute to the surplus without such incentives. Clearly, the latter provides a higher minimum than the former. Therefore, we should choose the comprehensive version of the difference principle.
    It looks like Rawls's own machinery can be turned against him. Is this correct? Was Rawls's misguided in his insistence that the two principles apply only to the basic structure? These questions and more will be answer in the next installment.

Saturday, April 12, 2003
Scalia on Politicization & Neoformalism Justice Scalia's recent speech at the University of Mississippi raises issues about the relationship between theories of constitutional interpretation, politicization of the judiciary, and the judicial selection process. Here is an excerpt:
    While Scalia's strict interpretation protects those rights expressly written by the framers in 1791, he said he doesn't recognize rights that many people today take for granted as constitutional.
    [Interpreting the constitution as a living document], Scalia said, goes far beyond [the] role [of Supreme Court Justices] as jurists and turns justices into policy makers, which in turn pollutes the selection process.
    Scalia referenced the embattled Bush nominations to the U.S. Court of Appeals.
    "People have finally figured out ... that judges aren't interpreting law anymore, they're making policy," Scalia said. "So I don't want a good lawyer, I want someone who agrees with me.
    "We'll have to have a mini-constitutional convention every time they select a new justice of the Supreme Court."
I sometimes agree and sometimes disagree with Scalia--see my A Law of Rules: A Critique and Reconstruction of Justice Scalia's View of the Rule of Law. Surely, many will see Justice Scalia's advocacy of neoformalist views about constitutional theory to be disingenous; they will argue that Scalia is a neoformalist of conveniece or that neoformalism is impossible. But if you can, put those objections aside for a moment and focus instead on Scalia's notion that politicization of the Supreme Court turns every confirmation into "a mini-constitutional convention." Isn't this essentially right? And how is this supposed to work, especially in an intensely partisan atmosphere? It is one thing to argue for "transformational appointments" in extraordinary circumstances--where national crisis combines with overwhelming and sustained electoral support to give the President a mandate to act as the tribune of the people. Concede for the sake of argument that transformational appointments are legitimate in extraordinary circumstances. But that does not entail the conclusion that judicial nominations and confirmation--ordinary politics conducted with an eye to the next election--is the proper venue for a "mini-constitutional convention." What argument justifies that?

Justice as Fairness, The Two Principles and the Basic Structure, Post 1 in an Ongoing Series
    Introduction If you have a lot of frequent blogsurf miles, you know that there is an ongoing blogospheric eruption triggered by a post by Chris Bertram on the difference principle. In particular, the controversy takes off from Rawls's idea that that the two principles apply to the basic structure--to simplify, the constitutional essentials and the basic form of economic organization. Gerald Cohen has mounted a critique of this feature of Rawls's theory, and his critique has generally been well recieved--with some notable exceptions. I have been writing promissory notes for at least two weeks, and now the piper must be paid. This is the first in a series of posts on this interesting and important topic. Along the way, I shall both develop an independent account of the issue and respond to arguments advanced by Chris Bertram, Micah Schwartzman, Matthew Yglesias, Russell Arben Fox, Tom Runnacles, Andrew Sabl, and John Eden.
    Framing the Issue In this series of posts, I shall hope to convince you that Gerald Cohen's critique is based on a fundamental misunderstanding of justice as fairness, the theory that Rawls developes in A Theory of Justice, hereinafter TJ and Political Liberalism, hereinafter PL. I have already front loaded the blog-abbreviated versions of my arguments in an earlier post. Rather than drawing more fire by repeating my trenchant and underdeveloped comments here, I want instread to simply frame the issue. What is this debate about? At bottom, I think Cohen frames the debate in a way that can be reconstructed as follows:
      Rawls claims that the difference principle is limited to the basic structure, but Rawls's arguments for the difference principle do not support this claim. In particular, citizens who affirm justice as fairness should be committed to the difference principle as a fundamental component of their own comprehensive or partially comprehensive moral, religious, or philosophical doctrines.
    Later in this series of posts, I shall argue for a different way of stating the question, but this way provides enough clarity to move a few steps forward.
    Approaching the Issue from a Rawlsian Perspective So how might this issue be approached from a Rawlsian perspective. Let' s back up. From PL we know that we start with idea of society as a system of social cooperation among free and equal citizens who possess the two moral powers--the first relating to our ability to have, revise, and act on conceptions of the good, and the second relating to similar abilties with respect to a conception of justice. We then imagine representatives of such citizens in the original position, behind a veil of ignorance, choosing between candidates principles of justice. Let me call your attention to the fact that I am now about to make an important move. Let us put the question posed by Cohen to Rawls is a special session of the Original Position. That is, let's suppose that the representatives have already selected the two principles, and now they must choose whether the principles shall apply to the basic structure--call this the basic structure version of the two principles (for short, the basic structure version)--or whether they should select a variation in which the two principles apply to individual life plans--call this the comprehensive version of the two principles (for short, the comprehensive version. Which version would be selected by the representative of citizens with the two moral powers behind the veil of ignorance? Having tantalized you with the question, I am going to postpone the answer until the next post in this series
    Micah Schwartzman's Challenge Instead, I am going to switch gears and turn your attention to an argument made by Micah Schwartzman, early on in the ongoing exchange of arguments. Here is what Micah wrote:
      Solum is objecting here to the moral demandingness of Cohen's conception of justice. Someone sympathetic to Cohen's argument might respond to this criticism by saying that one's interest in pursuing a comprehensive conception of the good is protected by a personal prerogative, or perhaps by the value of liberty. But that this value of liberty, or the prerogative to pursue one's personal interests (defined here expansively in terms of a conception of the good), is in tension with the demands of social justice. Justice requires that we act so as to benefit the worst-off. Yet we recognize that justice isn't the only moral value. A plausible balance of moral values will provide some space for the pursuit of personal interests. The upshot of the argument, however, is that citizens must consider whether deviations from equality-producing activities are justified by their personal pursuits. They cannot avoid making these sorts of difficult judgments by claiming that their every-day decisions are not the proper subject of justice. I take it this is what Cohen means when he says that justice requires a social ethos according to which citizens apply principles of justice even when they are making ordinary decisions about how to lead their daily lives. Does something like this argument make Cohen's critique more plausible?
    What Does Micah Mean? As Micah presents the argument the crucial claims are, "citizens must consider whether deviations from equality-producing activities are justified by their personal pursuits. They cannot avoid making these sorts of difficult judgments by claiming that their every-day decisions are not the proper subject of justice." There are at least two ways of reading this crucial passage. Let me lay out the two readings:
      First, Micah might simply be claiming that the fact that a citizen in a society well-ordered by justice as fairness affirms justice as fairness (or one of a family of theories of justice that converge on the constitutional essentials) does not entail that that the citizen need not consider questions of equality from the perspective of the citizen's comprehensive moral, religious, or philosophical doctrine. That is, justice in the basic structure does not exhaust the value of justice. Citizens do more than simply support the basic structure. They interact with one another in myriad ways. It would be extremely odd to think that justice in the basic structure relieves citizens from the moral obligation to treat one another justly in other ways. This is more naturally established by reference to justice in transactions. No one would think that Rawls's limitation of justice to the basic structure relieves citizens of the obligation to deal fairly with one another--to avoid cheating or misrepresentation for personal gain--even if not prohbited by law.
      Second, Micah might be making a much more ambitious claim. Micah might be claiming that the value of equality that should be incorporated in each and every citizens comprehensive conception of the good is the same value of equality that is reflected in the conception of justice that applies to the basic structure. In particular, each citizen should incorporate the difference principle as a module in the moral theory that orders their life plan and their interactions with fellow citizens.
    If Micah is making the first point, then Rawls can accept his point but still affirm that the two principles apply to the basic structure. Of course, nothing in justice as fairness tells citizens that they can or should disregard the value of justice in their own comprehensive conceptions of the good. That would be fundamentally inconsistent with the revised notion of the role of justice as fairness that Rawls presents in PL. But if Micah is making the second, more ambitious claim, then his argument fails. The plausibility of Micah's argument is based on the first, innocuous, innocuous version of the claim. The second version is not plausible on its face. Why would we assume that the principles that govern the interaction between citizens are the same as those that order the basic structure? When one looks at the content of the two principles, it becomes clear that they will not easily play the role of principles of personal morality. In Micah's words, it is implausible to think that "justice requires a social ethos according to which citizens apply principles of justice even when they are making ordinary decisions about how to lead their daily lives." This is especially clear when on looks at the first principle, which would be particularly inapproriate as a principle for the ordering of private life, families, churches, and so forth. The burden of pesuasion still rests with Micah to establish a claim that actually clashes with Rawls's position that the two principles apply to the basic structure. To be continued.

Friday, April 11, 2003
Welcome to A Taxing Blog Courtesy of Greg Goelzhauser, I've just learned about A Taxing Blog--which adverises itself as:
    A Tax Policy Blog -- for tax profs, policy wonks, and other shameless tax nerds.
Some of my best friends are taxprofs, wonks, and nerds!

New on SSRN Here is today's roundup:

Oman's Analysis of Judicial Selection Nate Oman (of A Good Oman) has a post on the judicial selection process that is both amusing and insightful. You really must read it for yourself, but here is something to whet your appetite:
    The judicial nominations process is essentially anarchic. Democrats and Republicans can fight one another about who should make it onto the courts but there is really no third party that they can turn to in order to resolve their disputes. The criteria by which the Senate exercises is "advise and consent" role are not amenable to judicial intepretation or enforcement. No one is going to go to federal court to get an injunction against the Estrada filibuster. Thus within the well defined institutional roles -- i.e. presidents nominate, Senates confirm -- the process is not ordered by legal rules.
    What it is ordered by is a feuding norm. . . . We have a feud between Democrats and Republicans. Unfortunately, the tribes are divided into two kinds of tribesman, those who can kill (Senators) and those who can be killed (judicial nominees). Once the feud starts it will only be possible to retaliate against "innocent" members of the opposing tribe.
And don't forget to check out Rick Hasen's blog for reportage and opinion about the ongoing nominations battles.

Friday Workshops Here is roundup:
    Correction: At the University of Pennsylvania’s law and philosophy series, John Gardner (Oxford) was on the schedule, but his workshop has been delayed until next Friday. His paper will be Backwards and Forwards with Tort Law.
    Correction: At Loyola Marymount, Catherine Fisk does an internal workshop entitled Employment Law without Law? The Dispute Resolution Problem (co-authored with David Schwartz of Wisconsin).
    At Buffalo, Errol Meidinger presents The Ontology of Property: Reflections of an Unreconstructed Constructionist.
    At the University of San Diego, two events:
      Mark L. Movsesian (Hoftsra University) presents Rediscovering Williston.
      Steve Shavell (Harvard) presents On the Writing and Interpretation of Contracts.

Phillip Quinn on Charles Taylor on William James Phillip Quinn (the supersmart & learned guy from Notre Dame) has a review of Charles Taylor's book Varieties of Religion Today: William James Revisited on the wonderful Notre Dame Philosophical Reviews. Here is a tasy morsel:
    Taylor is convinced that a profound alteration in the social conditions of religious belief has taken place in the past half-century. As he sees it, the consumer revolution and the rise of youth culture are external manifestations of this change. The spread of expressivist individualism and the culture of authenticity downward from an intellectual elite, which is a legacy of Romanticism, reflects this transformation at the level of cultural self-understanding. The world of fashion and its space of mutual display, already visible in some of Manet’s paintings and in Baudelaire’s fascination with the flâneur and the dandy, is another indication of this shift in our ways of being together in society. (And, I would add, Walter Benjamin’s vast, unfinished Arcades Project remains of interest to us chiefly because it hints at ways in which we might make the new social space of mutual display comprehensible to ourselves.) The upshot of this alteration in social conditions for religion is a post-Durkheimian dispensation in which “the spiritual dimension of existence is quite unhooked from the political” (76). In this new dispensation, the morality of mutual respect and toleration seems to be embedded in a free-standing ideal of authentic self-fulfillment, not inscribed in a divinely ordained moral order that justifies the enforcement of norms of sexual ethics or economic productivity. According to Taylor, “in the new expressivist dispensation, there is no necessary embedding of our link to the sacred in any particular broader framework, whether ‘church’ or state” (95). Religiously speaking, society now leaves each of us on our own, at liberty to do our own thing spiritually. For Taylor, this is the state of affairs brilliantly foreshadowed by the individualistic experientialism advocated by James.
But I was most taken by the following passage in Quinn's review:
    During the past decade or so, several American liberal political theorists have argued for restrictions on the use of religious reasons in the public square. Robert Audi is an especially striking instance of this phenomenon. In his recent Religious Commitment and Secular Reason, he contends that the ethics of citizenship for a liberal democracy contains prima facie obligations not to advocate or support laws or public policies that restrict human conduct unless one has, is willing to offer and is sufficiently motivated by adequate secular reasons for such advocacy or support. It has for quite a while seemed to me rather odd to find liberal theorists making a big fuss about religious reasons in politics at a time when religion has been steadily losing influence in American public life, becoming ever more marginalized and privatized. Perhaps Taylor’s conceptions of neo-Durkheimian and post-Durkheimian dispensations can help us to make sense of this situation. If you believe, with Taylor and Casanova, that we now live under something like a post-Durkheimian dispensation, you will find it natural to view interventions in politics by the Catholic church and the Christian right as an attempt to deprivatize religion and a challenge to the status quo. And if you are more or less content with a post-Durkheimian order and regard such a challenge as a threat to it, you might well, like Audi, think it urgent to respond by insisting on secularist principles of political morality. Of course, this interpretation of our situation can be contested. From the perspective of many members of the Catholic church and the Christian right, it probably seems that we still live under a neo-Durkheimian dispensation, albeit an embattled dispensation, subject to severe pressures toward secularization and the privatization of religion. Thus understood, our situation is one in which the proposals of liberal theorists such as Audi pose a threat to the status quo, because they would, if accepted, push us further in the direction of an unattractive post-Durkheimian order. I do not think it would be easy to determine which of these points of view is closer to being correct. The point I wish to make by setting them forth is rather that Taylor’s conceptual framework seems to provide an insightful way of articulating them and so may turn out to be of assistance when we try to understand the social context of current debates about religious arguments in the public square.
This may be a little hard to digest, but Quinn has a very important insight here about the way that the religion and public reason debates have been framed. I have followed this literature (sometimes very closely, sometimes at a distance) for almost a decade now, and I am encouraged by the substantial convergence in views that has occurred over that period. This despite the fact that the subject-matter lends itself to polarization and misunderstanding. Read Quinn's review!

Interpretation at Binghampton On April 11-12, the 20th Annual Conference on Philosophy, Interpretation, and Culture is on at Binghamton University.

Downward Spirals Department Supreme Court Justice Anthony Kennedy has weighed into the debate between Rick Hasen and myself over the politicization of the judicial selection process. Rick has been arguing that the current fights are part of a long term pattern, he describes as a roller coaster. I've been arguing that we are in the midst of a downward spiral of politicization. Here are Kennedy's remarks, made at the University of Virginia:
    The increasingly fractious and partisan climate surrounding nominees for federal judgeships may damage the court system, and both political parties are to blame, Supreme Court Justice Anthony M. Kennedy said Thursday.
    The Supreme Court cannot tell the Senate how to handle judicial nominations, Kennedy acknowledged during remarks to law students at the University of Virginia.
    ``But they had better start thinking about the dangers to judicial independence from insisting on nominees that have particular views,'' Kennedy said.
    ``They are politically elected and act in a political way,'' said Kennedy, who was nominated for the high court by President Reagan. But ``there should be a recognition that a good judge can be willing to change his mind or change her mind.''
    Kennedy was asked specifically about the Senate filibuster of one of President Bush's nominees for a seat on a federal appeals court. Democrats are trying to put off a vote on the nominee, lawyer Miguel Estrada, but Kennedy said the real problem is broader.
    ``What's going on now, there's a lot of fingerpointing, 'Oh, the Democrats are holding this up,''' Kennedy said. ``Both parties have been guilty of this, there's some payback going on here, but I think it's time for them to come together.''
    The bitter partisanship surrounding the failed nomination of Robert Bork to the Supreme Court ultimately led to Kennedy's own easy confirmation as a consensus candidate in 1988. The nomination process became even more fraught in 1991, when Clarence Thomas was accused of sexual harassment during his marathon confirmation hearings. He in turn called the process a ``high-tech lynching.''
    The nomination battles over lower federal judges play out with far less public scrutiny, but many lawyers and politicians see the Estrada impasse as a dress rehearsal for a political fight over any vacancy on the Supreme Court.
Well, yes. My thanks to Rick for his post, pointing to the A.P. article about Kennedy's speech.

Thursday, April 10, 2003
Slippery Slopes Department gTexts has a nice post on Eugene Volokh's (founding parental unit of the United Bloggers of Volokh) Slippery Slopes article. Courstesy of Nate Oman of A Good Oman. If you have not already done so, read Volokh's article also in HTML.

Difference Principle Redux Department--Updated Yet Again and Again Andrew Sabl's contribution to the continuing blogospheric eruption on Cohen's critique of Rawls's argument that the difference principle should be limited to the basic structure has drawn a sharp and keen response from Chris Bertram as well as posts by Russel Arben Fox and Matthew Yglesias and Tom Runnacles. Micah at Political Theory Blog pointed me to some of the new posts, Jacob Levy promises to weigh in again. Here is a guide to the posts:Everytime I think I have time to respond to this, it gets bigger! I better act fast!

New on SSRN Here is the roundup:
    Gary Charness (UC Santa Barbera, Economics) and Martin Dufwenberg (Stockholm, Economics) upload Promises and Partnership
    The prolific and always interesting Ann Bartow has posted Our Data, Ourselves: Privacy, Propertization, and Gender, forthcoming in the University of San Francisco Law Review. Here is a taste:
      This Article starts by providing an overview of the types of personal data that is collected via the Internet, and the ways in which this information is used. The author asserts that because women are more likely to shop and share information in cyberspace, the impact of commodification of personal data disproportionately impacts females, enabling them to be "targeted" by marketing campaigns, and stripping them of personal privacy. The author then surveys the legal terrain of personal information privacy, and concludes that it is unlikely that the government will step in to provide consumers with substantive privacy rights or protections. Finally, the author asserts that perhaps intellectual property rights, so powerful in other contexts, can be adapted to provide individuals with ownership and control over their personal information. While "high barrier" intellectual property protections are in many respects detrimental to society, the author argues that if corporations are entitled to benefit from then and "own" information, then individuals should be as well. Ownership of information by individuals allows them to fashion something resembling privacy in personal data.
    Richard Pildes (NYU) offers up Keeping Legal History Meaningful, forthcoming in Constitutional Commentary.
    Rochelle Dreyfuss (NYU) has uploaded Varying the Course in Patenting Genetic Material: A Counter-Proposal to Richard Epstein's Steady Course.

Thursday is Workshop Day Here is today's roundup:
    At Yale's Legal Theory series, William Simon, Stanford (Law), Destabilization Rights: How Public Law Litigation Succeeds. Here is a taste from the paper:
      The evolution of structural remedies in recent decades can be usefully stylized as a shift away from command-and-control, injunctive regulation toward experimentalist intervention. Command-and-control regulation is the stereotypical activity of bureaucracies. It takes the form of comprehensive regimes of fixed and specific rules set by a central authority. These rules prescribe the inputs and operating procedures of the institutions they regulate. By contrast, experimentalist regulation combines more flexible and provisional norms with procedures for ongoing stakeholder participation and measured accountability. In the most distinctive cases, the governing norms are general standards that express the goals the parties are expected to achieve, that is, outputs rather than inputs. Typically, the regime leaves the parties with a substantial range of discretion as to how to achieve these goals. At the same time, it specifies both standards and procedures for the measurement of the institution's performance. Performance is measured both in relation to parties' initial commitments and in relation to performances of comparable institutions. This process of disciplined comparison is designed to facilitate learning by directing attention to the practices of the most successful peer institutions. All these norms are treated as provisional and subject to continuous revision with stakeholder participation. In effect, the remedy institutionalizes a process of ongoing learning and reconstruction.
    At the University of Michigan's Law and Economics series, Louis Kaplow (Harvard) presents, Why Measure Inequality? and Primary Goods, Capabilities,...or Well-Being? Here is tidbit:
      In sum, as attractive as issuing inequality A report cards might be, whether to economists or to politicians looking for effective rhetoric to support their policy precommitments, it is difficult to justify such grading procedures.10 Perhaps inequality scores are more persuasive than social welfare measures because the latter seem more controversial. That is, inequality scores appear to be objective indicators whereas social welfare measures obviously incorporate value judgments. However, it this impression is obviously mistaken given the origin of normative inequality indexes in SWF=s. (At best, reporting inequality scores might be seen as a corrective in light of the common practice of presenting comparisons of GDP per capita or measures of the inefficiency of redistributive policies, both of which ignore distributive effects that may be important in assessing social welfare. But this use is a rather limited one, itself inferior to reporting social welfare measures.)
    At George Mason, Kevin Mcabe, (George Mason, Interdisciplinary Center for Economic Science) offers Does the Brain Reward Working for Others? Well, does it?
    And finally at Boston University's series, Andrew Kull presents Restitution as a Remedy for Breach of Contract.

Wednesday, April 09, 2003
Difference Principle Redux Department I have updated my guide to the posts on the ongoing blogospheric eruption concerning Jerry Cohen's critique of John Rawls's argument that the difference principle should be limited to the basic structure. You can scroll down or use this link. When you get there, you will find pointers to new posts on Political Theory Blog and the Volokh Conspiracy.

Downward Spirals Department Courtesy of the Rick Hasen's super Election Law Blog, this story from the Washington Post suggests that democrats may filibuster Patricia Owen, a Bush nomine to the U.S. Court of Appeals. Are we bottoming out on a roller coaster ride (as Rick suggests) or is the another move in a downward spiral of politicization (as I contend)? I hope that Rick is right, but I fear he is not. Also, check out this post from Howard Bashman of How Appealing.

Rawls and Nozick Right around 1980, I was in the philosophy department at UCLA. I have vivid memories of a wonderful class on Utilitarianism with the late Greg Kavka, and terrific courses, one on Kant and the other on Rawls and Nozick by the late Jean Hampton. All of this is by way of introduction to two posts on Chris Bertram's Junius:There are way too many "lates" in this post. Rawls lived a full span of years, but it is surely tragic that Kavka, Hampton, and Nozick all died before their times. A Theory of Justice is already a classic work of political philosophy, but the counterpoint provided by Anarchy, State, and Utopia was extremely important in the flowering of political philosophy that followed. One important aspect of that flowering has been scholarship that engages the great political philosophers, and Kavka and Hampton both made their reputations with important books about Hobbes. I only met Nozick on a few occaisions, but Rawls, Hampton, and Kavka were all my teachers and friends and they are greatly missed.

New on SSRN Here is the roundup of paper posted yesterday afternoon and this morning:
    F. Andrew Hanssen (Montana State Bozeman, Economics) posts Learning about Judicial Independence: Institutional Change in the State Courts
    Cindy Schipani and Timothy Fort (University of Michigan, Business) upload Adapting Corporate Governance for Sustainable Peace What is this about? Here is part of the answer:
      In previous work, we argued that there is a link between corporate governance and the reduction of violence. In this manuscript, we further explore that link with a focus on how corporations can work toward the goal of reduction of violence in the societies in which they operate. Here, we pose the question of how well suited various corporate governance regimes are to face these complexities, and how they can do so in ways that are consistent with their fundamental principles. We focus on the corporate governance regimes of the United States, Germany and Japan. A common denominator of the political entities addressed is a commitment to a political regime of democracy.
    Jonathan Molot (George Washington) posts An Old Judicial Role for a New Litigation Era forthcoming in the Yale Law Journal. I hope to post some comments on this later today.

Workshop Today At Florida State, Marcus Cole (Stanford) does Limiting Liability Through Bankruptcy.

Tuesday, April 08, 2003
Lessig on Pennsylvania IP Blocking Statute Larry Lessig posts on the Pennsylania statute allowing the Penn AG to get a secret order blocking the IP Addresses of servers that provide child pornography. And if you are interested, Jonathan Zittrain has a very fine paper on this topic, available on SSRN: Points of Internet Control. And Minn Chung & I have a paper with a section on this topic, The Layers Principle: Internet Architecture and The Law, which will go up on SSRN soon. Update: Orin Kerr (of the Volokh Combination for the Monopolization of the Blogosphere) has a really excellent analysis of Larry's post, get it here.

Difference Principle Redux Department--Updated
    After I posted this, yet another round of comments has been posted. Scroll up or use this link to get the latest.
I've received yet another thoughtful set of comments on my critique of Jerry Cohen's argument that the difference principle cannot (for good reasons) be limited to the basic structure, this time from John Eden, a PhD candidate at Stanford. Before getting to John's comments. Here is a quick guide to the blogospheric activity: And here is John Eden's contribution John writes:
    I’ve two responses, the first of which is motivated by some of John Roemer’s views about the compatibility of capital markets and an equitable distribution of basic resources and corporate profits, and the second of which is more straightforwardly motivated by my own views about what reciprocity is all about in the context of evaluating Rawls’ TJ. 1. Van Parijs seems a bit unaware of the distinction between a) vesting the power and resources which are indispensable to structuring and reproducing core social and economic institutions over time, and b) distributing resources to private parties. It is certainly possible to vest the control of resources in the experts without giving them private power over those holdings, which they might use (as you seem well aware) for their own undemocratic designs. General Tommy Frank presumably has the requisite experience to decide how million-dollar munitions, equipment, and invaluable military personnel would be most wisely utilized. But he doesn’t own these resources in the sense that Van Parijs, and Rawls himself, seem to intimate is necessary to promote the public weal. Control and ownership are two different things, and we need not vest the latter in individuals in order to promote excellence in executing the former. 2. While I would concede that Cohen has a difficult time nailing Rawls in that famous article, reciprocity is actually much more complicated than Rawls notices in TJ (but seems to get a better handle on in Political Liberalism), and therefore it’s a bit unfair to upbraid poor Cohen for inadequately criticizing an under-developed conception thereof. One thing we do know is that reciprocity is only to be applied to the basic structure, implying that we need not treat our fellow citizens with reciprocity in the context of public debate and politics in order to treat them fairly. If we’re willing to structure the basic institutions of society in a way that reasonable people would have to admit serves everyone’s fundamental interests (read: provides primary goods), then it seems that we’ve met the demands of reciprocity. So far so good. Your worry is that if we take Cohen seriously, it follows that everyone outside the least advantaged group (LAG) would have to adopt the LAG’s interests as their own and 2) everyone outside the LAG would not be entitled to their own conception of the good. Both of these rejoinders to Cohen seem off point to me, even given a relatively unsympathetic interpretation of his views. Two observations are relevant in this connection. First, given that Cohen believes (pace Rawls) that a commitment to the DP would extent beyond the confines of the original position, and hence beyond the basic structure, the more fundamental question to put to Cohen would be something like the following: Why should we understand the demands of reciprocal treatment in this way, especially when Rawls can certainly respond by claiming that an appropriately political conception of justice requires that the scope of its demands be circumscribed – i.e., that they not go beyond the original position. It’s not just that we’re not required to apply the DP everywhere; it’s that doing so is to misunderstand what it is designed to do. But on the other hand, imagine that Cohen could come up with a persuasive argument for extending the DP – or our sentiments about what is just and fair more generally – beyond the original position. I gather that your riposte would be that this extension violates a central tenet of Rawls’ view: the principle that all groups should benefit, not just one. But the way you frame the issue – especially rhetorically – makes it appear as though there are only two futures available to us: one in which there’s innovation and plenty of incentives to facilitate ingenuity and healthy commerce, and another in which there’s almost no innovation because everyone is trying to a) align their own life plans (conception of the good) with those of the LAG and b) adopt the welfare of the LAG. As I see it, there are two flaws in this picture: 1) Incentives are diverse: Everyone – save perhaps Oliver Williamson – knows that diverse incentives motivate human conduct, and sometimes non-monetary incentives work better than monetary ones. No one becomes a family doctor to get rich; the social respect is sufficient “payment.” 2) These aims aren’t mutually exclusive: If – and this is a big if – justice identified my central charge as a human being to be the reduction of suffering and immiseration in the world, would not justice also allow me the periods of respite, celebration, and creation necessary to maintain the spirit and verve indispensable to undertake this lofty objective successfully? An[d] by the way, the basic upshot of what I’ve just said under (2) has some parallels with Peter Singer’s strategy for rebutting the principal objection to his view (The objection is that relatively affluent Westerners would have to live an unreasonably frugal life in order to serve the interests of those starving in Bengal.). Singer convincingly argues that our pre-reflective intuitions about whether different social groups would benefit from more humanitarian (yet voluntary) social practices do not provide dispositive evidence about the moral advisability of those practices. In other words, if someone says that handing over a sizable portion of one’s disposable income to the GFW or Oxfam does not “benefit” a certain social group or “allow it to have its own conception of the good”, the real issue is whether our baseline intuitions about the benefits that or conceptions of the good to which these groups allegedly have a right are indeed legitimate. On the other hand, I would wholeheartedly agree with something that is implicit in your blog in this connection: Cohen is unabashedly critical of Rawls’ attempt to ground a workable theory of justice in our (appropriately pruned) self-interest. This is certainly the fundamental issue about which they disagree, and very little headway can be made until it is addressed head on.

Bring Back Seditious Libel? Micah Schwartzman offers the following provocative idea on Political Theory Blog:
    [W]hy should the publisher of . . . a report [defaming the government] have the freedom to defame, libel, or maliciously criticize the government? Madison's answer in the Virginia Report, available here, is that "it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing characters and measures." . . . [I]s Madison's argument as strong as we think it is? Consider a hypothetical seditious libel law that applies only to (i) false factual claims whose publication would (ii) threaten imminent and serious harm. The hypothetical statute might also require (iii) that the government establish the falsity of the claims in question beyond a reasonable doubt, and (iv) that the prosecution show actual malicious intent on the part of the publisher. Additionally, the statute might also require (v) that the government pay lawyers' fees and damages if it loses its case. Would a law of this kind still have a chilling effect on legitimate political speech? I think it probably would. But for the sake of argument, consider a defense of the hypothetical statute that builds on arguments analogous to some of those made by the Supreme Court today in Virginia v. Black (upholding Virginia's ban on cross-burning with the intent to intimidate) . . .
Before you get the wrong idea, I should add this important qualifier:
    When the government has as much power as it does in the United States today, these types of laws don't seem all that important--indeed, we have good reason to see them as highly pernicious. But in unstable democracies threatened with civil dissolution, or in countries ruled by so-called "liberal authoritarian" regimes, the arguments in favor of restricting the freedoms of political speech and press may seem much more compelling. At any rate, I'm reminded of Mill's line "that if opponents of all important truths do not exist, it is indespensible to imagine them, and supply them with the strongest arguments which the most skillful devil's advocate can conjure up." We're all familiar with the most powerful objections to having a crime of seditious libel. What's the best argument you can come up with in favor of it?
Two comments: First, although some tweaking might be necessary wouldn't something along these lines be constitutionally permissible under New York Times v. Sullivan? Second, isn't Micah right when he suggests that our conception of freedom of speech is relative to the strength and stability of our institutions? Read Micah's post.

Grotius Interview Dean Falvy's interview with Grotius is a must. Here is a taste:
    Q: The Bush Administration has argued that it is waging war against Iraq now in order to protect the U.S. from possible attacks in the future. But how can this war be justified on the grounds of self-defense, if Iraq has not actually attacked the U.S.? Grotius: A just cause of war is an injury, which though not actually committed, threatens our persons or property with danger.... The danger must be immediate, which is one necessary point. [But] when an assailant seizes any weapon with an apparent intention to kill me, I have a right to anticipate and prevent the danger. Q: The Bush Administration says Iraq has made efforts to acquire chemical, biological and nuclear weapons with just such an intention. But the U.S. has tolerated such weapons in the hands of other countries and holds some of them in its own arsenal. Doesn't this inconsistency undermine its self-defense argument? Grotius: [T]his kind of defense derives its origin from the principle of self-preservation, which nature has given to every living creature, and not from the injustice or misconduct of the aggressor. Q: So it's not that the weapons themselves that are bad, it's that they're being developed by a potential adversary? That sounds a bit subjective. We're supposed to be talking about law. Isn't there a danger that leaders will claims fears of attack, and the consequent need for self-defense, as a pretext for conquest? Grotius: Many wrongs proceed from fear... Xenophon says, "I have known some men, who partly through misrepresentation, and partly through suspicion, dreading one another, in order to prevent the supposed intentions of their adversaries, have committed the most enormous cruelties against those who neither designed, nor wished them any harm."
I thought and laughed, and pondered, and thought again. You won't regret surfing to this!

Monday, April 07, 2003
New on SSRN A spate of new scholarship was posted to SSRN today. Here is the roundup:
    O. Reed (Georgia, Business) posts Nationbuilding 101: Reductionism in Property, Liberty, and Corporate Governance.
    Joanna Shepherd (Clemson, Economics) uploads Are Criminals Like Us? Risk Attitudes, Sentencing Guidelines, and Increased Crime.
    Elizabeth Garrett (Southern California) offers up Legislating Chevron, forthcoming in the Michigan Law Review. Here is an excerpt from the abstract:
      My project in this article is not to argue in favor of a particular rule of judicial review but rather to focus on a feature common to all of them. Whether courts search for some direction from Congress or whether they allocate interpretive authority based on other factors, all the methods of judicial review provide that a clear congressional instruction overrides any judicial rule. In the second part of this article, I describe a mechanism that could provide Congress an opportunity to provide explicit instructions about law-interpreting authority. Low expectations for congressional performance in this area stem in part from a failure to think creatively about the kinds of legislative vehicles available to Congress and about internal rules that can structure its deliberation. In statutes that periodically re-authorize administrative agencies and large federal programs or that annually appropriate funds to agencies, Congress could determine on an agency-by-agency basis whether to delegate the power to make policy through statutory interpretation with respect to all statutes that the agency administers, or with respect to some subset of decisions. This proposal is designed to take seriously the feature of judicial review of regulatory statutes that contemplates the possibility of an active role for Congress.
    Lois Shepherd (Florida State) presents Face to Face: A Call for Radical Responsibility in Place of Compassion.Here is a taste from the abstract:
      The article has two primary purposes. The first is to critique compassion as an ethical response to the person who is in need or suffering. Because of the problems associated with compassion's imaginative dwelling, its basis in equality, and the lack of any moral duty associated with it, I argue that we must be wary of thinking that compassion can be the caring response that many of us believe has a legitimate role in questions of law and social policy. Compassion has the potential to discount, devalue, and ignore people who are in need. I argue that compassion is not enough, and that it also misses the mark. The second purpose of the article is to discuss what might replace compassion as the proper ethical (and in certain contexts, legal) response to someone who is suffering. In this vein, I argue that the work of Emmanuel Levinas, a prominent philosopher of the 20th century, poses compelling challenges to our current thinking about law and social policy, especially in relation to issues of suffering and need, but also in relation to people who are not suffering, but commonly thought to be so, such as people with disabilities. As explained in the article, Levinas's writings provide for an orientation of welcome, alterity, rupture, and responsibility. His "ethics of radical responsibility" offers a compelling interruption to the traditional egocentric foundations of American law and the dim impulse of compassion that sometimes softens it.

A Critical Introduction to Liberalism The Examined Life has a nice online article entitled A Critical Introduction to Liberalism. This courtesy of PoliticalTheory.Info--read it every weekday!

Muller on Scalia in the Michigan Affirmative Action Cases Eric Muller (a guest of the Honorable and Learned Guild of Volokh Bloggers) has a very nice post on a question posed by Scalia in the oral arguments in the University of Michigan affirmative action cases:
    The one exceptional moment, though, came from Justice Scalia. He asked the lawyer for the University of Michigan’s law school a question that I thought was just plain fascinating. The Court’s precedents require that an affirmative action plan be in the service of a state interest that is “compelling” (rather than merely “legitimate” or “important.”) There is precious little law out there on the question of what makes an asserted interest rise to the level of “compelling.” Scalia's thrust went as follows: The state of Michigan has decided that it wants to have not just a law school, but an elite law school—on a par with schools like Harvard, Yale, Stanford, Chicago, Columbia, NYU, Penn, Stanford, Berkeley, and the University of North Carolina. (OK, OK, I included that last one in case my dean is reading.) So, argued Scalia, while a state might have a “compelling” interest in racial diversity at some law school it runs, the State of Michigan does not have a compelling interest in diversity at this particular law school. At this particular law school, Scalia was implying, the only genuinely compelling interest should be its interest in achieving “academic excellence.”
Read Eric's whole post! And be sure to check our Eric's regular blog: Is that Legal?

Monday Workshops Here is the roundup:

Catching Up Department I just caught up with Cass Sunstein's Academic Fads and Fancies. Here is a taste:
    There is also a market for academic ideas, and this market will have significant effects on what academics do. In the market for academic law, law professors are the producers, while consumers include other law professors, students, government officials, judges, and law clerks. The extent of interest from these various groups will of course vary with the material; some academic work is of direct interest only to other academics. The market here is unusual in many ways, above all because no one pays directly for what academics produce. Of course law reviews usually do not compensate people for articles and essays, and the same is true for other journals (in economics and philosophy, for example) in which law professors might publish. Boo publishers will pay for the right to publish books, and professors receive royalties, but for academic books, little money is usually involved, and hence the motivation for writing books is rarely material. On the other hand, indirect compensation, monetary and nonmonetary, is omnipresent. Job opportunities are a direct function of what academics produce, and at many schools, salary is partly a reflection of quality and quantity of publications. Invitations to conferences and the like – dreaded by some, welcomed by most – are also affected by the perceived quality of academic work. It is here, above all, that the market disciplines academic activity.
Read the whole thing! It's 21 pages of fun.

The Two Faces of Bloggers Daniel W. Drezner, blogging from the Midwestern Political Science Association reports on the initially uncomfortable realization that his professional colleagues were reading his blog. Here is a tidbit:
    The biggest part of it, however, was the fear that my colleagues would disapprove of the blog as a bastardization of our profession – and, by extension, a bad reflection on the scholarly side of my cv. As previously noted, some of my blog posts contain half-baked ideas – I certainly hope the same does not hold for my scholarly work. There’s something else, though. Much of this blog consists of my application and translation of arguments made in the political science literature to real-world debates. Inevitably, these translations smooth over the caveats, complexities, and counterarguments that are inherent in any scholarly thesis. [Why not include all of those things in your posts?—ed. No self-respecting editor would ever ask that question. If I did that, each blog post would be 5,000 words long, no one would read it, and I wouldn’t have time to work on anything else.] Most lay readers cannot detect this smoothing process, but my colleagues can, and I fear their wrath.
The pointer courtesy of Jacob Levy of the Volokh Intersteller Blog Alliance.

Libertarianism Without Inequality Mike Otsuka (University College, London) has a new book entitled Libertarianism Without Inequaity. Here is a synopsis:
    Michael Otsuka sets out to vindicate left-libertarianism, a political philosophy which combines stringent rights of control over one's own mind, body and life with egalitarian rights of ownership of the world. Otsuka reclaims the ideas of John Locke from the libertarian right, and shows how his "Second Treatise of Government" provides the theoretical foundations for a left-libertarianism which is both more libertarian and more egalitarian than the Kantian liberal theories of John Rawls and Thomas Nagel. Otsuka's libertarianism is founded on a right of self-ownership. Here he is at one with "right-wing" libertarians, such as Robert Nozick, in endorsing the highly anti-paternalistic and anti-moralistic implications of this right. But he parts company with these libertarians in so far as he argues that such a right is compatible with a fully egalitarian principle of equal opportunity for welfare. In embracing this principle, his own version of left-libertarianism is more strongly egalitarian than others which are currently well known.
And check out Chris Bertram's remarks on Junius.

Sunday, April 06, 2003
Off Topic Department I do my best to resist the temptation to opine on the great issues of the day--or even to link to the opinions of others, but I thought this essay on Democratic Imperialism by Stanley Kurtz was too provactive to ignore. Here is a tidbit:
    Yet the deeper legitimacy of an American imperial adventure in Iraq would rest on a consideration entirely absent from debates over the morality of European colonialism. Both sides in the colonialism debate agree that empires ought to be judged according to whether they help or harm their subject populations. That is because European empires were established aggressively and opportunistically. These empires were defensive only insofar as they were fending off encroachments by the other European powers. (No small concern, by the way.) Yet, in the broadest sense, an American occupation of Iraq would be motivated and justified as self-defense. The dual advent of nuclear proliferation and terrorism has made the creation of an authentic democratic culture in the Arab world essential to the survival of the West.
Courtesy of the Arts & Letters Daily.

Downward Spirals Department Rick Hasen posts email from a reader who argues in favor of the downward spiral thesis. And Rick has more on the question whether delay in special panels decision on the constitutionality of the McCain-Feinbold bill is inexcusable in this post.

New on SSRN this Weekend There are a few new papers on SSRN this weekend. Here are two of relevance to Legal Theory:
    Louis Kaplow (Harvard) posts Transition Policy: A Conceptual Framework. Here is the abstract:
      Legal change, whether through legislation, regulation, or court decision, is a common phenomenon, and virtually all reform creates both gains and losses for those who under the prior regime took actions that would have lasting effects. This article offers a conceptual framework for assessing the desirability of different transition policies, ranging from compensation of losses and taxation of gains, grandfathering of pre-enactment investments, and delayed or partial implementation to complete and immediate implementation or even retroactive application. Emphasis is placed on how transitions and various mitigation strategies affect the incentives of and risk borne by private actors as well as on the behavior of government and how it may be affected by transition policy.
    Simeon Djankov (World Bank), Edward Glaeser (Harvard, Economics), Rafael La Porta (Harvard, Economics), Florencio Lopez de Silanes (Yale, International Institute of Corporate Governance) and Andrei Shleifer (Harvard, Economics) upload The New Comparative Economics. Here is a taste:
      In recent years, comparative economics experienced a revival, with a new focus on comparing capitalist economies. The theme of the new research is that institutions exert a profound influence on economic development. We argue that, to understand capitalist institutions, one needs to understand the basic tradeoff between the costs of disorder and those of dictatorship. We then apply this logic to study the structure of efficient institutions, the consequences of colonial transplantation, and the politics of institutional choice.

Ideology and Law School Faculty Hiring John McGinnis & Matthew Schwartz have an op/ed on the role of ideology in law school faculty hiring. Here are the key paragraphs:
    We have conducted a study that provides evidence of the ideological imbalance at elite law schools -- of which we have heard no plans to rectify. We reviewed all federal campaign contributions over $200 by professors at the top 22 law schools from 1994 to 2000. During that time, close to a quarter of these law professors contributed to campaigns -- a proportion far greater than the average citizen. The proof is stark: as the Anglican church was once described as the Tory Party at prayer, the legal academy today is best seen as the Democratic Party at the lectern. America splits evenly between the GOP and Democrats, but 74% of the professors contribute primarily to Democrats. Only 16% do so to Republicans. These overall percentages substantially understate the effect of the partisan imbalance at most schools. Republican-contributing law professors are very disproportionately concentrated at two schools -- the University of Virginia and Northwestern. In contrast, many other elite schools have few or no politically active Republicans. At Yale, where almost 50% of the faculty donate, almost 95% give predominantly to Democrats. At Michigan itself the ratio is eight to one. Sometimes the amounts donated can be instructive: in the last six years Georgetown law professors have donated approximately $180,000 to the Democratic Party, $2,000 to the GOP and $1,500 to the Green party. Conclusion? Mainstream conservative ideas are no better represented than those on the leftist fringe.
What to make of this? I think the picture is much more complicated than party affiliation. The legal academy is divided along many lines, including the following:
    --Libertarian versus Statist.
    --Law & Econ Centric versus Rights Centric (or ex ante versus ex post or consequentialist versus deontological)
    --Neoformalist versus Neoinstrumentalist
    --Egalitarian (in many contending forms) versus Anti-Egalitarian (in just as many forms)
    --Theoretical versus Antitheoretical
    --Radical versus Liberal
And I could go on, and on, and on. And of course there are confounding variables, including the nature of the pool of applicants, which itself is influenced by the current set of legal academics--who encourage some students and serve as attractive role models for others. There are many groups struggling for control of the law-school hiring process, but the Democratic Party is not one of them.
This is not to say that McGinnis and Schwartz are wrong at a fundamental level. It is a common place observation that law school faculties tend to be more liberal than the population at large, and that the academic left is much more varied and radical than the mainstream political left. Moreover, it is clearly true that the legal academy has been politicized. This should come as no surprise. The judiciary has been politicized, and it would be remarkable if the legal academy did not follow suit. If judges view legal arguments as mere makeweights, the stuff you have to put in before you announce the result you want, then one possible role of the legal academy is makeweight generation. Law professors can churn out the memes that swirl around the space of legal discourse and eventually infest the opinions of courts high and low. Some law professors see hiring as an extension of politics, and to the extent that has resulted in imbalance, the legal academy is surely the worse for it.
An Alternative But there is an alternative. The legal professioriate could go in another direction. We might see ourselves as scholars. We might see truth as the highest virtue of legal scholarship and sophia, theoretical wisdom, as the highest virtue of legal academics. This is surely a live possibility. Politicization of the academy is not dictated by any iron law of history. So the question is: how can we get there from here? How can we move from a politicized legal academy to an academic legal academy? I wish I knew. But here is something I do know. We won't get there by hiring proportionate numbers of ideologues from the left and right. Indeed, that practice might have the perverse result of crowding out truly intellectual candidates from the left and the right altogether. I'm all for balance; I'm all against balanced politicization.

Review of Soper Leslie Green (York) has a review of Philip Soper's The Ethics of Deference: Learning from Law and Morals on Notre Dame Philosophical Reviews. Here is a taste:
    Soper is not the first to focus on the right to coerce instead of the duty to obey. But it is important to see that he is not just resurrecting Kelsen's view that laws are norms authorizing officials to coerce subjects. He adds two very unkelsenian thoughts: that legal norms are meant for the guidance of their subjects and are claimed by law to be correct, and that the law also claims that it is morally entitled to enforce them. Now, judges often disown any claim that they must endorse the rules they apply--they speak as if law has authority independent of its content (that is what motivates the obligation-centered view). But Soper's is not a thesis about what judges say; it is about what we need to impute to the law, regarded impersonally, in order to make overall sense of our practices. He maintains that we can explain law's normativity in terms of its claim to correct content, and that we can explain its exigency in terms of its claim to justified enforcement. The claim to moral authority--and the correlative duty to obey the law for content-independent reasons--thus drops out, which is just as well, because "legal systems are not in the business of making pronouncements on fundamental questions of moral philosophy; they are, rather, in the business simply of making judgments about the norms to be enforced in a society.?
And here is another morsel, from Green's pungent conclusion:
    [W]hich bullet will Soper bite? Will he say that the United States, for most of its history, had no legal system, and that seriously unjust Supreme Court decisions make no law? Or will he say that there is, after all, reasonable doubt whether the racism or heterosexism involves serious moral error? Both strike me as very costly ways of resisting the old idea that the existence of law is one thing, its merit and demerit another.

Saturday, April 05, 2003
Intergenerational Justice Lukas Meyer has posted a wonderful and comprehensive entry to the Stanford Internet Encyclopedia of Philosophy on Interngenerational Justice. And here are some musings of my own on this vast and intricate topic. Link courtesy of Online Papers in Philosophy, a truly valuable and much appreciated resource.

Auerbach on New Top Level Domains Karl Auerbach (ICANN Director and all around genius) has posted regarding the controversy over new generic Top Level Domains. Here is an excerpt from Karl's very articulate remarks, entitled Why Lotteries Are Better Than Auctions When Distributing New TLD Slots:
    [T]he top level domain space be expanded not through the deployment of "names" but rather through the deployment of "slots". The difference is subtle. When I say deployment by "names" I mean that the character string that will be the actual domain name label for that new TLD is made part of the selection process. When I say deployment by "slots" I mean that the character string is utterly irrelevant except to know whether that string is already in use. A "slot" is a right or privilege to have a character string of one's choosing inserted into the DNS root zone (along with various NS records pointing to a suite of name servers.) In other words, I prefer that we deal with "slots" rather than named strings, that we focus on the capabilities of the holder of the slot rather than on the semantics of the string. There are courts a-plenty to handle the real or imagined slights of those who claim to have rights of one kind or another over a given string. If we deal with "names" we are tacitly getting involved in those disputes, if we deal with "slots" we are explicitly saying that we chose not to be a forum for fights over character strings.
Karl also addresses the question whether auctions or lotteries represent a better approach to the allocation of the new slots. Here are his remarks on that issue:
    So, how do we chose who gets to have a slot? There are technical limits to the size of the DNS root zone - there simply isn't enough room to give a name to everyone. An allocation mechanism is necessary. And perhaps there also needs to be a garbage collection mechanism as well to reap dead allocations. The paper sTLD Beauty Contests: An Analysis and Critique of the Proposed Criteria to Be Used in the Selection of New Sponsored TLDs proposes auctions. Auctions are a means that guarantees the prize to the qualified applicant willing to pay the most money. In practical terms this means that the wealthy will inherit the Internet, or at least the DNS top level domains. For many, that is an acceptable outcome. However, I feel that there are social values other than cubic money. And those who live by those other values ought to have a chance to obtain TLD slots. This is why I feel that allocation ought to be by a lottery system. Everybody who buys a "ticket" has a chance. The wealthy can, by buying more tickets, improve their chances to an arbitrary degree. But no matter how many they buy, there is still is a chance that the small guy might win. If we have lotteries for a non-trivial number of slots we can expect that at least a few will be won by the less well healed applicants.
Karl certainly has a point. There may be uses of the root that are in the public interest, but would not result from a pure auction approach. Here are some of the reasons that Karl is right about this:
    --Some public-interest TLDs may be associated with organizations that lack the resources to prevail in an auction.
    --There is a tremendous need for TLDs that serve the non-English speaking, non-European, non-Wealthy regions and peoples of the world. There is a special need for gTLDs using IDN for LDCs.
    --Some gTLDs may provide what economists call "public goods," which by definition cannot effectively be provided by markets.
But a pure lottery system may not be the best way to solve this problems. The FCC experience with spectrum lotteries was dismal. In fact, the lotteries turned into an inefficient form of auctions as a secondary market developed for the auctioned licenses; the lottery resulted in windfall profits for lottery winners and higher transaction costs as the secondary market got the spectrum to its highest and best use.
An Alternative to Pure Lotteries So how can we accomplish both goals. Getting commercial gTLDs to their highest and best economic use, while preserving some of the root for nonprofit, third-world, and/or public good gTLDs. There are a number of possible solutions to this problem. Here are some:
    --Set aside a certain number of slots for a nonprofit gTLD lottery.
    --Use the proceeds from the lotter to subsidize the development and start-up of IDN gTLDs targeted at LDCs. My colleague, Karl Manheim, and I have written a short position paper on this issue, called Equity Enhancing Auctions.
    --Use a streamlined, low-cost "beauty contest" procedure to qualify a certain number of public-good gTLDs for free entry into the root.
No doubt there are other alternatives as well. Lotteries alone won't achieve the twin goals of getting putting the root to its highest and best use while at the same time insuring that the root serves the public interest. A mixed-regime of lotteries and auctions is a promising alternative.
Additional Resources on the Net Here are some links to additional resources on the Net:And by the way . . . Be sure to at Auerbach's First Law of the Internet, a corollorary to which is Cerf's Principle, "a new TLD should be allowed in the root so long as it does no harm."

New on SSRN Two more papers went up late on Friday:
    Andrew Guzman (Berkeley) uploads Trade, Labor, Legitimacy. Here is a taste:
      This paper argues that the merits of the trade-labor debate must be resolved through a political process. The alternative of a resolution through the WTO's Appellate Body (AB) is undesirable for a number of reasons, including the fact that the AB is undemocratic, unaccountable, poorly positioned to understand the trade-offs at stake, and has not been charged with resolving such fundamental policy issues. An attempt to resolve the issue at the AB will lack political legitimacy and ultimately undermine the stability to the WTO itself.
    Michael Sinclair (New York Law School) posts Postmodern Argumentation: Deconstructing the Presidential Age Limitation. Sinclair's article revists the indeterminacy debate, a chapter in contemporary thought that I had thought was long over. Sinclair makes some nice moves in response to D'Amato, Tushnet, and others who bravely tried to defend the indeterminacy thesis.

Fletcher on a War Crimes Tribunal for Iraq Also new on Findlaw, George Fletcher has a very nice post that speculates that the administration plans to create a military tribunal to try war crimes by Iraqi's. Here is a tidbit:
    In the minds of most people, there is a clear difference between terrorists and military personnel who cross the line of permissible warfare and commit war crimes. The American soldiers who committed war crimes at My Lai were not terrorists. They were combatants who went too far on a single occasion. Timothy McVeigh was considered a terrorist, but his blowing up the McMurrah Federal Building was not a war crime. This distinction between war crimes and terrorism is intuitively obvious even though it is hard to pin down in a tight definition.

Vik Amar on Ex Post Facto Laws Vikram Amar's most recent Findlaw column is on ex post facto laws. Here is a taste:
    At its core, the principle is this: Congress and state legislatures may not later make conduct criminal that was perfectly lawful when done. In other words, if conduct is legally innocent at a given time, when undertaken by person, a legislature may not pass, at some later time, a law that says the person's conduct at the prior time now can be the basis for criminal liability. The justifications for this ban are both powerful and simple. Indeed, they are so powerful that ex post facto laws probably would be held implicitly unconstitutional, under several other provisions, even if they were not expressly banned in the Constitution. First, ex post facto laws violate the separation of powers. When a legislature makes an ex post facto law, it knows (or at least is able to know) whom it is transforming into a criminal. But it is the job of the executive branch and the courts - not the legislature - to mete out punishment against individuals. Legislatures, by contrast, are supposed to make rules of general application that have nothing to do with individual personalities. (In this regard, the ban on ex post facto laws is related to the clause banning Bills of Attainder - that is, legislative punishments naming particular individuals.) Second, ex post facto laws may violate First Amendment principles. Legislatures could easily use them to transform political enemies into "criminals" based on previous, then-non-criminal behavior. The "chilling effect" to speech would be severe. And the First Amendment is designed, at its core, to allow dissent from existing government policies to flourish.
Vik's column is excellent, but I wonder whether he has gotten the justifications quite right. Consider each in turn:
    Separation of Powers Does the separation of powers principle really provide a compelling justification for the ban on ex post facto laws? It doesn't look like the kind of principle that is capable of doing the necessary justificatory work. Why not?
      Ex Post Facto is Independent of Institutional Design If this were the deep justification for the ex post facto ban, then the principle would be limited in principle to governments whose institutional design reflects the American system of separation of powers. But this is clearly not the case. Ex post facto laws would be objectionable in a parliamentary system in which the parliament acts as the court of last resort. They would be objectionable even if issued by the judiciary, although one needs a very careful account of how common law courts avoid the retroactivity problem.
      Knowledge and Personality Vik writes that that when an ex post facto law is passed, legislators know (or can know) who the law will affect, but of course this problem is shared by prospective laws as well. In fact, some prospective laws target narrow, identifiable groups, whereas some retrospective laws target large (and difficult to identify groups). Vik also writes that legislatures are supposed to make rules that have nothing to do with individual personalities. I'm not quite sure what Vik means, but it seems obvious that this is really a problem with bills of attainder and not with ex post facto laws--because the identifiability problem is the same as the knowledge problem discussed just above.
    First Amendment Principles Does the freedom of speech really justify the ban on ex post facto laws? Vik's argument focuses on the chilling effect, but this problem isn't unique to ex post facto laws either. Legislatures can use prospective laws to punish speakers. Moreover, the the first amendment provides an independent safeguard against punishing speech by ex post facto laws.
    So What Is the Rationale of the Prohibition on Ex Post Facto Laws Heck if I know! But it seems to me that the best theorizing on this issue goes along the lines suggested by Lon Fuller, and focuses on rule-of-law values. The problem with ex post facto laws is that individuals cannot shape their behavior so as to avoid violations of the law--since the law is not announced in advance. But this is one of the fundamental purposes of law, and it is required if law is to act as a safeguard of individual liberty. Read Vik's fine article!

Friday, April 04, 2003
New on SSRN Several new papers have just gone up on SSRN. Here is the roundup:

Hot Downloads Department Oren Gross's Chaos and Rules is out in the March issue of the Yale Law Journal. Get it while its hot!

Just War Theory--Update Here is an update to my evolving collection of links on just war theory:

Weatherall's Law I have added a link to the sidebar for Weatherall's Law, a very well-done blawg by Kim Weatherall (who does Property Theory, IP, & Internet-related work) from the University of Sidney.

Workshops Today At Florida State, Eric Orts (Penn, Wharton) workshops What Is a Corporation?

Phillips on the Use and Abuse of Culture At Oxford's Research Seminar in Political Theory, Anne Phillips (London School of Economics) presents The Uses and Abuses of Culture: Thinking Through the Feminism/Multiculturalism Debate.

Downward Spirals Department My colleague Rick Hasen has two (make that three) new posts (here and here) and new: here on filibusters of judicial nominees. Courtesy of Rick and his readers, National Review Online has a piece by Byron York on the current state of affairs. Of 19 Bush nominees to the Courts of Appeals, 12 are currently blocked, 2 have been confirmed, and 5 are new nominations on which the Senate has yet to take serious action. Of this situation, York writes:
    Responding to charges of obstruction, Democrats say that it was Republicans who practiced wholesale obstruction of judicial nominees when they controlled the Senate during the last six years of the Clinton administration. But by any measure, Democrats have blocked more Bush appeals-court nominees than were blocked by Republicans in even the worst of the Clinton years, when relations between the parties were poisoned by scandal and impeachment. Of course, at that time, some in the GOP were advocating wholesale obstruction. But party leaders rejected the idea. "This is something Republicans could have done during the Clinton administration, but there were a lot of [Republicans] who wouldn't go that far, who for reasons of comity and the sake of the process refused to do it," says one party aide.
I don't know who is right and who is wrong, but I do know this: left and right have asymmetrical perceptions of this issue. Democrats think that they are merely engaged in tit for tat, responding now to what the Republicans did to Clinton nominees. Republicans believe that Democrats have escalated. Rick argues in his most recent post that we are on a roller coaster, but the evidence he cites is curious. J.J. Gass wrote Rick about the blue slip policies over the years, and among other things, Gass says:
    What is unprecedented, as laid out nicely by Sen. Leahy in his statement on the Kuhl hearing, is a committee chair [Senator Hatch] changing his blue-slip policy.
Once again, we have a charge of unprecedented political behavior from one side against the other. And this is exactly the pattern to which I have been pointing. It doesn't really matter whether Hatch's switch is unprecedented. What matters is that Democrats think it is an unprecedented move by Republicans, which constitutes an escalation of the conflict. This is what asymmetrical perceptions are all about.
Death Spirals Asymmetrical perceptions are dangerous, because they can easilty lead to a downward spiral of politicization. If both sides believe that the other side is escalating first, then each side feels justified in taking even extreme measures, which in turn reinforce the likelihood that politicized judges will be selected and that sitting judges will become more politicized. Where does this lead? Here is my post on the end result of a death spiral.
And Some More on Nominations from the Blogosphere Check out Sam Heldman's posts:

Democracy in the Digital Age at Yale Yale Law School's Information Society Project hosts Democracy in a Digital Age today (April 4) through Sunday (April 6). The lineup is exciting and includes the following sessions:
    How do People Deliberate: Deliberative Discourse and the Internet
      Moderator, Cynthia Farrar, Yale University Panelists James Fishkin, University of Texas School of Law Anthony Wilhelm, Benton Foundation Herbert Burkert, University of St. Gallen
    Designing for Democracy
      Moderator, Richard Sherwin, New York Law School Panelists Michael Froomkin, University of Miami School of Law William Mitchell, Massachusetts Institute of Technology Natalie Jeremijenko, Yale University
    Keynote Address
      Benjamin Barber
    How Political Decisions are Made: Citizen Participation and Decision-Making
      Moderator, Peter ShanePanelists Cary Coglianese, Kennedy School of Government, Harvard University Beth Noveck, New York Law School Henry H. Perritt, Jr., Illinois Institute of Technology
    Creating Public Discourse: Cultural Transmission and the Creation of Democratic Discourse
      Moderator, Caio Mario da Silva Pereira Neto, Yale Law School Panelists: Jack Balkin, Yale Law School Niva Elkin-Koren, University of Haifa Shanto Iyengar, Stanford University
    How Groups Form: Community, Organization and the Internet
      Moderator, Robert Heverly, Yale Law School Panelists Brook Manville, SABA Software Howard Rheingold, Author John Gastil, University of Washington
    Creating Alternative Discourse: Protest and E-Resistance
      Moderator, Nimrod Kozlovski, Yale Law School Panelists Andrew Herman, College of the Holy Cross Douglas Thomas, University of Southern California Andrew Bichlbaum / Michael Bonanno, The Yes Men

Thursday, April 03, 2003
The Two Justice Harlans Greg Goelzhauser has an excellent post (or here if you hit the archive bug) on the two Justice Harlans, Plessy and Poe v. Ullman, responding in part to another fine post by Tung Yin.

New Papers--Get 'em while their hot! Here are some new papers, just up on SSRN:
    Maarten Schinkel (Maastricht, Economics), Jan Tuinstra (Amsterdam, Quantitative Economics) and Jakob Rueggeberg (Maastricht, Economics) upload Illinois Walls. Illinois? Walls? What is this about? Here is the answer:
      In its landmark ruling in Illinois Brick Co. v. Illinois, the U.S. Supreme Court restricted the right to sue for private damages from violations of section 4 of the Clayton Act to direct purchasers. Despite the fact that typically antitrust injury is, at least in part, passed on to firms lower in the production chain and ultimately to consumers, Illinois Brick has since stood as a binding legal constraint. This paper considers the strategic use that upstream firms can make of Illinois Brick to shield themselves from private damages claims. In a repeated game setting, we find that Illinois Brick may facilitate upstream firms to engage tacitly in collusive arrangements with concealed side-payments to discourage their direct purchasers from filing suit. An example is given of such an 'Illinois Wall', in which downstream firms are given part of the upstream cartel profits through a symmetric rationing of their inputs at low prices. Interestingly enough, the Illinois Wall is found to be particularly stable when competition is relatively strong at both the up- and the downstream level.
    David Driesen (Syracuse) posts What's Property Got to Do With It?. Well, what does property have to do with it? And what is it?
      This essay reviews Daniel Cole's "Pollution & Property," a recent book on property rights regimes for pollution control. It questions the utility of property rights typologies as a means of understanding pollution control regimes. The review provides a detailed analysis of the shift of rights that occurs in going from a traditional regulatory program to an emissions trading program. It finds that the shift does not create a fundamentally different property regime and explains precisely what changes. This analysis also explains the meaning of calls to perfect property rights in this context. The review concludes that Professor Cole's book does a good job of refuting free market environmentalists' case for "private property" solutions to environmental problems, in spite of the awkwardness of a property rights approach to pollution control problems.
    Gregory Alexander (Cornell) has posted Property As a Fundamental Right? The German Example, forthcoming in the Cornell Law Review. So, is it fundamental?
      This article examines an apparent paradox in comparative constitutional law. Property rights are not treated as a fundamental right in American constitutional law; they are, however, under the Basic Law (i.e., constitution) of Germany, a social-welfare state that otherwise gives less weight to property. The article uses this apparent paradox as a vehicle for considering the different reasons why constitutions protect property. It explains the difference between the German and American constitutional treatment of property on the basis of the quite different approaches taken in the two systems to the purposes of constitutional protection of property.

Mind Blowing I usually shy away from such deep stuff as the mind-body problem, but I was much taken with Tom Nagel's essay The Psychophysical Nexus. Here is the passage where he introduces his speculative hypothesis:
    Let me at last, after this very long windup, offer an extravagant conjecture. I suggest that we take the macroscopic relation between mental processes and their behavioral manifestations, which I have said is conceptual but not necessary, as a rough model for a deeper psychophysical connection that is necessary – pushing embodiment inward, so to speak. The gross and manifest relations between consciousness and behavior would thus be reinterpreted as a rough indicator of something much tighter in the interior of the brain, that can be discovered only by scientific inference, and that explains the manifest relations in virtue of its usual links to the rest of the body. Perhaps, for example, the reason for the relation between pain and avoidance at the level of the organism is that at a deeper physiological level, the state that generates the appropriate observable behavior in an intact organism by the mediation of nerves, muscles, and tendons is an essentially subjective state of the brain with an unmediated, noncontingent “behavioral expression” of its own. It would be a single state that is necessarily both physical and mental, not a mere conjunction of the two.

Anarchy & Chaos Randy Barnett (Boston University) lectures today at the University of Colorado at Boulder. His lecture is entitled: "Anarchy is Not Chaos." Particulars: 7:00 p.m., Hale 270. Barnett is a preeminent libertarian legal theorist, and his book, The Structure of Liberty is a contemporary classic. This should be very interesting. The web page for the talk is here.

Thursday is Workshop Day Here is the roundup from hither and yon:
    At the University of Michigan’s fine Law and Economics series, Jon Hanson (Harvard) presents , The Situation: An Introduction to the Situational Character, Critical Realsim, Power Economics, and Deep Capture.
    At George Mason, Robert Scharff does an internal workshop on The Effect of Changes in the Voting Population on Optimal Candidate Strategy: The Case of Cigarette Smoking.
    At Boston University, the amazing Suzanna Sherry (Vanderbilt) delivers How I Learned to Stop Worrying And Love Judicial Review. What Kubrick fan could resist that title?
    At Princeton’s political philosophy series, Patrick Deneen (Princeton) offers up Democratic Faith. Here is a morsel:
      The language of democratic faith – expressing confidence in democratic forms, a conviction of its universality, its hopes for a progressive future and core belief in the universal capacity for individual and mutual self-governance – remains alive and robust into the 21st century, if its invocation by President Bush, and its casual reception by an otherwise cynical public, are any indication. If the democratic faithful have ceased to note the significance of the phrase, it is altogether plausible that it is a deafness that is because of, and not in spite of, an unquestioned adherence to the democratic faith.

Looks like a good day at workshops across the country.

Coleman on the Grounds of Welfare Jules Coleman's (Yale, law and philosophy) continues his visit to Law & Philosophy Program at the University of Texas continues today, with his presentation of "The Grounds of Welfare" to Larry Sager's Colloqium in Legal and Constitutional Theory. Brian Leiter's series is surely the envy of legal philosophers everywhere.

Classics Department Courtesy of Political Theory's sidebar, this link to Harry Frankfurt's wonderful essay, On Bullshit. Here is how it begins:
    One of the most salient features of our culture is that there is so much bullshit. Everyone knows this. Each of us contributes his share. But we tend to take the situation for granted. Most people are rather confident of their ability to recognize bullshit and to avoid being taken in by it. So the phenomenon has not aroused much deliberate concern, or attracted much sustained inquiry. In consequence, we have no clear understanding of what bullshit is, why there is so much of it, or what functions it serves. And we lack a conscientiously developed appreciation of what it means to us. In other words, we have no theory. I propose to begin the development of a theoretical understanding of bullshit, mainly by providing some tentative and exploratory philosophical analysis. I shall not consider the rhetorical uses and misuses of bullshit. My aim is simply to give a rough account of what bullshit is and how it differs from what it is not, or (putting it somewhat differently) to articulate, more or less sketchily, the structure of its concept. Any suggestion about what conditions are logically both necessary and sufficient for the constitution of bullshit is bound to be somewhat arbitrary. For one thing, the expression bullshit is often employed quite loosely—simply as a generic term of abuse, with no very specific literal meaning. For another, the phenomenon itself is so vast and amorphous that no crisp and perspicuous analysis of its concept can avoid being procrustean. Nonetheless it should be possible to say something helpful, even though it is not likely to be decisive. Even the most basic and preliminary questions about bullshit remain, after all, not only unanswered but unasked.
As I finish this entry, I have a very big smile.

New from Oxford University Press Here are the latest new releases from Oxford:

Wednesday, April 02, 2003
Review of Posner's Law, Pragmatism, and Democracy Courtesy of the really super Greg Goelzhauser's blog and PoliticalTheory.Info, the Washington Post has a review of Richard Posner's new book, Law, Pragmatism, and Democracy. Here is a tiny tidbit:
    "Everyday pragmatism" has implications for democracy. Posner defines a democratic system not as "government of the people, by the people, for the people" but as "competition among self-interested politicians, constituting a ruling class . . . who if they don't perform to expectations are fired by the people at the end of a short fixed or limited term of office." This theory of politics as consumer marketing was first enunciated by Joseph Schumpeter, the 20th-century Austrian economist and Harvard professor. Posner One's refinement of Schumpeter's theory has much explanatory power. But Posner Two also claims that things work better when the people don't bother their heads too much about issues. He contrasts his view favorably with the theory known in political-theory circles as "deliberative democracy." Deliberative democrats insist that, to be legitimate, political decisions must reflect honest argument about a concept of the public interest. Posner Two unfairly dismisses this vision as "modeling democracy on a faculty workshop."

Difference Principle Redux Department Tom Runnacles (here [link fixed] is his blog) has (via email) responded to my post on Cohen's critique of Rawls re the limitation of the two principles to the basic structure. This is just the latest in a series of posts on this topic. Before I get to Tom's very intelligent response to my post, here is an updated guide to the Rawls/Cohen blogospheric emanantion:And here is is Tom's contribution:
    Cohen starts with the suggestion that Rawls' best argument for the DP is the one that runs from the morally arbitrary character of the differences in endowment that allow people to command higher rewards in the market. Notwithstanding this moral arbitrariness, Rawls suggest that it would be irrational for the worst-off to veto inequalities that redound to their benefit; hence the case for incentives. Now, at this point Cohen and Rawls are in agreement; Cohen doesn't disagree with the idea that incentives may be both justified and necessary to compensate people for work that is more burdensome or stressful. So it's a mistake to say, as some of his critics do, that Cohen thinks there's something wrong with the difference principle itself. Rather, Cohen's disagreement is with a particular application of the difference principle which takes standard market motivations and behaviour as givens. He points out that, as Rawlsian citizens, the well-endowed are pictured as accepting the fundamental argument from the moral arbitrariness of social and natural endowments for Democratic Equality, that is, as rejecting the idea that they have some fundamental moral claim of desert upon whatever they can get as a result of exploiting their powers. Now if they do accept the argument from moral arbitrariness, Cohen says, these well-endowed people cannot consistently use their bargaining power to grab disproportionate shares of the additional social product their talents permit them to create; they cannot consistently threaten the less well-endowed that they will in effect down tools unless they get to keep more of the social product than is required as pure compensation for working longer hours/under greater stress/etc. The fact that they, as the talented, are rare and therefore have market power, is not a legitimate ground for argument, and Cohen's claim is that a good Rawlsian citizen could not consistently make it. The implication of this is that Rawls is wrong to say that justice can be confined to the basic structure alone; since Rawlsian principles are internalised by those who live by them, in the sense that they affirm the leading arguments for those principles, they must also affect the way in which these citizens behave in the market place, and the arguments that they make when pursuing their lives. Hence Cohen's insistence on the importance of a certain kind of ethos as a characteristic of a Rawlsian society, properly understood. Now, I don't see that any of that entails that a Rawlsian citizen has an obligation to 'adopt the welfare... of the least advantaged as their own goal in life'. It just entails that such a citizen cannot seek to gouge the least advantaged by bargaining in a fashion which is inconsistent with principles of justice which by hypothesis he accepts. There's a clear difference between thinking that one has an obligation not to exploit the fact of one's endowment to get a bigger share of the social product by blackmailing the less well-off with the threat to down tools, and thinking that one has an obligation to the less well-off that should guide all one's actions. The former clearly does not entail the latter. Again, there's nothing in the 'no gouging' principle that says you have an obligation to pick the occupation in which you will be most productive. You have no claim of desert upon your full marginal product as determined by the market; and you cannot threaten not to work in order to get a bigger share of what you can produce; but neither of these principles entails that you are obliged maximally to serve the good of others, irrespective of your wishes. As to your point about reciprocity, it's true that there is a thread of reciprocity that runs through 'A Theory of Justice', but the problem is that it wrecks the case for the DP. 'All must benefit', you say - but benefit relative to what baseline? Brian Barry put the case brilliantly in 'Justice as Impartiality' some while ago: Rawls runs into real problems if we imagine a coalition composed of (say) all but the least-endowed 5% of the population threatening to secede, arguing that the bottom 5% contribute far less to the top 95% than they receive in return, and that this violates the requirement of reciprocity. One might think that the obligations of justice apply with particular importance to the most vulnerable, not that this group are (as a matter of definition) excluded from their scope. Barry argues, convincingly to my mind, that the reciprocity theme in 'A Theory of Justice' causes nothing but trouble for Rawls, and that the best reconstruction of a Rawlsian view would excise it. To summarise: my view is that your points don't touch Cohen's actual position, and that his critique of certain uses of the difference principles neither rests on a misunderstanding of Rawls nor has absurd implications.
I am trying to finish a big, fat, law review article on the implications of Internet architecture for Internet regulation by egads! Monday! So I am writing Tom a promissory note for a reply. New: Tom has posted on his blog here.

Gardner on the Legality of Law John Gardner has a wonderful paper entitled The Legality of Law brought to my attention via Online Papers in Philosphy and Gulliver's Travels. Here is a taste of Gardner's shining prose:
    This is not the place for a study or defence of the ideal of the rule of law. It is, however, the place to observe that the existence of this ideal [Gardner is referring to the ideal of the rule of law] makes fully intelligible the superficially oxymoronic proposition that some laws are illegal. They are of course laws – artefacts of the genre law - and in that respect they are necessarily legal. But they may still fail to live up to the moral ideal of legality that artefacts of that genre should by their nature live up to. Sensitive as ever to ambiguity, Hart brought this point out very vividly in a neglected passage towards the end of The Concept of Law. He claimed that there are two concepts of law, captured in many European languages by distinct words: ‘lex’, ‘Gesetz’, ‘loi’ and ‘legge’ (capturing the genre that he had been trying to explain in the rest of the book), and ‘ius’, ‘Recht’, ‘droit’, ‘diritto’ (capturing a ‘narrower’ genre, the genre of law that lives up to whatever moral ideal law should live up to). One may doubt whether Hart’s foreign-language lexicography is up to scratch here. But as he himself says, that is not the point. The point is that, however the distinction is marked in language, there is law and then there is legal law.

Online Papers in Philosophy I've added a link to the sidebar for the really terrifice resource, Online Papers in Philosophy. I was alerted to this by the excellent Gulliver's Travels.

New Today on SSRN Here are the most recent papers, fresh from this mornings uploads:
    Alma Cohen (National Bureau of Economic Research) posts Asymmetric Information and Learning: Evidence from the Automobile Insurance Market.
    Keith Hylton (Bosont University) uploads A Framework for Reparations Claims. Hylton's paper compares different reparations claims in terms of their goals and viability as tort suits, and contrasts two approaches observed in the claims: a "doing justice" model, which involves seeking compensation in important cases of uncorrected or uncompensated injustice; and a "social welfare" model that seeks to change the distribution of wealth. Claims under the first category are far more consistent with tort doctrine and likely to meet their goals than the social welfare-based claims.

Statutory Construction Zone I've added a link to the sidebar for the Statutory Construction Zone. The link is courtesy of Nate Oman of the most excellent A Good Oman.

Downward Spirals Department My colleague Rick Hasen posts on a change in the Senate Judiciary Committee's blue slip procedure. The issue arose in connection with Carolyn Kuhl's nomination to the Ninth Circuit. Here is an excerpt from the L.A. Times story:
    Sen. Barbara Boxer (D-Calif.), who is not a Judiciary Committee member, has withheld her "blue slip", a consent form that committee Chairman Orrin G. Hatch (R-Utah) has required in the past from both home-state senators for judicial hearings to proceed. "This is the first time that this chairman will ever have convened a hearing for a judicial nominee who did not have two positive blue slips returned to the committee," said Sen. Patrick J. Leahy, ranking Democrat from Vermont. "Lest some observers wrongly conclude that this sudden and orchestrated series of rules changes is 'politics as usual,' it most certainly is not."
Rick and I have engaged in an ongoing debate over the question whether the judicial selection process is engaged in a downward spiral of politicization (my position) or a roller-coaster ride (Rick's take on it). Here are some of our recent posts:The latest development lends some support to my thesis that Democrats and Republicans have asymmetrical perceptions of the conflict. Each side tends to view its own moves as tit for tat, an equivalent and measured response to moves by the other side. At the same time, these same retaliatory moves tend to be viewed by the opposing party as escalatory, justifying further escalation. Combined with a short run perspective that focuses on immediate political gains and ignores the terrible long-run consequences of politicization, this is a recipe for a downward spiral.

Khanna's Theory of Corporate Crime Legislation Vikramaditya Khanna has posted A Political Theory of Corporate Crime Legislation on SSRN. Here is a crunch morsel from the abstract:
    [M]y analysis suggests that corporate criminal liability – the imposition of criminal sanctions on the corporate entity – serves little deterrent or expressive function above that offered by corporate civil liability. This suggests, on first glance, weak support for the growth of corporate criminal liability. However, this is only on first glance. Indeed, on closer inspection, it appears that corporate criminal liability imposes relatively low costs on corporate interests, may help to avoid legislative and judicial responses that are more harmful to their interests, and may at times help to deflect criminal liability away from managers and executives and on to corporations. These effects may often benefit corporate interests and weakens their opposition to corporate crime legislation. In light of this, the growth of corporate crime legislation becomes more understandable. This not only provides some explanations for the impressive growth of corporate criminal liability, but also leads to some interesting normative conclusions. In particular, it leads to the counter-intuitive result that if one starts with the view that there is under-deterrence of corporate wrongdoing then one would probably prefer to reduce corporate criminal liability and focus more on corporate civil liability and managerial liability.
Get it while its hot.

Wolff on Redistribution Jo Wolff (University of London, University College) has a very fine position paper entitled The Message of Redistribution: Disadvantage, public policy and the human good from Catalyst. Stuart White has a reply. Links courtesy of the always valuable and intelligent Junius.

Catching Up Department I somehow missed Daryl Levison's (NYU and Virginia) Collective Sanctions, up on SSRN last week. Here is a taste from the abstract:
    When and why do legal and other regulatory regimes aim sanctions at groups rather than individuals? . . . Legal systems routinely impose collective liability on shareholders for the torts and crimes of corporations, on co-conspirators for one another's criminal acts, and on polluters for the costs of cleaning up toxic waste. Governments inflict international sanctions on the populations of other states in response to the policies of their leaders and on innocent civilians in retaliation for acts of terrorism or resistance. Voters collectively sanction politicians by voting against political parties. Economic arrangements such as insurance, partnerships, and employee stock ownership plans focus economic rewards and punishments on groups instead of individuals. Parents sometimes punish all their children when one misbehaves, and communities tar entire families with reputational sanctions for the failings of individual members. . . . [T]his Article attempts to make sense of these and other regimes of collective sanctions. Group members might be punished not because they are deemed collectively responsible for wrongdoing but simply because they are in an advantageous position to identify, monitor, and control responsible individuals - and can be motivated by the threat of sanctions to do so. On this understanding, collective sanctions can be conceived as a strategy of "delegated deterrence," inasmuch as responsibility for deterring individual wrongdoers is effectively delegated by an external sanctioner to a group that is well-situated to implement an efficient regulatory regimen. The Article develops a model of collective sanctions that combines this basic instrumental insight of delegated deterrence with economic and sociological theories of collective action and group organization. It then applies the model to a number of legal, economic, political, and social regimes of collective sanctions, ranging from group lending by microcredit banks in developing countries to the assimilation of minority groups in response to discrimination.
Sounds like a winner..

Coleman at Texas Jules Coleman (legal philosopher extraordinaire) is visiting Brian Leiter's power-packed Law & Philosophy Program at the University of Texas through Saturday. Tomorrow (April 3) he will present "The Grounds of Welfare" to Larry Sager's Colloqium in Legal and Constitutional Theory. On Friday, April 4, Coleman will deliver the 2nd Annual Leon Green '15 Lecture in Jurisprudence on the topic "The Point of Tort Theory."

Tuesday, April 01, 2003
University of Michigan Affirmative Action Cases The United States Supreme Court hears oral argument today in the two University of Michigan affirmative actions cases. Here are some resources and links from the Legal Theory perspective and others:
    Stanford Encyclopedia of Philosophy entry on Affirmative Action. Highly recommended as a starting point for theoretical analysis.
    Ethics Updates has a nice resource page on Race, Ethnicity and Multiculturalism--a good starting point for philosophical perspectives on the general issues.
    New: Dahlia Lithwick comments on Slate.
    Linda Greenhouse of the NY Times on the Oral Argument.
    New: Transcript in Gratz. Transcript in Grutter. Audio is available here.
    BBC, Should Universities Ban Affirmative Action.
    Washington Post, Affirmative Action Under Attack.
    Robert Allen, Rawlsian Affirmative Action: Compensatory Justice as Seen from the Original Position
    SCOTUS Blog has a report.
    Howard Bashman reports from How Appealing: here and here and New: here.
    University of Michican's resource page.
    President Bush's remarks on the cases.
    New: A post from the Volokh Conspiracy on viewpoint diversity & the cases.
    Bibliography from the Stanford Encyclopedia entry:
      Bolick, Clint. The Affirmative Action Fraud: Can We Restore the American Civil Rights Vision? Washington, D.C.: Cato Institute, 1996. Cahn, Steven M. (ed). Affirmative Action and the University: A Philosophical Inquiry. Philadelphia: Temple University Press, 1993. Carter, Stephen L. Reflections of an Affirmative Action Baby. New York: Basic Books, 1991. Cohen, Marshall et al. (eds). Equality and Preferential Treatment. Princeton, New Jersey: Princeton University Press, 1977. [Contains the early articles in Philosophy & Public Affairs.] Dworkin, Ronald. A Matter of Principle. Cambridge, Massachusetts: Harvard University Press, 1985. Eastland, Terry. Ending Affirmative Action: The Case for Colorblind Justice. New York: Basic Books, 1996. Edley, Christopher, Jr. Not All Black and White: Affirmative Action and American Values. New York: Hill and Wang, 1996. Edwards, John. When Race Counts: The Morality of Racial Preference in Britain and America. London: Routledge, 1995. Fullinwider, Robert K. The Reverse Discrimination Controversy: A Moral and Legal Analysis. Totowa, New Jersey: Rowman and Littlefield, 1980. Glazer, Nathan. Affirmative Discrimination: Ethnic Inequality and Public Policy. New York: Basic Books, 1975. Goldman, Alan H. Justice and Reverse Discrimination. Princeton, New Jersey: Princeton University Press, 1979. Greenawalt, Kent. Discrimination and Reverse Discrimination. New York: Alfred A. Knopf, 1983. Gutmann, Amy and Thompson, Dennis. Democracy and Disagreement. Cambridge, Massachusetts: Harvard University Press, 1996. Kahlenberg, Richard D. The Remedy: Class, Race, and Affirmative Action. New York: Basic Books, 1996. Lawrence, Charles R. III and Matsuda, Mari J. We Won't Go Back: Making the Case for Affirmative Action. Boston: Hougton Mifflin Company, 1997. Paul, Ellen Frankel et al. (eds). Reassessing Civil Rights. Oxford: Blackwell Publishers, 1991. Rosenfeld, Michel. Affirmative Action and Justice: A Philosophical and Constitutional Inquiry. New Haven, Connecticut: Yale University Press, 1991. Symposium: Bakke -- Civil Rights Perspectives. Harvard Civil Rights-Civil Liberties Law Review, 14 (Spring 1979). Symposium: Race-Based Remedies. California Law Review, 84 (July 1996). Symposium: The Meanings of Merit -- Affirmative Action and the California Civil Rights Initiative. Hastings Constitutional Law Quarterly, 23 (Summer 1996). Valls, Andrew. "The Libertarian Case for Affirmative Action," Social Theory and Practice, 25 (Summer 1999), 299-323. Young, Iris Marion. Justice and the Politics of Difference. Princeton, New Jersey: Princeton University Press, 1990. Waldron, Jeremy. "Humility and the Curse of Injustice," in Robert Post and Michael Rogin, eds., Race and Representation: Affirmative Action (New York: Zone Books, 1998), 385-389.

New on SSRN Here are more new papers on SSRN:
    Alfred Yen (Boston College) uploads What Federal Gun Control Can Teach Us About the DMCA's Anti-trafficking Provisions.
    Molly Holman (Christie, Parker & Hale) & Stephen Munzer (UCLA) post Intellectual Property Rights in Genes and Gene Fragments: A Registration Solution for Expressed Sequence Tags, forthcoming in the Iowa Law Review.
    Andrew Robertson and Michael Bryan (both Melbourne) offer On the Distinction between Contract and Tort.
    Ruth Buchanan (University of British Columbia) and Sundhya Pahuja (Melbourne) give us Collaboration, Complicity and Cosmopolitanism, forthcoming in the Nordic Journal of International Law. Here is a taste from the abstract:
      In this article, the authors use their experience of a collaboration as a vehicle for thinking critically about the uneasy relationship between the practices and products of internationally oriented legal scholars situated in the North. They use tools drawn from feminist theory to tease out in particular, some of the perils in the turn to cosmopolitanism as a response to globalisation, and explore the way in which this mirrors a cosmopolitan urge both embedded in international legal discourse and at play in the self-constitution of the international lawyer (including themselves). They then draw on feminist and other critical theories to ask whether a conceptual reconfiguration of a "critical cosmopolitanism" can offer a useful alternative to the old view. They are remain wary about whether any reconfigurations with a "global" scale can overcome the problems which inhere in purportedly transformative western scholarship generally, and so conclude somewhat circumspectly, emphasising the need to frame their approach reflexively and to focus on changes they could make to their everyday practices of teaching and research to reduce the risk of complicity with the unacknowledged parochialism of cosmopolitanism.

Difference Principle Redux Department My post on the Gerry Cohen's critique of Rawls's difference principle (and G.A. Cohen's critique thereof) seems to have generated a minor disturbance in the blogosphere. In a nutshell, we might describe the issue between Rawls and Cohen as follows:
    Rawls's theory, justice as fairness, has two principles of justice. The first principle requires a fully adequate scheme of equal basic liberties. The second principle requires social and economic differences to be arranged so as to benefit the least well off. Both principles apply to the basic structure, e.g. the constitution essentials and the basic form of economic organization. Cohen argues that there is no principled reason for Rawls to limit the difference principle to the basic structure, and in particular, the citizens who affirm the two principles should not demand incentives to produce more social surplus. My post replied to Cohen.
Here is a guide to the posts:More on this later in the week!

Coase At the University of Chicago today, the Coase Lecture is presented by Ronald H. Coase, Clifton R. Muser Professor Emeritus, University of Chicago Law School. Professor Coase's topic for the Coase lecture is, well, Coase. The title, however, is The Present and Future of Law and Economics. I wish that I were in Chicago today!

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