Legal Theory Blog

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

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Thursday, July 31, 2003
Bertram on Cohen Chris Bertram has an impressive post on Gerald Cohen's Facts and Principles (download requires subscription). Chris makes this observation about the main point of Cohen's piece:
    The principal target of Cohen’s article is Rawlsian constructivism. This is because Rawls believes that the way the world is (the facts) enter into the construction of the fundamental principles of justice (via, for instance, the general facts made available to the parties in Rawls’s original position). Cohen believes that Rawls is not altogether consistent here, in any case, since the design of Rawls’s constructivist procedure rests on general claims (that persons are to be considered as free and equal) that are either themselves fact-independent or rest on further principles that are. So, for Cohen at least, Rawls’s putatively fundamental principles of justice aren’t fundamental at all, but merely derivative or regulatory principles that actually derive from deeper fact-independent principles.
And Bertram asks whether Cohen hits the mark:
    Is Cohen’s argument damaging to Rawlsian constructivism? If Cohen is correct, Rawlsians might reasonably, though concessively, reply. They might argue that it is true that if we look at what the logical structure of people’s ethical beliefs ought to be, then fact-independent principles are at the bottom. It isn’t the case then, that what justifies and constitutes our most fundamental commitments is that they derive from a constructivist procedure. But (1), epistemically, such a procedure is the best method for getting at what those commitments are and (2) given “the facts”, the regulatory principles which we are practically most interested in are best seen as the product of a constructivist apparatus. Too concessive? I think most Rawlsians could live with it.
All my books are boxed up, so I find myself frustrated. However, I think there is a problem with Cohen's argument if considered as a critique of Rawls's political constructivism. In particular, the move the Bertram describes as "concessive" seems to me entirely consistent with political constructivism, although Cohen's critique might pose a problem for Kantian constructivism. The reason for this is obvious, and I am not sure how Cohen could have missed it. Rawls is quite clear that the deep foundations for the premises of political liberalism are not supplied by political liberalism itself, but must instead by supplied by the comprehensive religious and philosophical views of citizens. Thus, we take the notion of citizens as free and equal from the public political culture. From the point of view of political liberalism, this is sufficient. I'm quite sure that Rawls would want to say that political liberalism does not need to take a stand on the question whether the ultimate foundations of justice as fairness are (or are not) fact sensitive principles. When Cohen construes Rawls as holding otherwise, he quotes exclusively from A Theory of Justice and from Rawls's essay on Kantian constructivism. Indeed, Cohen never even mentions Rawls's discussion of "political constructivism" from Political Liberalism. Of course, Cohen may not have intended his argument to be directed at Rawls's final position, and the puzzling omission that I note in no way detracts from the interest of Cohen's paper. I've gone on too long, so let me simply say: read Bertram's post and Cohen's paper!
Update: Another impressive post on Crooked Timber by Jon Mandle can be found here. Mandle argues in a different way for the conclusion that Rawls is not Cohen's real target.

Simons on the Precautionary Principle Kenneth Simons, the distinguished tort scholar from Boston University, writes with some comments about the precautionary principle. For my post, go here. Ken's comments are an excerpt (which was only very slightly revised in the published article) from Kenneth W. Simons, Negligence, 16 Social Philosophy & Policy 52 (1999):
    Is it possible to develop a clear, nonconsequentialist formula for negligence, one that accommodates competing values but avoids the problems of a pure (or even a distribution-sensitive) maximizing approach? Consider two efforts--a “disproportion” test, and a “freedom v. security” balancing test. I will conclude that these efforts, while promising, are inadequate. The first is too ill-defined, while the second is too reductionist to capture the full array of values that should be balanced. a. Disproportion test. One possibility is a disproportion test. On this approach, if an injurer’s risky conduct would expose potential victims to expected risks of P x L and could be avoided only at marginal cost B, then, in order for the injurer to be permitted to impose the risk, P x L must not only be greater than B, it must be much (or disproportionately) greater. This could also be called a thumb on the scale test: in weighing the potential victim’s interest in personal security against the potential injurer’s interest in freedom of activity to impose risks, we should place a (heavy) thumb on the scale, giving special weight to the interest in personal security. These tests sound plausible and appealing, but, unless substantially recast, they provide a useless criterion. If we have identified the appropriate factors to balance, and if the method of balancing is also justifiable, then these tests say the following: one should not take a risk (as opposed to taking a precaution against the risk) simply because the advantages of taking the risk are greater than the disadvantages. Rather, one should take such a risk only if the advantages of doing so are much greater than the disadvantages (normally, only if the benefits to the injurer are much greater than the expected injuries to victims, discounted according to their probability). This approach is either indeterminate or irrational. For unless one has a common metric or other justifiable method for measuring the competing interests or values, how does one know whether the interest in physical security and safety is “just” weightier than the interest in freedom of activity, as opposed to “much” weightier, so as to apply the “disproportion” or “much weightier” criterion? On the other hand, if one does have a common metric for measuring the competing interests, or if one does have some other justifiable method of balancing, why shouldn’t the actor simply choose the alternative that furthers the “weightier” value, even if that value is only weightier by a peppercorn? Let me be more specific. Is the interest in avoiding the risk of having one’s arm broken “usually” greater than the interest in driving 10 miles per hour faster, or “usually” greater than the interest in avoiding the expense of a softer bumper? These questions are meaningless unless we specify more clearly both the degree of risk of a broken arm, and the disadvantages of taking a precaution. Yet once we specify these factors, and adopt a justifiable method of balancing, shouldn’t we indeed balance “at the margin”? That is, shouldn’t we examine whether the advantages of any particular action (even a narrowly defined action) exceed the disadvantages? I suspect that the worry about weighing “at the margin” is a legitimate concern about turning moral analysis into a bloodless form of calculation. What one should do should not depend on plugging numbers into a formula. And we should often be suspicious of methodologies that purport to balance along a “razor’s edge,” such that trivial factual differences in the weight of a given factor render an otherwise permissible action impermissible (or vice versa). These concerns are well-founded if the most justifiable method of balancing requires a strong form of commensurability, i.e., translation of all values into a single metric such as money or wealth. But weaker forms of commensurability are more plausible for most moral decisions, including decisions about risky alternatives. For example, consider the question whether a doctor should disclose to a patient all adverse risks of medical treatment of which the doctor is aware. A range of possible rules is possible, from a rule of no disclosure (if the doctor believes that nondisclosure of a particular risk is in the best interest of the patient), to a rule of relatively full disclosure (of all risks that most patients would consider material), to a rule of disclosure tailored to the second-order preference of patients (i.e., disclosure of whatever scope of risks the patient herself prefers to be disclosed). These different rules embody different conceptions of the proper scope of patient autonomy and physician discretion in decisionmaking about medical risks. Whether a given risk should be disclosed in a given case is much more likely to depend on these subtle value judgments than on the precise magnitude of the risk or on the precise financial or temporal burden to the doctor. At the same time, however, even this more qualitative form of balancing will be sensitive to facts. Accordingly, close questions will sometimes arise about whether, for example, a particular risk is one that most patients would consider material. If we conclude that a doctor should disclose a 1% risk that hernia surgery will result in permanent numbness at the location of the surgery, but we find this a very close question, then the doctor might have no duty to disclose a 0.5% risk. In this sense, “marginal” decisions will still occur. The “thumb on the scale” approach might also be designed to express special concern for one value in the balance, relative to some other, deficient way of valuing it. But this concern can be accommodated in a balancing test without suggesting the implausible conclusion that there will never be marginal cases. For example, one might conclude that the social value to be given to patient autonomy is greater than the value that most patients actually express in the marketplace (either because of marketplace distortions in capturing the private valuations of patients, or because recognizing patient autonomy is a collective social good, the value of which transcends the sum of individual valuations). Thus, even if patient surveys reveal that most patients only strongly care about risk information that has at least a 20% probability of changing their mind about treatment, the “thumb” might justify a rule that doctors disclose risk information with at least a 10% probability of changing a patient’s mind. Notice, however, that this use of a “thumb on the scales” is much more limited than the general use described earlier.
If you want to pursue these issues, Ken suggests two articles:
    1. Mark Geistfeld, Reconciling Cost-Benefit Analysis with the Principle That Safety Matters More than Money, 76 N.Y.U. L. REV. 114 (2001).
    2. Gregory Keating, ³Pressing Precaution Beyond the Point of Cost-Justification² 56 Vanderbilt Law Review 653 (April 2003), forthcoming, available at:

Eden on Arneson About a week ago, I posted a link to a new paper by Richard Arneson, entitled Democracy is Not Intrinsically Just. John Eden writes with some interesting comments which you can read on the Legal Theory Annex.

Pryor Cloture Vote Fails Courtesy of the incredible Howard Bash, the AP report is here.

Marston on Judicial Self-Understanding Brett Marston has a very thoughtful and nuanced post on legal realism, legal formalism, and how judges understand themselves. Recommended.

The Precautionary Principle
    Introduction Here is something about blogging that I love: blogging is conversational! A conversation starts with one topic and it naturally flows into another. This has happened recently as a result of some blogging that started with a post by Chris Bertram on Crooked Timber about the goodness of natural foods, things to eat that are recognizably from the earth--I posted a brief footnote to Bertram's very interesting post. The conversation turned towards the possible risks associated with genetically-modified foods and organisms, and from there, to the "precautionary principle." (Stephen Laniel here & my reply here and Stephen Laniel again here.) And so I find myself wanting to say a bit more about the precautionary principle and its limits. Here goes.
    Defining the Precautionary Principle What is the precautionary principle? Honestly, I am not sure I know. I've poked about a bit, hither and yon, and I'm not sure there is a clearly-formulated, well-accepted definition. Last time, I used this definition:
      "the precautionary principle requires us to assign the burden of proof to those who want to introduce a new technology, particularly in cases where there is little or no established need or benefit and where the hazards are serious and irreversible. It is up to the perpetrators to prove that the technology is safe 'beyond reasonable doubt'."
    But Adam Kessel takes me to task for attacking a straw man, and suggests this definition:
      1. People have a duty to take anticipatory action to prevent harm. (As one participant at the Wingspread meeting summarized the essence of the precautionary principle, "If you have a reasonable suspicion that something bad might be going to happen, you have an obligation to try to stop it.") 2. The burden of proof of harmlessness of a new technology, process, activity, or chemical lies with the proponents, not with the general public. 3. Before using a new technology, process, or chemical, or starting a new activity, people have an obligation to examine "a full range of alternatives" including the alternative of doing nothing. 4. Decisions applying the precautionary principle must be "open, informed, and democratic" and "must include affected parties.
    Kessel is certainly right that this statement of the principle is more fully developed, and avoids the implausible "beyond reasonable doubt" standard. Another, very influential statement of the precautionary principle is found in Principle 15 of the Rio Declaration on Environment and Development:
      In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
    This formulation we reaffirmed in the Cartagena Protocol on Biosafety, and it is modeled on the Bergen Declaration on Sustainable Development (and in many other agreements, which are collected here).
    My conclusion is that Adam Kessel's criticism was entirely fair. Although I spent a bit of time searching for versions of the precautionary principle; I really can't say that I found the best, most defensible version. And it turns out that the most authoritative versions are also vague. So let's take a deeper look at the issues the underlie the difficulties in formulating the precautionary principle.
    Untangling the Definition: Burdens of Proof, Persuasion, and Production & Standards of Proof The precautionary principle is concerned with the burden of proof, but in order to get straight about the principle, we need to disentangle what "burden of proof" means. Here one useful way to analyze the notion of a burden of proof:
      --The burden of production is the burden of going forward on an issue. The party (or social actor) with the burden of production on an issue has burden of raising the issue. In a criminal trial, the prosecution has the burden of production on the elements of the crime. Hence, the prosecution goes first.
      --The burden of persuasion is correlative with the risk of nonpersuasion. The party (or social actor) with the burden of persuasion must be convincing (by some standard of proof) with respect to an issue. In criminal trials, the burden of persuasion (like the burden of production) rests with the prosecution. Although the burdens of production and persuasion can be joined together--they can also be pried apart. For example, once a party has raised an issue, the burden or persuasion could then rest elsewhere.
      --The standard of proof is the quantum (not necessarily numerical) of evidence required to meet a burden of production or persuasion. Thus, in criminal trials the burden of production and persuasion is on the prosecution to establish guilt beyond reasonable doubt. In civil cases, the burden of persuasion is on the plaintiff to carry the elements of her case by a preponderance of the evidence. Another standard of proof commonly used in the law is clear and convincing evidence. Decision theorists and policy analysts usually substitute probabilities for the qualitative standards used by lawyers. So an event that is certain to occur has a probability of 1.0. We might might translate the perponderance of the evidence standard as p < 0.5.
    In the context of the precautionary principle, the notion is that the burdens of production and persuasion should rest with the actor (e.g. the individual, firm, or government unit) that wishes to introduce a new technology. Simplifying, we might say that the introducer of a new technology has the burden to establish that the technology is safe by some standard of proof. Of course, it is more complicated. 100% safe would be a silly standard, because it would preclude technologies that produce enormous benefits but small safety hazards. Hence, the burden might be reframed as the burden to show that the new technology's benefits outweigh its costs. Here is the bottom line: a precisely formulated precautionary principle must allocate the burdens of production and persuasion and specify a standard of proof. If the precautionary principle is formulated more vaguely, then it isn't well-defined. And a precautionary principle that is not well defined cannot really be evaluated. We need specificity in order to have a meaningful discussion.
    Decision Theory My discussion of burdens and standards was only the first step towards clarifying debates over the precautionary principle. A second step is necessary. We need to clarify what we mean when we talk about uncertain consequences or risks. Lot's of work on these issues has been done in the discipline (crossing lines between philosophy, economics, mathematics, and policy science) which is usually called "decision theory." We need to distinguish between decision under conditions of perfect information and decisions under conditions of uncertainty:
      Decision With Perfect Information Let's start with the idea of decision given perfect information. By perfect information, I simply mean that we know everything about the relevant consequences of our actions. Decision theory uses operates within a simplified utilitarian framework, but this is not an inherent feature of decision theory. Assuming an act-utilitarian framework and perfect information, the rational decision is the decision that produces the greatest sum of individual utilities as compared with any feasible alternative course of action. Clearly, the precautionary principle is not intended to apply to decision under conditions of perfect information. So we need to examine cases where information is less than perfect.
      Decision Under Uncertainty therefore, let's consider the possibility that we lack certainty about the consequences of the alternative actions or policies we are evaluating. This next bit is crucial: there are two different kinds of uncertainty. I will call these two forms of uncertainty risk and ignorance--but pay close attention to my definitions, because different theorists use these terms in different ways.
        Uncertainty as Risk Uncertainty as risk exists when we can assign probabilities (or ranges of probabilities) to the various possible consequences of actions. Thus, if there is a 50% chance that a genetically modified crop will cause a particular harm (e.g. kill a certain number of Monarch butterflies), that is a condition of risk. Given conditions of risk, decision theory says that one should maximize expected utilities, where the expected utility of an action is the sum of all the utilities associated with the various possible consequences of the action, each discounted by the probability that it will occur.
        Uncertainty as Ignorance Uncertainty as ignorance exists when we cannot assign probabilities (or ranges of probabilities) to the various possible consequences of our actions. Thus, if we believe it is possible that a genetically modified crop will cause a particular harm (e.g. kill some Monarch butterflies), but we cannot say whether that outcome is 100% likely or 50% likely or 0% likely, we are in a condition of ignorance.
    The Precautionary Principle and Decision Theory So now we are in a position to evaluate the precautionary principle. Here is my suggestion. Once we appreciate the difference between risk and ignorance, we discover that the precautionary principle must deal with two, very distinct, problems. Let's consider each separately, and try to get clear about the work the precautionary principle could do.
      The Precautionary Principle and Risk What does the precautionary principle tell us about situations where a new technology creates quantifiable risks of various harms? Once we start to think about this, it turns out there are further subcases:
        First, there is the case where the probabilities have already been assessed. That is, the risks are not only quantifiable, they are quantified. In this case, I don't see any interesting role for the precautionary principle to play. From a utilitarian perspective, we ought to maximize expected utilities. Perhaps, the precautionary principle is meant to address the situation where there is a very low probability of a very great harm. In this situation, society as a whole might decide to adopt an aversion to risk. For example, we might adopt a maximin principle for decision, maximizes the minimum payoff, or more colloquially, avoiding the worst case scenario. So, suppose we determine that planting a GM crop would create a very, very low probability of a catastrophic result, a one in a billion chance of triggering cascading exterminations that would cause a loss that we would value at 10 billion dollars. When discounted by its probability, this loss has an expected value of minus ten dollars--rather insignificant. If this is the upshot of the precautionary principle, it stands in need of justification. Why should we allow remote possibilities to dominate the decision making process?
        Second, there is the case where the probabilities have not yet been assessed, but they could be, by an investment of resources into research. Perhaps, the precautionary principle is telling us that in such cases, the advocate of allowing a new technology should have the burden of establishing the level of risk, before going forward. But there is an interesting problem here. Research is itself costly. But when we decide whether to expend resources on research, we don't know what the result will be. If we invest in costly research and it yields no useful information, we've wasted or money. But it is in the nature of research that one doesn't know the outcome until after the research is done. If the precautionary principle is telling us to do the research before we make the decision, then the question arises: how much should we invest in research? Unless the precautionary principle can answer this question, it cannot provide meaningful guidance in the case at hand.
      The Precautionary Principle and Ignorance This brings us round to the case where we are dealing with ignorance. We are trying to make a decision, but we the risks are unquantifiable. What does the precautionary principle tell us to do? Stephen Laniel's most recent post gives an example of the kind of thinking that advocates of the precautionary principle might engage in:
        To my mind, the biggest danger arising from the introduction of GMOs is that we don?’t know how they?’ll interact in the real world, with real species. A laboratory experiment won?’t even approximate the real phenomenon we?’re concerned about. So what would Solum have us do? Introduce the modified species into the natural environment, then measure the long-term consequences of our actions? Sure, we can try that, but then it would be very hard to reverse our mistakes.
      Because we cannot assess the risks, we ought not introduce genetically modified organisms. Here's another way of getting to the same conclusion. Let's take the suggestion that the precautionary principle places the burden of persuasion on the advocate of a new technology. Let's assume for the sake of argument that the standard of proof is preponderance of the evidence. Thus, the advocate must show by preponderance of the evidence that the proposed new technology is safe (or that its benefits outweigh its hazards). How does that burden interact with a condition of ignorance? The principle seems to say that under these conditions, the new technology may not be introduced. Why? Because if we are talking about a risk that is uncertain in the sense that we lack the information to assess the risks, then the advocate of the new technology will be unable to meet her burden to demonstrate safety (or cost-beneficiality).
      This bit is crucial: In cases of uncertainty as ignorance, allocating the burden of persuasion makes the decision. Why? Because in cases of ignorance, it is simply impossible to meet the burden of persuasion by any standard of proof.
      And this point leads to another: Once we are in the realm of ignorance, the possible gains and losses cut both for and against any given action. This is because the realm of possible good and bad consequences for any action is vast. There is a possible world in which a new GMO causes cascading extinctions that result in the the end of all human life, and there is a possible world in which the same GMO prevents these extinctions. By definiton, we have absolutely no knowledge of the likelihood of these scenarios under conditions of ignorance.
      If the precautionary principle is interpreted to forbid the introduction of new technologies on the basis of possible harms with unknown probabilities, it is irrational. Here is a statement of this argument from
        The precautionary approach to risk can paradoxically increase risks both to human health and the environment. There is a risk of innovation, but there also is a risk of stagnation. Any policy relating to new technology needs to use that risk vs. risk framework. To do otherwise ?– to blindly follow the precautionary principle -- means that anything new is guilty until it is proven innocent. It means that a scientific invention or a new technology that may offer life-saving benefits to millions of people also, because it may present some risks, can be banned or severely restricted. There are high risks involved in avoiding risk through the precautionary principle.
    Taking Stock Let's back up then. I think the precautionary principle is actually many principles. The family of precautionary principles is united by a common concern for decisions about new technology under conditions of uncertainty, but the actual content of the principle varies widely:
      --One version of the precautionary principle simply says that harms should not be ignored solely on the basis that we are not 100% certain that they will occur. A related idea is that risks should not be disregarded pending the completion of research. This version of the principle is common sense, and a sound basis for policy making.
      --Another version of the principle might say that the advocates of new technology ought to come forward with information about risks and/or reasonable investments in research about risks. As a rule of thumb, this seems quite sensible.
      --Another version of the principle might say that the advocates of a new technology have the burden to demonstrate that the technology is safe (or cost-beneficial) preponderance of the evidence. This version makes some sense if we are dealing with quantifiable risks, but is irrational as applied to cases of risk as ignorance.
      --Another version of the principle might say that the advocates of new technology have the burden to demonstrate that the technology is safe (whether cost-beneficial or not) and that this showing must be made beyond reasonable doubt. This version of the principle is just plain nutty. In all likelihood, it would have the consequence of increasing environmental harms and preventing the adoption of new technologies that would have great benefits to the environment.
      --And there are undoubtedly, many other ways to formulate a "precautionary principle."
    Conclusion Frankly, when I started writing about this topic, I thought I was against the precautionary principle. After doing more research, I realized that there were some versions of the principle that I could support. But the more that I worked on this topic, the more I became convinced that the phrase "precautionary principle" is hopelessly muddled. Of course, diplomats may like the principle for precisely that reason, but from the point of view of good policy analysis and scholarship, I am inclined to think that we would be better off without using the phrase "precautionary principle." If we continue to use this phrase, then we ought to be careful to define it, and in particular, to be clear about burderns of persuasion, standards of proof, and the distinction between risk and ignorance.

Wednesday, July 30, 2003
Weatherson on Naturalist Ethics What a joy Crooked Timber has been! Surf over to philosopher blogger Brian Weatherson's post entitled Ethical Naturalism reredux Here is a taste:
    [N]aturalists deny nature has a purpose. True enough, but not much follows from that. A little analogy. Consider a crowd in Times Square on a typical work day. The crowd as a whole has no discernable purpose whatsoever. It isn’t like New Year’s Eve where the purpose is unintelligible, there just isn’t a group purpose there. But the individuals in the group can have purposes. One might be looking for food, another for theatre tickets, and another (I’m told) for where all the porn shops have gone. It might be disheartening to think of all of nature as an aimless Times Square crowd write large, but even if we do, that doesn’t entail that none of the constituent parts have purposes.
I have a trilogy of recent posts on naturalist ethics: (1) Naturalist Ethics, (2) Metaethical Prejudice: More Remarks on Ethical Naturalism, and (3) Natural Goodness: From Facts to Values.

The Crooked Timber of Monkeykind If you are interested in programming and especially if you have ever worked on a database project, you will want to gread Tom Runnacles post here. This is the line I love:
    [Y]ou can’t get a project which is behind its schedule back on track by adding more code-monkeys to it.
How can it be that institutions forget this principle almost the minute after they learn it?

More from Non-Volokh on Pryor For Juan's latest, go here. My comments are here and here.

Hasen on the Recall Rick Hasen (Election Law Blog) has an editorial entitled Horse before cart in recall challenges on the California recall election in the Sacramento Bee. Here is a taste:
    There are . . . significant similarities between the Florida and California controversies. Both involve numerous parties using election law challenges brought in multiple venues as part of a larger political strategy - a trend that predates, but that was accelerated by, the Florida controversy. Thus, the California anti-recall litigation strategy of going to state and federal court and throwing up numerous arguments to see what sticks follows not just Bush v. Gore, but also controversies last year in New Jersey over Sen. Robert Torricelli's replacement on the ballot and in Minnesota over absentee ballot changes in light of Sen. Paul Wellstone's death.

Bertram on Cohen I posted yesterday (Natural Goodness: From Facts to Values) on Gerald Cohen's very recent article Facts and Principles, in the Summer 2003 issue of Philosophy and Public Affairs. Chris Betram makes a very interesting observation about Cohen's argument:
    One thing worth noticing about Cohen’s view is that even though most of the discussion is about ethics, it applies to normative principles quite generally. This being so, it ought to apply to such principles in other domains (including epistemology and the theory of rational action) and that if it threatens naturalism in ethics it also threatens naturalistic programmes in those areas.
The core idea of Cohen's argument is that any normative principle that is fact dependent will be fact dependent for a reason, and that the reason will always turn out (in the end) to be a normative principle that is not fact dependent. If Bertram is right, then Cohen's argument has very broad philosophical implications--extending beyond moral and political philosophy to epistemology, rational choice theory, etiquette, and applied disciplines (e.g. engineering). Interesting.

More on Facts and Values T.J. Lynn writes with a very keen comment on the use of functionalist explanation by Richard Dawkins, posted here at the Legal Theory Annex.

No Nukes Courtesy of Rick Hasen and Howard Bashman, Geoff Earle has a story entitled ‘Nuclear option’ out, on The Hill. Here's the beef:
    Senate Republican leaders have shelved their plans to exercise a “nuclear option” to break free stalled judicial nominees — at least for now. The leaders, frustrated by a Democratic filibuster of several nominees to the U.S. Circuit Court of Appeals, as well as other judges, apparently have concluded that the swift parliamentary action being contemplated would be counterproductive. That’s because, as the current thinking goes, it would enrage Democrats while Majority Leader Bill Frist (R-Tenn.) is seeking to move an ambitious legislative agenda through the chamber.
This is no surprise. The problem with the so-called nuclear option is that the Democrats could retaliate--most simply by refusing to cooperate with unanimous consent on routine matters by asking for roll call votes. But the real test of the Republican's willingness to use the nuclear option would be a Democratic filibuster of a Supreme Court nomination. For my discussion of this issue, see Breaking the Deadlock: Reflections on the Confirmation Wars. With the Senate unwilling to go to the mat for the President, another question comes to the fore: will President Bush now consider more extensive use of the recess appointments clause?

Call for Papers
    The Northern Illinois University College of Law announces its 13th annual Law Review Symposium, which will focus this year on "Emerging Issues in Equal Protection Jurisprudence." The Symposium will bring together legal scholars and practitioners to present the most recent understandings of how the legal systems of the United States address the critical social issue of equal protection. The Symposium's goal is to highlight the manner in which legal systems both fulfill their roles in responding to equal protection violations as well as fail to fulfill these roles. The Northern Illinois University Law Review is an academic legal journal devoted to discourse on legal issues of public concern. The summer 2004 issue will be devoted to papers submitted for the production of the 13th annual Symposium. Non-traditional journal articles, such as essays, letters, and booknotes will be considered for publication as well. The Law Review Symposium Editor announces a call for papers for this issue. Scholars and practitioners may submit papers for publication only or for inclusion with the Symposium. The Symposium will be held in March 2004. Papers are due by December 1, 2003. For further information, please contact Amy Miller, Symposium Editor, at or at Northern Illinois University Law Review Attention: Symposium Editor Swen Parson Hall DeKalb IL 60115 or by calling (815) 753-0619.

Domain Name Policy Anupam Chander (UC Davis) post The New, New Property, forthcoming in the Texas Law Review on SSRN. Here is the abstract:
    Already, the world of cyberspace is beginning to replicate the inequalities of real space. The distribution of domain names, a basic building block of e-commerce, shows dramatic disparities between the high and low income parts of the world. Americans own most of the world's domain names, including the names of faraway countries, tribes, and cultural events, such as,, and No African or South American company has the lucrative charter that would allow it to award global domain names. The principal cause of this inequality is a domain name system that follows a rule of first possession. This Article critiques this property rule as being founded less on moral reasoning than on an assertion of power. Going further still, the Article argues that the current property rights regime in domain names cannot be justified by any of the traditional philosophical or economic theories underlying our private property system. In rethinking entitlements to domain names, the Article turns to the history of the American public lands and the international law regimes governing global commons spaces, such as the ocean bed, outer space, and Antarctica. We see in each of these cases the effort to craft a system that allocates rights to a common or global resource paying heed to social goals such as distributive justice, environmental protection, and economic development. Thus far, scholars and policy-makers have not paused to consider any such concerns for the world of cyberspace. Drawing upon the insights of diverse disciplines, this Article proposes a global domain name regime that comports with concerns for equality and distributive justice.
For a very different take on these issues, see An Economic Analysis of Domain Name Policy by Karl Manheim & myself, in which we argue that the provision domain name service should be allocated be allocated by markets.

Zwolinksi on Ethical Naturalism Comments continue to roll in on my trilogy of posts on naturalist ethics [(1) Naturalist Ethics, (2) Metaethical Prejudice: More Remarks on Ethical Naturalism, and (3) Natural Goodness: From Facts to Values]. Here is the latest. Matt Zwolinksi (University of San Diego, Philosophy) writes on naturalism in ethics:
    I share some of the worries people like Evans have about naturalistic ethics, or at least, the sort of naturalism espoused by Foot et al. Foot says that "natural goodness" is an uncontroversial notion. This is easiest to see, I think, in the case of artifacts. A sharp knife is better than a dull knife. Why? Because the purpose of a knife is to cut, and sharpness aids this purpose. And how do we know that the purpose of a knife is to cut? Because that's what we made it for! It's hard to see what notions of purpose/function (I'm taking these to be equivalent) could amount to unless they make reference to some *agent* whose purpose is being served. But in the case of artifacts, this poses no problem. It's a little trickier in the case of non-human animals. Take the case you cite in your summary of Foot -- that it's good for a deer to be swift. Why? Presumably, the argument is that a deer needs to be swift in order to survive, and survival is a major part of the purpose of deer. But why is survival a deer's purpose? Why isn't their purpose to provide entertainment to hunters, or to decorate National Parks? Because that's not what the deer aim at? (Do deer *aim* at anything?) Because that's not what they're best suited for, evolutionarilly speaking? (But why should we regard evolution as setting the relevant standards? If human beings were evolutionarilly adapted to slaughter each other, wouldn't slaughter still be wrong?) One argumentative option -- the one which Evans erroneously assumes is the only one -- is to say that God's purpose sets the relvant norms. But there are obvious problems with that for a non-believer. But let's set the problems with animals to the side for the moment. When we apply the analysis to humans, we seem to face an even greater challenge: it seems to fail to account for the *choice* human beings have in setting their purpose. This, ironically, seems to be the position of the younger Foot (in her "Morality as a System of Hypothetical Imperatives" days). For any alleged categorical imperative -- be it "thou shalt not lie" or "thou shalt respond in the third person to invitations written in the third person" -- it seems that a human being could rationally respond by saying "so what?" Doing X might be immoral, or un-American, or against the dictates of etiquette; but if I don't *care* about any of those things, then it's difficult to see how one could charge me with irrationality. In other words, we're lead back to another famous Humean point -- that reason is a slave of the passions. If I don't desire to be moral, then I can't be charged with irrationality for acting immorally. I think there's a way to forge a significant amount of reconciliation between this view and yours. And that is to move from talk of hypothetical and categorical imperatives to *assertoric* imperatives. Assertoric imperatives are simply hypothetical imperatives where the conditional is actually (rather than merely possibly) satisfied. So, perhaps there's no law of reason or nature which binds me to liking basketball, but given that I *do* like it, I ought to play it. One way people like Evans can make sense of what Foot et al. are up to, then, is to understand them as assuming a certain set of desires/goals/ends on the part of human beings, and setting forth virtue ethics as a way to satisfy those desires/goals/ends. IOW, humans didn't *necessarily* have to seek their happiness, but given that they do, and given the way human psychology works, and the way social systems work etc etc, here is a set of virtues which ought to govern human conduct. This seems a reasonable position to me, though it leaves the answers to two important questions uncertain: 1) Is there enough similarity among the ends held by humans to ground a single list of virtues? (And what do we say about persons who reject those ends?), and 2) Is this position "naturalistic"? It takes desires/goals/ends as normative, but why should it? Is there any more reason for taking these as normative than the will of God, or the good of the race or...?

New Papers on the Net Here is today's roundup:
    Edward Lee (Ohio State) posts The Public's Domain: The Evolution of Legal Restraints on the Government's Power to Control Public Access Through Secrecy or Intellectual Property, forthcoming in the Hastings Law Journal. From the abstract:
      The concept of the public domain is the focus of a firestorm of debate, precipitated by some of the most important controversies of our digital age. This debate, however, is deeply flawed in two critical respects. First, the debate has invoked the public domain without a clear understanding of the origin of the term and the first principles courts enunciated in recognizing the concept. Second, the debate has focused almost exclusively on intellectual property law in analyzing the public domain, ignoring the many uses of the term in other areas of law, such as First Amendment rights of access, government secrecy agreements, espionage, the Freedom of Information Act, and regulations governing classified information and munitions lists. This Article aims to correct these two shortcomings in the current debate by tracing the historical development of the concept in intellectual property law and in the areas of law involving government secrecy. This analysis is critical for evaluating not only the government's recent expansions of the scope of intellectual property, but also the government's increased use of secrecy, post 9/11, including in the detention of enemy combatants, deportation of aliens, and removal of materials from government websites. Drawing upon modern evolution theory and Bruce Ackerman's theory of constitutional moments, the Article shows how the various uses of the public domain in intellectual property law and government secrecy cases are all related in origin, structure, and function, and concludes by suggesting how the concept of the public domain may now lie in threat of extinction.
    John Allison and Emerson Tiller (University of Texas at Austin - Red McCombs School of Business) post The Business Method Patent Myth, forthcoming in the Berkeley Technology Law Journal. From the abstract:
      Although business methods previously had been patented, the Court of Appeals for the Federal Circuit first gave them formal recognition as patentable subject matter in 1998. Internet business method patents have been roundly criticized by most observers as being singularly inferior to most other patents. Many have even argued that business methods should not be patentable subject matter. As a result, Congress and the Patent and Trademark Office (PTO) singled them out for special treatment. All of these criticisms were voiced without empirical support. We gathered data on most Internet business method patents issued through the end of 1999 and compared them with a large contemporaneous data set of patents in general. We also compared them with patents in fourteen individual technology areas within the general patent data set. Our comparison focused on several metrics that we believe serve as good proxies for patent quality and value. We found that Internet business method patents appear to have been no worse than the average patent, and possibly even better than most. They also appear to have been no worse, and possibly even better than patents in most individual technology areas. These findings lead us to question the conventional wisdom that these patents were uniquely deficient. We briefly explore some possible explanations for the chasm between the accepted view and what we believe to have been the reality, including the possibility that negative opinions about these patents may have been characterized by an information cascade. More important, we believe that efforts to single out these patents for special treatment not only lacked sound justification in the particular case but also reveal more fundamental problems associated with ex ante definitions to carve out any particular technology area for different treatment.
    Erich Vranes (Vienna University of Economics and Business Administration - Research Institute for European Affairs (IEF)) posts The Final Clauses of the Charter of Fundamental Rights – Stumbling Blocks for the First and Second Convention, forthcoming in European Integration online Papers. Here is the abstract:
      Particular problems in EU human rights protection stem from the final clauses of the EU Charter of Fundamental Rights (Articles 51 ff). This paper examines these key provisions as well as the proposals for amendments which have been put forward by Working Group II of the Convention and which have been accepted by the Convention's Praesidium in February 2003. The author argues that a closer look at the adjustments to the final clauses reveals that cardinal problems with far-reaching systemic implications remain unsettled. This holds true, particularly, for the question of whether Member States will continue to be bound by EU fundamental rights when they derogate from Community law, or "Union law" in future. The same is true, second, as regards the question of whether and under what conditions the supremacy of Community law (or, according to the Praesidium's draft Article 9, "the law of the Union") cannot supersede national fundamental rights. A third fundamental problem has been added, unnecessarily, to the former two through Article 52 para 5 on "rights and principles" which is apt to negatively affect the significance and scope of fundamental rights set out in the Charter. As also the other proposed adjustments can hardly be regarded as adequately addressing actual or perceived constitutional concerns, this paper submits that existing doubts are reinforced as to whether the much-discussed "Convention method" really allows for an appropriate treatment of fundamental, albeit technically intricate problems.
    'Christopher Cotropia (Tulane) posts Arising Under' Jurisdiction and Uniformity in Patent Law, forthcoming in the Michigan Telecommunications and Technology Law Review. Here is the abstract:
      Congress created the United States Court of Appeals for the Federal Circuit in 1982, in part, to establish nationwide uniformity in patent law. The law governing the Federal Circuit's appellate jurisdiction was recently addressed by the Supreme Court's decision in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. The Court held in Holmes that the Federal Circuit's appellate jurisdiction is governed by the well pleaded complaint rule and specifically rejected counterclaims as a vehicle to vesting appellate jurisdiction with the Federal Circuit. The Supreme Court's decision opens the door for claims of patent infringement under 35 U.S.C. Section 271, and other patent claims, to be reviewed by regional circuits, instead of the Federal Circuit. The impact of Holmes will also be felt with respect to a federal district court's removal jurisdiction and exclusive jurisdiction over patent counterclaims. The door is clearly open for the development of substantive patent law outside of the hands of the Federal Circuit and, perhaps even more importantly, outside of the federal courts. The very uniformity Congress attempted to introduce through its creation of the Federal Circuit and a federal patent law system may become undone by the Supreme Court's decision in Holmes. This Article addresses the potential non-uniformity in patent law Holmes may create and concludes that the potential for such a development is real. To prevent these situations from occurring, the effect of Holmes on the Federal Circuit's appellate jurisdiction and federal courts' jurisdiction must be limited and regional circuits and state courts must look to the Federal Circuit for guidance on patent law issues. This Article concludes that the only real solution is a legislative response, with Congress amending Section 1338 in such a way to return the Federal Circuit's appellate jurisdiction, and federal district court's original and exclusive jurisdiction, to their pre-Holmes form.
And here are some additional papers of interest:
    Charles Weir (Robert Gordon University - Aberdeen Business School), David Laing (Robert Gordon University - Centre for the Enhancement of Learning and Teaching) and Mike Wright (University of Nottingham - Nottingham University Business School) post Going Private Transactions and the Market for Corporate Control.
    David Hirshleifer (Ohio State University - Fisher College of Business), Avanidhar Subrahmanyam (University of California, Los Angeles - Anderson School of Management) and Sheridan Titman (University of Texas at Austin - Red McCombs School of Business) post Feedback and the Success of Irrational Investors.

Tuesday, July 29, 2003
Natural Goodness: From Facts to Values
    Introduction I've gotten quite a bit of email and blogospheric reaction to my posts on naturalism and ethics: Naturalist Ethics and Metaethical Prejudice: More Remarks on Ethical Naturalism. My posts were prompted by a remark by Matt Evans on The Buck Stops Here that criticized Richard Dawkins for espousing a naturalist ethics:
      Mr. Dawkins is mistaken here, however, as there are no ethics in naturalism. Naturalism is an acceptance of what is, and ethics is the domain of what should be. There is no way to bridge the is/ought gap without referencing an extra-natural source. If a Bright [or atheist] accepts moral absolutes, such as "it is wrong to kill Jews for being Jewish," he does so by faith. Naturalism cannot take him there. It cannot show him that it is wrong to kill Jews for being Jewish.
    Let me be very clear. My focus is really on this claim by Evans: "There is no way to bridge the is/ought gap without referencing an extra-natural source." As Matt Evans points out in subsequent posts, "naturalism" and "naturalist" are ambiguous terms, which can refer to may different philosophical positions. I am not claiming that Dawkins himself has a viable "naturalist ethics," but I do claim that the use of functionalist explanation by evolutionary biologists points towards a kind of naturalism in ethics. In this post, I will collect a variety of reactions, email and blogospheric, to my points. Thanks to Ken Simons of Boston University, I shall also have quite a bit to say about a recent and important article by the Oxford Philosopher, Gerald Cohen. Here we go.
    Matt Evans's Most Recent Reply I should begin with the most recent reply by Matt Evans, who has been extraordinarily patient with my somewhat sharp remarks. Here is an excerpt from his intelligent and gracious post:
      First, let me thank all of those who have taken the time to respond to my post and send me emails. This is a fascinating topic and I've enjoyed learning the different facets of the argument very much. * * * Another problem is that Lawrence Solum and I are plainly speaking of different naturalisms. He knows of a naturalism that accepts purpose in nature -- that nature has a "purpose." I know of no such naturalism. The definition of naturalism from the Skeptic's Dictionary uses the well-known example of the sex drive, among others, to demonstrate the lack of purpose in nature. This definition tracks perfectly the claim I made about nature having no purpose. Notice too the definitions disavowal of any teleological explanations. * * * The term "teleological explanations" is another point we aren't using similarly. Teleological explanations, to my knowledge, are explanations based on the self-evident purpose (telos) of a thing. The teleological argument for God's existence relies on the assumption that we know the purpose of mankind in the same way we know the purpose of a watch. Solum suggested that the weakness of the teleological argument is when it moves from the premise "nature has a purpose, just like a watch has a purpose" to the conclusion "something must have willed nature to be, just as something wills a watch to be," but I've never encountered this argument. What I have seen many times, starting with Voltaire, Lichtenberg, and Hume, is the denial of the premise that nature has a purpose. As Lichtenberg sarcastically put it, "How convenient that God placed slits in a cat's skin, right where their eyes are!" Foot and Solum, on the other hand, accept the premise but not the conclusion.
    Evans is right that he and I sue "naturalism" and "teleological differently. Perhaps the only clarification here concerns the notion that "nature has a purpose." The kind of philosophical position to which I was pointing does not make that claim. Eyes have a purpose or function. Species have a characteristic way of life. But these claims do not depend on the further, and much grander, claim that nature as a whole has some purpose. There are other bits that could be cleared up, but I think that Matt Evans and I have done enough work for the general shape of the debate to be clear.
    Other Reactions from Hither and Yon
      Also over on The Buck Stops Here, Stuart Buck weighs in and responds to Brian Weatherson's post on Crooked Timber. Worth reading.
      You will also want to read Timothy Sandefur who relates (in wonderful) style, a conversation with a Borkian positivist on ethics, nature, and theism.
      The Curmudgeonly Clerk has an excellent post with the bonus of even more links.
      The author of the Technical Work blog, wrote in regarding the teleological explanation and "purpose" in biology. Go to the legal theory annex for his thoughtful and well-informed remarks, with a wonderful biography from recent work in the philosophy of biology. This post emphasizes that I was not as precise as I should have been on the relationship between Foot's use of function and purpose and the way these terms are (mis)understood by biologists. Importantly, Dawkins does not think that evolution itself has a purpose or function, but the kind of naturalism in ethics that I am discussing does not in any way on there being a purpose to nature itself or to evolution.
      Matthew Bass emailed with a wonderful anecdote about the mating habits of Sea Lions. Do not miss his witty and thoughtful remarks, which I've made available on the Annex.
      And thank you to The Epsitemopolitan and CaffMonster for the nice links.
    Cohen on the Fact Sensitivity of Moral Principles Kenneth Simons (Boston University) wrote to call my attention to a recent article, entitled Facts and Principles, by Gerald (Jerry) Cohen in the Summer 2003 issue of Philosophy and Public Affaris. (Available here, but only to subscribers.) Some discussion of Cohen is quite helpful, because it will, I hope, give a sense for the lively debates about naturalism in ethics that characterize contemporary moral philosophy. Here goes:
      Cohen's Thesis Cohen argues for what I think many will consider to be a radical thesis in moral theory:
        In my view—and this is my thesis—a principle can reflect or respond to a fact only because it is also a response to a principle that is not a response to a fact. To put the same point differently, principles that reflect facts must, in order to reflect facts, reflect principles that don’t reflect facts." (Emphasis added)
      So while I have been arguing for (or more precisely, pointing to arguments for) naturalism in ethics, Cohen is (or maybe only seems to be) arguing against it.
      Context Here is a bit from near the start of Cohen's article that puts his argument in context:
        The thesis to be defended here contradicts what many people (and, I believe, most moral and political philosophers) are disposed to think, to wit, that our beliefs about matters of normative principle (including our beliefs about the deepest and most general matters of principle) should reflect, or respond to, truths about matters of fact: they should, that is,—this is how I am using “reflect” and “respond to”—include matters of fact among the grounds for affirming them. So, for example, many find it obvious that our beliefs about principles should reflect facts about human nature (such as the fact that human beings are liable to pain, or the fact that they are capable of sympathy for each other) and they also think that our beliefs about principles should reflect facts about human social organization (such as the tendency for people to encounter collective action problems, or for societies to be composed of individuals who have diverse interests, and conflicting opinions). These people believe that all sound principles are, as I shall say, fact-sensitive, by which I mean neither more nor less than that facts form at least part of the grounds for affirming them. (Emphasis added)
      Before going further, I should like to note that Cohen's description of the state of opinion confirms that main thesis for which I have been arguing--e.g. that naturalism in ethics is on the table, surely not a defeated and discredited positon.
      A Fuller Description of Cohen's Position But let's get back to Cohen's argument. His formulation of his thesis is intended to be precise, but it is a bit tricky. Some clarity is added by the following passage:
        Suppose that proposition F states a factual claim, and that, in the light of, on the basis of, her belief that F, a person affirms principle P. We may then ask her why she treats F as a reason for affirming P. And, if she is able to answer that question, then her answer, so I believe, will feature, or imply, an affirmation of a more ultimate principle (call it P1), a principle that would survive denial of P itself, a principle, moreover, which holds whether or not F is true, and which explains why F is a reason for affirming P: it is always a further principle that confers on a fact its principle grounding power.
      And here is the example Cohen gives to illustrate what this means:
        Suppose someone affirms the principle that we should keep our promises (call that P) because only when promises are kept can promisees successfully pursue their projects (call that F ). (I am not saying that that is the only basis on which P might be affirmed; that it is one plausible basis suffices for my purposes.) Then she will surely agree that she believes that F supports P because she affirms P1, which says, to put it roughly, that we should help people to pursue their projects. It is P1 that makes F matter here, that makes F support P, but the subject’s affirmation of P1, as opposed to whether or not that affirmation induces her to affirm P itself, has nothing to do, essentially, with whether or not she believes that F. She would affirm P1 whether or not she believed the factual statement F : P1 is not, in her belief system, sensitive to whether or not F is true. (If she came to think that facing broken promises builds character, and that F is therefore false, she would have reason to abandon P but no reason to abandon P1.)
      Now, Cohen goes on to note that P1 might depend on another premise with a factual component (e.g. that the reason we should help people pursue their project is that this will promote happiness), but he argues that it is possible that at the end of the chain, we will find a premise without a factual component (e.g. one ought to promote human happiness). This sets up his main argument.
      Three Premises Cohen's main argument has three premises. Here they are:
        Premise One: "The first premise says that whenever a fact F confers support on a principle P, there is an explanation why F supports P, that is, an explanation of how F represents a reason to endorse P."
        Premise Two: "The second premise of my argument is that the explanation whose existence is affirmed by the first premise invokes or implies a more ultimate principle, commitment to which would survive denial of F, a more ultimate principle that explains why F supports P : for that premise my defense is simply to challenge anyone who disagrees to provide an example in which a credible explanation of why some F supports some P invokes or implies no such more ultimate principle."
        Premise Three: "Armed with these premises, we may ask anyone who affirms a principle on the basis of a fact what further and more ultimate principle explains why that fact grounds that principle and, once that more ultimate principle has been stated, whether it, in turn, is based on any fact, and so on, reiteratively, as many times as may be required until she comes to rest with a principle that reflects no fact, unless the sequence of interrogation proceeds indefinitely. But the third premise of my argument is, simply, a denial that it will so proceed. The case for that premise is threefold."
          "First, it is just implausible that a credible interrogation of that form might go on indefinitely: if you disagree, try to construct one, one that goes beyond citation of, say, five principles."
          "Second, such an indefinitely continuing sequence would require something like an infinite nesting of principles, and few will think that there exist a relevantly infinite number of principles."
          "Finally, an unending sequence of justifications would run against the requirement (laid down in section D above) that she who affirms P has a clear grasp of what her principles are and of why she holds them: for we can surely say that a person who cannot complete the indicated sequence, because she has to go on forever, does not know why she holds the principles she does."
        "To sum up the case for the third premise: the sequence cannot proceed without end because our resources of conviction are finite, and, even if they were not, proceeding without end would violate the self-understanding stipulation." (Formatting added)
      Just to be clear, everything from "Here they are:" to "would violate the self-understanding stipulation." is quoted except the bold Premise One, Premise Two, and Premise Three, and the indenting---all of which I've added to make the structure of Cohen's argument clear.
      Cohen's Argument and Hume on Moving from Is to Ought Now you might think that Cohen's argument is a version of the argument attributed to Hume--that one cannot move from is to ought. But Cohen denies this. Why?
        To see that my argument presupposes no denial that one can go from an “is” to an “ought,” observe that, far from rejecting my thesis, someone who thinks that one can go from an “is” to an “ought” need not deny my thesis, and she must, indeed, affirm it if, that is, and as I shall now suppose, she believes that facts support principles at all. Suppose, then, that someone who does believe that facts support principles also thinks that you can go, by semantically based entailment, from an “is” to an “ought.” Like many other people, she affirms the principle that injured people should be assisted, and, when asked why, she defends that, as other people do, by reference to the fact that injured people suffer pain and/or other disability; for simplicity, I shall stick to pain. But then she must believe the further principle that people in pain should be assisted, and, if asked why she believes that principle, she will say something like this, which distinguishes her view from that of other people, including David Hume’s: That it is a conceptual truth that people in pain should be assisted, that a person does not understand what the words “pain” and/or “assist” and/or “should be” (and so on) mean if she does not think so. But, if this anti-Humean is right, then her principle, if X is in pain, then X ought to be assisted, is insensitive to fact, since it is an entailment, and entailments, being a priori, are insensitive to fact. No change in her beliefs about facts would cause her to doubt the italicized principle.
      Let's not worry too much about this argument: clarification here will take us too far afield. Instead let's go back to naturalism in ethics.
      Is Cohen's Argument a Threat to Naturalism in Ethics? To tell the truth, I'm not entirely sure. Cohen's target is not Aristotle or Foot, it is constructivism, especially Rawlsian constructivism. So Cohen's arguments are not formulated so as to be responsive to arguments for natural goodness. At one level, this is obvious. As I've presented the argument for natural goodness, it depends on premises about what is good for humans, what constitutes human excellence. It isn't about moral principles, per se. Cohen might argue that principles of action that refer to natural goodness must ultimately depend on principles which are not fact sensitive. Let's assume there is natural goodness. We then could add a principle like: Human's ought to aim at that which is good for them. And this principle might turn out to be conceptual in the sense that Cohen indicates in the block quote on Hume, above. That is, it might turn out that the moral principle that says "Go for the good!," is true as a consequence of the meaning of "good" and "ought," and therefore is fact insensitive. But this would not, in any way, threaten the kind of ethical naturalism that I have been explicating. Indeed, such a move seems to me quite cogenial to the Wittgensteinian, Neoaristotelian sort of ethical naturalism that I associate with Foot. (On this point, I am quite ready to be corrected if others know better.)
    Conclusion For me, this has been an extraordinarily interesting and productive exchange. I'd like to conclude by emphasizing again my purpose in posting on this topic: Contemporary debates within moral philosophy do not take Moore's naturalistic fallacy or the Humean argument that one cannot derive an ought from an is as settled. Naturalism in ethics is alive and well.

Non-Volokh on Pryor Juan Non-Volokh has a very thoughtful post on the Pryor nomination & the question whether Pryor's opponents are guilty of anti-Catholic bigotry (he says no). If you are interested in judicial seleciton, be sure to read the whole post. Here is an taste:
    The heart of CFJ’s claim, it seems to me, is not that any Senators or public interest groups opposing Pryor are motivated by anti-Catholic bigotry as such. Rather, it is that some Senators and groups have adopted a standard – a “litmus test,” if you will – that operates as a de facto bar against the confirmation of devout Catholics (among others) to the federal bench. Specifically, some have suggested that anyone who believes abortion is morally wrong in all, or nearly all, cases and that Roe v. Wade led (in Pryor’s words) to the “slaughter of millions of innocent lives” is unsuited for the federal bench. I think this is a reasonable interpretation of the views of some, but by no means all, Pryor opponents. The New York Times, for example, labels such a position “extreme” (as it did in a June 23 editorial) and has repeatedly cited Pryor’s views on abortion as exhibit A in its opposition to his confirmation. The Times also cited the abortion issue as reason to oppose Michael McConnell, since confirmed to the U.S. Court of Appeals for the 10th Circuit. The various abortion rights groups are also clear on this point: they oppose any and all nominees that are opposed to abortion. Some Democratic Senators have said, or at least suggested, much the same thing. If this is in fact the standard – if some of Pryor’s opponents believe that deeply felt, religiously inspired opposition to abortion, disqualifies a nominee for confirmation to the federal bench – then it is the functional equivalent of a “Catholics Need Not Apply” sign, in that it will bar devout Catholics who follow church teachings (among others) from the federal bench.
A few quick points:
    First, on this controversial issue, it is important to recognize the diversity of Catholic opinion. Not all devout Catholics share the Church's views on reproduction, and although their faith requires them to make every effort to understand the teachings of the Church on this issue, if in conscience and after due effort, they find they cannot agree, this does not imply that they are not devout.
    Second, so far as I know, Church teachings do not require devout Catholics who serve as judges to either disqualify themselves or to engage in judicial civil disobedience on the issue of abortion. [I am not sure about the very rare case in which a judge might be required by law to order that an abortion be performed.] Although the Church does affirm a generally natural-law theory of the nature and role of law, this does not preclude a Church member from acting as a judge in a system which does not confirm to natural law as understood by the Church.
    Third, in a pluralist, democratic society, the virtues of civility and tolerance require that we respect our fellow citizens' moral and religious beliefs, even when we strongly disagree with them. Litmus tests that coincide with deeply held religious beliefs are likely to be devisive, and this fact should be considered thoughtfully, before such tests are imposed.
    Fourth, although it is true that a Court of Appeals judge can shape--to a limited degree--the contours of the constitutional right to choice/abortion, that ability is constrained in several ways: 1) by the doctrine of vertical stare decisis, which requires Pryor to respect the Supreme Court's abortion decisions (including Roe and Casey; 2) by the doctrine of horizontal stare decisis, which requires Pryoer to respect prior circuit opinion on abortion issues (unless Pryor is serving on an en banc sitting of the whole Circuit); 3) by the functional constraints imposed by the three judge panels and en-banc courts, meaning that Pryor's views will not prevail unless others agree with him.
Given these observations, I believe that as a matter of political morality, it is inappropriate to oppose Pryor because of his deep opposition to abortion. This does not mean I support Pryor. Although I follow judicial nominations more closely than most, I honestly don't think I have enough information to make that decision. I do think I know enough to say that I wouldn't nominate him myself. And I think that the actions of the Committee for Justice are not particularly helpful. In particular, the television ads inflame the passions and are a singularly inappropriate way to restore civility. Well, that post won't make anyone happy!

Severability & McCain-Feingold Mike Shumsky has posted Severability, Inseverability, and the Rule of Law, forthcoming in the Harvard Journal on Legislation. Has been posted on SSRN. Here is the abstract:
    Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution's separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight. Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court's current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement. With McCain-Feingold poised to arrive shortly at the Supreme Court - and with a sharp division over severability among the special panel's judges - the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development.

Bogart on Hume Lawyer and philosopher John Bogart writes with respect to Hume on the move from is to ought:
    The interpretation of Hume's distinction described in your blog is widespread but erroneous. It is quite unlikely that Hume thought you could not derive ought from is because it would make Book Three more or less nonsensical. It may be wrong, but I do not think it is nonsensical. His theories of ethics and justice depend crucially on natural features of human psychology, which must inevitably lead into a deduction of the sort supposedly barred. I think a better account of what Hume was up to in the passage is a critique on the absence of reasoning from historical patterns of conduct or nature to the 'ought', i.e., the 'ought' often is simply ipse dixit.
My prior posts on this topic are: Metaethical Prejudice: More Remarks on Ethical Naturalism and Naturalistic Ethics.

New Papers on the Net Here is today's roundup:
    Stefan Bechtold (University of Tuebingen Law School) posts Governance in Namespaces, forthcoming in the Loyola of Los Angeles Law Review. Here is the abstract:
      Since the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), the regulation of the Domain Name System (DNS) has become a central topic in Internet law and policy discussions. ICANN’s critics argue that ICANN uses its technical control over the DNS as undue leverage for policy and legal control over the DNS itself and over activities that depend on the DNS. Such problems are not unique to the DNS. Rather, the DNS discussions are an example of the more abstract governance problems that occur in a set of technologies known as "namespaces." A namespace is a collection of all names in a particular system. Namespaces are ubiquitous. They can be found both in real space and cyberspace. Namespaces analyzed in this Article include the DNS, IP addresses, ENUM, Microsoft Passport, peer-to-peer systems, TCP port numbers, public key infrastructures as well as digital rights management and instant messaging systems. This Article also shows that many of its findings can also be applied to namespaces outside of cyberspace – such as bibliographic classification schemes, P.O. boxes, Social Security numbers, as well as the names of DNA sequences, diseases, and chemical compounds. Namespaces are an overlooked facet of governance both in real space and cyberspace. This Article develops a general theory of the governance of namespaces. Designing namespaces and exercising control over them is not a mere technical matter. Rather, the technical control over a namespace creates levers for the intrusion of politics, policy, and regulation. In particular, the technical control may lead to speech, access, privacy, copyright, trademark, liability, conflict resolution, competition, innovation, and market structure regulation. The Article provides several dimensions along which namespaces can be analyzed. From a legal and policy perspective, it matters, for example, whether a namespace is centralized or decentralized, whether the namespace is controlled by a public or private entity, and the degree to which the internal structure is adaptive. These and other dimensions influence how namespaces protect social values and how they allocate knowledge, control, and responsibility. This Article will also demonstrate that the "end-to-end argument" was implemented on the Internet by a particular design of a specific namespace.
    Stacey Dogan (Northeastern) posts An Exclusive Right to Evoke, forthcoming in the Boston College Law Review. Here is the abstract:
      Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons and avoid significantly chilling free expression, courts should at least cabin the right to evoke and ensure that, when utilized, it serves the law's normative goals.
And here is an additonal paper of interest:

Welcome to the Blogosphere . . . to Norman Geras of Normblog, courtesy of Crooked Timber.

Weatherson on the Transatlantic Philosophical Divide & Some Comments About the Legal Academy Brian Weatherson, over at Crooked Timber, has an interesting post reacting to an article in the Chronicle of Higher Education on the differences between academic philosophy in the U.S. and the U.K. The Chronical article mentions interdisciplinary work (more in the U.S.) and participation in public life (more in the U.K.), but I have an entirely different set of observations. I begin with the following premise: mainstream academic philosophy in most of the English speaking world (especially including Australia, New Zealand, and Canada--in addition to the U.S., U.K., and Ireland) is strikingly similar--as I think would be expected. But here are some differences that I percieve (whether real or based on sampling error). First, the philosophical community in the U.S. is much larger and more diverse than in other Anglophone countries. In the U.S., there are actually quite a few Thomist and Continentally-oriented departments--not my experience elsewhere. Second, because the U.S. is just plain big, philosophers (even those working in the same field) tend not to know one another if they reside in different regions (excepting those who work in nationally prominent departments). Third, there is nothing comparable in the United States to the role that Oxford plays in the United Kingdom. Oxford's faculty is huge by comparison to any other UK university. No place in the United States plays the same role. All of these differences add up to subtle differences in the sociology of philosophy. I am very tentative about the following observation, but here goes: I think there is greater rigidity of opinion among philosophers in the U.K. that in the U.S. This is, I'm sure, untrue in many respects. There are, I am sure, lots of U.K. philosophers who are, as individuals, more flexible than most American philosophers. And it would not surprise me if there were particular issues or subfields upon which my generalization does not hold. But the antipathy to melding philosophy with empirical work that the Chronicle story notes might actually be some evidence for the phenomenon that I think I've detected. Let me hasten to add that this point about flexibility is not intended as part of a brief in favor of the superiority of philosphy in the U.S. There would be no point in such a silly contention. My observation is just that--an observation. And one more thing. Here is another comparison: I do most of my academic work in the legal academy, but most of my professional contacts in the UK and the rest of the Anglophone world are in philosophy or political science. And I strongly suspect that this reflects the following. Just as the Chronicle story suggests that U.S. philosophers are more open to interdisciplinary work than are philosophers in the U.K., I suspect that legal academics in the U.S. are both more interdisciplinary and more international in orientation than their U.K. colleagues. This "international" bit needs to be qualified in an important way. I'm quite sure that U.K. legal academics are extenisvely involved in European Union law and EU-related international academic exchange. There is, of course, nothing comparable in the U.S. Please do not be too cross with me for my impressions--they are offered only for what they are worth.

Conference on David Hume The 30th Annual Hume Society Conference will be held today through August 2 at the University of Nevada at Las Vegas. Here is the conference website and the schedule. The papers include:

Monday, July 28, 2003
Metaethical Prejudice: More Remarks on Ethical Naturalism
    Introduction Can one derive an ought from an is? Can natural properties also be moral properties? "No, of course not," is the answer that many well-educated intellectuals would give to these questions, but these matters are not simple and they are certainly not considered settled by the professional philosophers who work on metaethics. Yesterday, I posted on naturalist ethics in response to a post by Matt Evans on The Buck Stops Here. In particular, I presented a thumbnail sketch of one of the most prominent positions in contemporary metaethics--the ethical naturalism associated with the distinguished British moral philosopher, Philippa Foot. My aim was not to reproduce the arguments--way too complex for blogging--but to give the reader a lively sense of the kind of moves that are made. Matt responds in ways that illustrate what I think may be common errors about the lay of the land in contemporary metaethics. Let me try to clear up one or two points.
    Naturalism and Theism Evans's first line of response is based on the notion that Foot's line of reasoning, which moves from the notion of natural goodness for plants and animals to natural goodness for humans rests on the notion of intelligent design. Here is the relevant passage from Evans's post:
      Solum uses the teleological argument, the idea that one can deduce nature's purpose through observation, as the basis for his attack on the is/ought gap. The excerpt from [Philippa Foot] specifically endorses the "teleological explanation." But as anyone familiar with the debate surrounding Intelligent Design (the argument for God's existence based a teleological explanation of nature) knows, naturalists reject the argument precisely because it rests on a teleological explanation. This is why I was so surprised by the content of Solum's defense.
    When Evans uses the phrase "teleological argument," he means, I think, to refer to an argument that assumes a creator or designer. Foot's argument does not work this way. Foot's argument is that we humans can discern what constitutes goodness for plants and nonhuman animals without any reference to creation or design. This form of naturalism neither presupposes nor implies the argument for the existence of God from intelligent design. Moreover, Foot's argument does not assume intelligent design. It does assume that plants and animals have ends or purposes, but this does not require that we also assume a creator or designer. Matt's mistake is illustrated by the following passage from his post:
      All naturalists that I'm aware of specifically deny that nature has any purpose. When someone claims to see purpose in nature, naturalists argue, they are actually just projecting their preconceived ideals. Take something as seemingly purposeful as the sex-drive. If you asked most people for the natural purpose of the sex-drive, they would sensibly tell you that its purpose is to motivate animals to copulate so they'll reproduce. Not so, answer the naturalists. The sex-drive has no purpose. It's just that those animals that have a sex-drive are likely to reproduce. Those with no sex-drive are unlikely to reproduce. Nature didn't try to make animals with sex drives -- nature didn't have a purpose -- animals with sex-drives just happened and they survived.
    But of course, Matt is simply wrong about this. Naturalists, like Dawkins, believe that the sex drive does have a purpose, and that purpose or function is reproduction. Indeed, Dawkins' most famous work, The Selfish Gene is an explication of the nature of that purpose--which Dawkins believes is best understood as explained by individual genes, as opposed to whole genomes, organisms, or species. Evolutionary biologists rely on functionalist explanations as their bread and butter: they couldn't do without them. [Update: Several readers remind me that Dawkins does, of course, maintain that evolution operates blindly, and that genes have no conscious purposes, but whether Dawkins knows it or not, those assertions are not inconsitent with his use of functionalist explanations.
    Noncognitivist Metaethics and Naturalism Evans makes another assumption about my defense of naturalist ethics that it is somehow "logical positivist" or "emotivist." "Emotivism" is a form of noncognivist metaethics. Emotivists assert that moral claims (such as "Courage is good for humans") do not have truth values but instead express emotions. (Noncognitivist in this context simply means does not have a truth value.) Here is what Evans writes in his most recent post:
      I discovered that emotive logical positivism, or descriptivism, is frequently called "naturalism." I suspect [Solum] confused these distinct theories with the same name that don't have anything to do with one another. That's why he offered the emotive theory of logical positivism as a defense of Dawkin's ethics. Naturalism (emotive logical positivism) is based on teleological arguments. Dawkin's naturalism (antagonist of Intelligent Design) rejects teleological arguments.
    First, let me be clear: I was not advocating or describing a noncognitivist position in metaethics. Ethical naturalism assumes cognitivist metaethics. That is, it assumes that propositions like "Courage is good for humans," bear truth values. Second, and more particularly, Philippa Foot's version of ethical naturalism is not some form of emotivism or expressivism or of any other noncognitivist theory. Indeed, Chapter One of her book, Natural Goodness, is an attack on noncognitivist metaethics. Third, "logical positivism" is a position in the philosophy of language, associated with A.J. Ayer and more broadly with the so-called Vienna Circle, that has been out of philosophical fashion for a very long time. One would be hard pressed to find any living philosopher who would admit to being a logical positivist. So it would be very peculiar indeed for one of the worlds most renown moral philosophers (Foot) to be defending some form of logical positivism.
    Conclusion And this brings me round to the reason that I responded to Evans in the first place. Evans is a thoughtful and articulate writer. I read The Buck Stops Here on a regular basis, and I very much enjoy the thoughtful commentary by Stuart Buck and Matt Evans. But Evans simply has no idea what he is talking about when it comes to metaethics. He is sincerely convinced that an atheist evolutionary biologist like Dawkins couldn't possibly have a respectable philosophical foundation for his belief that ethics is grounded in nature. And maybe Dawkins himself doesn't. I don't know. But he could have such a foundation. Ethical naturalism that does not depend on theist premises is a perfectly respectable postion in metaethics. That someone as well-educated and thoughtful as Evans could believe otherwise and confuse Foot's views with the argument for the existence of God from intelligent design or with emotivism is suggestive of the deep philosophical prejudices and misunderstandings that are pervasive among well-educated, sophisticated Europeans and North Americans. And this is a shame, because these metaethical prejudices are pernicious. They suggest that political and moral battle lines must be drawn in certain ways. Crudely put, it is part of our cultural mythology that liberals, atheists, and the left are on the side of moral subjectivism and relativism, whereas conservatives, theists, and the right are on the side of moral objectivism and universalism. I know: very crudely put. But I hope you get my point. Dawkins or someone like him can be a moral objectivist and universalist, and by so placing himself, he will be within a great traditon of Western ethical thought (e.g. Aristotelianism) and within the mainstream of the most sophisticated moral philosophy (e.g. Foot). This is not to say that I am sure that in the end ethical naturalism will be vindicated. Who could be sure of that? But it will take a powerful argument to knock out ethical naturalism. Evans hasn't produced such an argument. He hasn't even come remotely close.
    In addition to this post, I commend Brian Weatherson's post on Crooked Timber, which you can find here, with many interesting comments appended.
    I should mention that I have edited Evans's post to correct a spelling error in my name and to correctly identify Philippa Foot (and not Elizabeth Anscombe) as the source of the quote to which Evans refers.

The Rationality of Gluttony Heather Bednarek (Saint Louis University - Economics), Thomas Jeitschko (Michigan State University - Department of Economics) and Rowena Pecchenino (Michigan State University) have posted Gluttony and Sloth vs. Bliss. Let me begin by giving you their abstract:
    In a model of rational agent choice, in which agents value consumption and leisure as well as health, we establish that individuals, unconstrained by concerns of income or time, can and will choose levels of consumption and leisure that exceed their physiological optima. By how much they exceed the optima depends on a variety of factors, most importantly, the utility cost (benefit) of achieving health. Observed positive trends in adult weight, brought on by higher levels of consumption and lower levels of physical activity, often interpreted as a public health crisis in the making, can be explained by these factors. But, rather than the trend suggesting crisis, it suggests only optimal responses to altered, and perhaps improved, circumstances. While individuals today, all else equal, may weigh more than those a generation or two ago, they are also happier.
The legal theorist feels compelled to comment. This kind of economic model is silly and perhaps pernicious. It is frequently a perfectly good move to assume that preferences are given and that rationality consists in maximimizing utilities understood as a function of preferences. But when the question at hand is the rationality of gluttony or sloth, and when the thesis is that gluttony and sloth make you happy, then the argument becomes circular. Happiness and rationality are contested concepts. For example, one important tradition of thinking about rationality would maintain that it irrational not to have appropriate concern for one's health and that happiness consists in part of a flourishing life, including good health. Going out on a limb, the legal theorist will be so bold as to assert that any theory of happiness and rationality that says that if one finds oneself with gluttionous preferences, rationality requires that one damage one's health is implausible on its face. Not recommended.

Geist on Internet Regulation Michael Geist's The tortoise, the hare and the Internet in the Toronto Star is worth a read.

Sherry on Judges of Character Suzanna Sherry's essay Judges of Character, 38 Wake Forest Law Review 793 (2003) has just gone up on westlaw. Sherry is one of several constitutional theorists who have explored the implications of what might be called the aretaic turn in constitutional theory--shifting the focus from decision procedures to judicial character. Her essay is worth a serious look. Here is a taste:
    Ironically, Alexander Bickel, who in many ways inspired the late twentieth- century concern about the legitimacy of judicial review, would likely be at least amused--and perhaps appalled--by much of the last four decades of constitutional scholarship. Bickel firmly aligned himself with what he called the "Whig" tradition of Edmund Burke. That tradition valued existing institutions, eschewing radical change in favor of incremental movement toward unfulfilled aspirations: "We do well to remain attached to institutions that are often the products more of accident than of design, or that no longer answer to their original plans, but that challenge our resilience and inventiveness in bending old arrangements to present purposes with no outward change." Despite his coinage of the "counter-majoritarian" terminology, then, his work on judicial review was designed more to preserve the practice from what were at the time very real political threats than to deny its legitimacy.
    In addition to their use of Bickel's terminology to support arguments he might not have agreed with, the majoritarian scholars who trace their roots to Bickel are missing the most valuable parts of his philosophy. For Bickel provided more than the nomenclature and modern reinvigoration of the debate over judicial review, and more than a Whiggish caution against radical restructuring of existing institutions. He also, as Anthony Kronman has so eloquently argued, provided a philosophy of judging that can, even *795 now, help us to move beyond the counter-majoritarian difficulty. Kronman describes Bickel's "philosophy of prudence" as both "an intellectual capacity and a temperamental disposition." Prudence, or practical wisdom, in turn depends on what Kronman himself later labeled "traits of character": those habits of mind and spirit that allow an individual to make judgments where intellect runs out.
And here is another bit:
    However daunting the task may seem, in the end, describing (and finding) individuals well-suited to the task of judging is likely to prove more useful than seeking artificial mechanisms to constrain poor judgment, or debating once again whether modern American judicial review is a curse or a blessing.
Bravo! For my take on the relationship between character (judicial virtue) and judging, take a look at Virtue Jurisprudence: A Virtue-Centered Theory of Judging, Metaphilosophy, Vol. 34, No. 1/2, pp. 178-213, January 2003.

Weatherson on Moral Subjectivism Go here for Brian Weatherson's contribution to this debate, involving Will Baude & Timothy Sandefur.

Life Expectancies Surf over to Brad DeLong for the data, presented very nicely.

Privacy and Price Discrimination Courtesy of Stuart Buck. Andrew Odlyzko (University of Minnesota, Digital Technology Center) posts Privacy, Economics, and Price Discrimination on the Internet. Here is a taste:
    The rapid erosion of privacy poses numerous puzzles. Why is it occurring, and why do people care about it? This paper proposes an explanation for many of these puzzles in terms of the increasing importance of price discrimination. Privacy appears to be declining largely in order to facilitate differential pricing, which offers greater social and economic gains than auctions or shopping agents. The thesis of this paper is that what really motivates commercial organizations (even though they often do not realize it clearly themselves) is the growing incentive to price discriminate, coupled with the increasing ability to price discriminate. It is the same incentive that has led to the airline yield management system, with a complex and constantly changing array of prices. It is also the same incentive that led railroads to invent a variety of price and quality differentiation schemes in the 19th century. Privacy intrusions serve to provide the information that allows sellers to determine buyers' willingness to pay. They also allow monitoring of usage, to ensure that arbitrage is not used to bypass discriminatory pricing. Economically, price discrimination is usually regarded as desirable, since it often increases the efficiency of the economy. That is why it is frequently promoted by governments, either through explicit mandates or through indirect means. On the other hand, price discrimination often arouses strong opposition from the public. There is no easy resolution to the conflict between sellers' incentives to price discriminate and buyers' resistance to such measures. The continuing tension between these two factors will have important consequences for the nature of the economy. It will also determine which technologies will be adopted widely. Governments will likely play an increasing role in controlling pricing, although their roles will continue to be ambiguous. Sellers are likely to rely to an even greater extent on techniques such as bundling that will allow them to extract more consumer surplus and also to conceal the extent of price discrimination. Micropayments and auctions are likely to play a smaller role than is often expected. In general, because of the strong conflicting influences, privacy is likely to prove an intractable problem that will be prominent on the the public agenda for the foreseeable future.

Sunday, July 27, 2003
Naturalist Ethics
    Introduction Anyone with a liberal arts education is familiar with the naturalistic fallacy and the is/ought distinction, but unless you were a philosophy major or graduate student, you may not have a clear idea as to what is the current state of play on this deeply controversial topic. Can one derive an ought from an is? If you think the answer to this question is an uncontroversial "no," read on!
    Evans on Dawkins Matt Evans (The Buck Stops Here) criticizes Richard Dawkins for proposing a "naturalistic ethics,"
      Mr. Dawkins is mistaken here, however, as there are no ethics in naturalism. Naturalism is an acceptance of what is, and ethics is the domain of what should be. There is no way to bridge the is/ought gap without referencing an extra-natural source. If a Bright [or atheist] accepts moral absolutes, such as "it is wrong to kill Jews for being Jewish," he does so by faith. Naturalism cannot take him there. It cannot show him that it is wrong to kill Jews for being Jewish.
    Who knows what Dawkins was thinking? But here is my question: "Could Dawkins have a philosophically respectable position?" Or is Evans right when he maintains that naturalistic ethics is a nonstarter? My suggestion will be that Evans is on very shaky ground here. Evan's post is very short, so I'm not quite sure what metaethical foundation he would provide for his assertion that
      There is no way to bridge the is/ought gap without referencing an extra-natural source.
    Perhaps, like many of us, he learned as an undergraduate of Hume's famous is/ought thesis. In any event, that's a good place to start.
    Hume on Is and Ought In his Treatise of Human Nature (online version here) (1739), David Hume makes the following argument:
      I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark?‚’d, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it should be observed and explained; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar [poorly reasoned] systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason. [Book III, Part I.]
    What does this mean? David Stove, in an essay entitled Hume's Is/Ought Thesis in 4 Hume Studies No. 2 (1978), remarks
      The famous thesis of Hume about "is" and "ought" I take to be, as I believe it has generally been taken to be:
        (1) For any factual statement e and any ethical statement h, h is not deducible from e.
    Notice that as interpreted by Stove, Hume's is/ought thesis only applies to a certain kind of movement from is to ought--logical deduction, leaving open the possibility that other sorts of arguments might connect is and ought. Let's put that to the side, and back up, taking a look at the history of moral thought.
    Back to Aristotle In the history of ethical thought, antinaturalism ebbs and flows. One very important strand of the Western tradition of philosophical thought about morality begins with Aristotle, and Aristotelian ethics is usually interpreted as naturalistic. That is, Aristotle believed that humans had natural ends, and that the highest humanly achievable good--happiness (faring well and doing well)--was a life in accord with the human excellences or virtues. Among these was the virtue of justice, along with other moral virtues like courage and the intellectual virtues of practical and theoretical wisdom. Aristotle was no intellectual slouch. Can his naturalism survive Hume's is/ought distinction?
    Contemporary Naturalism in Ethics Elizabeth Anscombe's essay Modern Moral Philosophy (G. E. M. Anscombe, Modern Moral Philosophy;, Philosophy 33, 1958. Also in Anscombe's Collective Philosophical Papers of G. E. Anscombe, iii Ethics, Religion and Politics (Oxford: Blackwell, 1981, pp. 26-42)) is one of the most cited and anthologized pieces in contemporary philosophical ethics. Most of the essay consists of criticism of the two dominant strands in modern ethical theory (roughly consequentialism and deontology), but towards the end Anscombe famously suggested that a return to Aristotle might a fruitful avenue of investigation. Anscombe's essay was followed by important work by Philippa Foot, John McDowell, and many others. In a blog entry, I cannot hope to trace the arguments, but I can make one important point: naturalism is a contending point of view in contemporary moral philosophy. That is, Hume's is/ought argument is no longer taken as a settled point in metaethics. One example of contemporary writing in a naturalist vein, is Philippa Foot's recent book Natural Goodness (Clarendon Press, Oxford 2001). Foot's writing is dense, and her argument defies easy summary, but her argument begins with a premise that is hard to deny. "Natural goodness" is an accepted and uncontroversial feature of our talk about the plants and animals other than humans. It is good for deer to be swift and for eagles to have keen sight. This kind of goodness flows from the form of life that is natural for particular species. But can we move from other life forms to humans? Is there natural goodness for humankind? Here is a passage that gives the flavor of Foot's argument:
      The question is, therefore, whether characteristics of humans can be evaluated in relation to the part they play in human life, according to the schema of natural normativity that we found in the case of plants and animals. In favor of this there is the fact that a certain network of interrelated concepts such as function and purpose is found where there is evaluation of all kinds of living things, including human beings. It is possible, of course, that the the meaning of words such as 'function' or 'purpose' should diverge when used in speaking on the one hand of characteristics and operations of plants and animals, and othe the other of those of human beings. But it seems significant that there is a special form of explanation--teleological explanation--to which the idea of function and purpose is related in each case. (p. 40)
    Let me be clear. I do not claim to have produced an argument for naturalistic ethics. Nor I have summarized Foot's argument. Blogs are good for some things, but this is not one of them. Producing an argument for naturalism in ethics would take more space than even I am willing to tax you with, gentle reader. My purpose is much more modest. I hope that these very brief remarks will convince you that, contrary to what you may have assumed, Hume's argument about the derivability of is from ought is highly controversial within contemporary philosophical ethics.
    A Thought Experiment I find the following thought experiment helpful:
      Suppose that you are a xenobiologist from a very advanced civilization. You are part of a team whose mission is to observe the life forms on Sol 3. Your own species has intellectual capacities and knowledge far beyond those of humans. Humans to you are like chimps or dolphins are to us. Your particular assignment is to observe the higher apes (chimps, gorillas, humans, and others). Part of your mission is to determine the characteristic form of life for each of the species. What is a flourishing life, for a chimp, for a gorilla, for a human? What are the chareristics of a well-functioning chimp social group, gorilla social group, human social group? Can you imagine approaching these questions as a xenobiologist would? Clearly, humans would present you with a much more difficult and complicated set of issues than would chimps or gorillas. Human life, you would discover, is much more complex that chimp life or gorilla life. Flourishing human lives involve greater variety and rationality than do flourishing lives for chimps or gorillas. But would you be tempted to say, "I just can't investigate what constitutes natural flourishing for humans and their social groups. That requires me to employ extra natural concepts that are outside the realm of xenobiology."
    Or do you think you could take a stab at it?
    Conclusion So perhaps it is possible to meaningfully ask the question: "Is there natural goodness for humans?" And perhaps there are answers to this question. Perhaps, a naturally good human life is a flourishing life that includes health, friendship, meaningful rational activity, and just relationships with others. Does natural goodness imply that all humans ought to live the same life? Ought all humans pursue the same life plan, the same sorts of occupations and avocations, the same patterns of sexuality and family life? Big questions, far beyond the scope of this post, but I should like to suggest that a naturalistic perspective suggests that the answer to each of these big questions is "no." Diversity within natural limits is part of natural human goodness and a natural consequence of human rationality.

Arneson on Democracy Courtesy of Online Papers in Philosophy, Richard Arneson has posted Democracy Is Not Intrinsically Just, forthcoming in Justice and Democracy, ed. by Carole Pateman, Keith Dowding, and Robert Goodin (Cambridge: Cambridge University Press). Here is a taste:
    In Bertolt Brecht’s glorious Communist propaganda play The Caucasian Chalk Circle, a character who is a mouthpiece for the author declares that “things belong to people who are good for them.” In other words, you are entitled to ownership of some item only if your exercise of ownership promotes the common good. This should be understood to be a maximizing doctrine. If one person’s ownership of land prevents another person from using the land more productively, the first is wasting resources. At this point in the play what is at issue is rights to use land, but later the same point is applied to politics. The wily judge Azdak displays Solomonic wisdom and demonstrates that it is a grave misfortune for the country that his political rule is coming to an end. Political power rightfully belongs to those people who are good for it. I am an egalitarian liberal and a democrat, not a communist, but I accept the principle of political legitimacy that Brecht espouses. Systems of governance should be assessed by their consequences; any individual has a moral right to exercise political power just to the extent that the granting of this right is productive of best consequences overall. No one has an ascriptive right to a share of political power. Assigning political power to an hereditary aristocracy on the ground that the nobles deserve power by birth is wrong, but so too it is wrong to hold that each member of a modern society just by being born has aright to an equal say in political power and influence, to equal rights of political citizenship and democratic political institutions. The choice between autocracy and democracy should be decided according to the standard of best results. Which political system best promotes the common good over the long run? Many types of evidence support the conclusion that constitutional democracies produce morally best results on the whole and over the long run, but this judgment is contingent, somewhat uncertain, and should be held tentatively rather than dogmatically. In some possible worlds, probably some past states of the actual world, and possibly in some future actual scenarios, autocracy wins by the best results test and should be installed. Democracy is extrinsically not intrinsically just.

Conference: Reasonable Partiality
    When and Where Conference on REASONABLE PARTIALITY October 22-24, 2003 Vrije Universiteit, Amsterdam
    Description Conference on the occasion of the 10th anniversary of the Netherlands School for Research in Practical Philosophy. In the eighties of the last century, an attack was launched on the then dominant meta-ethical conception, which identified the moral point of view with the point of view of impartiality. The debate that followed, has largely remained on the level of theory. Thomas Nagel made an important contribution by introducing the concepts of (un)reasonable (im)partiality. Neither impartiality nor partiality is always (un)justified. Whether it is, depends on the nature of the context. The aim of the conference is to explore the relevance of these concepts for illuminating practical moral discussions. Many moral controversies are about whether, and to what extent partial action is justified within a particular context such as environmental ethics (partiality towards the human species), animal ethics (partiality towards domestic animals), political ethics (partiality towards one’s own nation and culture) and professional ethics (partiality toward clients), care ethics (partiality in giving care).
    Program General Introduction--Prof. Owen Flanagan (Duke University USA)
    Political Ethics--prof. David Miller (Oxford University UK) & prof. Veit Bader (University of Amsterdam)
    Animal Ethics--prof. Bernard Rollin (Colorado State University USA) & prof. Robert Heeger (Utrecht University)
    Professional Ethics--prof. Brenda Almond (University of Hull UK) & prof. Frans Jacobs (University of Amsterdam)
    Care Ethics--prof. Alisa Carse (Georgetown University USA) & prof. Marian Verkerk (University of Groningen)
    Registration Information Since the number of participants is limited, it is advisable to register before 1rst September:
      Conference website:
      Dr. N. Athanassoulis Lecturer in Medical Ethics Medical Education Unit Worsley Building University of Leeds 0113 343 1654

Josh Cherniss on History, Theory and Practice Surf here, scroll up, and follow the links.

Saturday, July 26, 2003
The Precautionary Principle In response to my post on GM foods, Stephen Laniel writes:
    How about the law of unintended consequences, namely that the unintended consequences of a policy often overwhelm the intended consequences? Combine this with the fact that there’s no shortage of food in the world, and we just aren’t allocating it correctly (and that the U.S. government continues to pay farmers to leave parts of their fields fallow), and basically the question becomes: Why should I invest in this uncertain proposition (GMOs), when the one I’m familiar with (unmodified food) seems to do the trick just fine? As far as I understand it, GMOs don’t even address any need, in the same way that grafting new roots onto grapes to make them hardier, or other such human interventions do. So the positive consequences of changing to GMOs seem small, and the potential negative consequences are unknown.
Laniel's argument seems to be that GMO's are risky, but this really isn't an argument at all. Every course of action (allowing GMO's, disallowing them, regulating them extensively or lightly) has unknown risks. Because unknown risks are unknown and attend every alternative, they do not provide a reason for choosing among possible actions. Of course, it might be that GMO's involve more risk, but here the science is important. What additional risk? Genetic modification of organisms has been a pervasive feature of human life for many, many thousands of years. So far as I know, there is no good scientific reason to believe that the specific techniques (gene splicing) that are controversial involve greater risks. Indeed, there is good reason to believe these techniques are less risky that many alternatives used to create new plant species. Laniel's post brings to mind the so-called "precautionary principle." Here is one definition: "the precautionary principle requires us to assign the burden of proof to those who want to introduce a new technology, particularly in cases where there is little or no established need or benefit and where the hazards are serious and irreversible. It is up to the perpetrators to prove that the technology is safe 'beyond reasonable doubt'." Huh? In this form, the precautionary principle can easily swallow itself. The precautionary principle is itself a new method for making social policy that will effect the rate of technological innovation in ways that cannot be predicted. The precautionary principel might lead to disastorous consequences, delaying the introduction of new technologies that would prevent environmental disastors (such as global warming or depletion of the ozone layer) because they could not be proven safe "beyond reasonable doubt." Can the precautionary principle itself be shown to be safe "beyond reasonable doubt"? Obviously not.

Hasen Responds to Amar and Brownstein on the Constitutionality of the California Recall Statute Get it here and then scroll up for more.

Baude on Moral Relativism Over at Crescat Scententia, Will Baude has two longish posts on moral relativism, here and here. Also Timothy Sandefur here.

Conscience and Judging The Curmudgeonly Clerk has a very thoughtful post about the role of conscience in judging, responding to this post by Brett Marston.

Catching Up Department I've just come across Peter Gallagher's blog, devoted to trade issues. Worth a look.

Lessig Blog Moves . . . to a new address. All because of Howard Dean's guest blogging.

Keating on Negligence Gregory Keating (University of Southern California) has posted Pressing Precaution Beyond the Point of Cost Justification (also forthcoming in the Vanderbilt Law Review). Here is the abstract:
    Economists generally argue that it is irrational to take more than cost-justified precaution against risks of accidental physical injury. Cost-justified precaution minimizes the dollars spent preventing and paying for accidents, thereby maximizing the wealth at society's disposal. When we take more than cost-justified precaution we make ourselves worse off by making ourselves poorer. It costs more to prevent cost-justified accidents than it does to let those accidents happen and pay for the damage they do. Yet both common law and statutory risk regulation sometimes prescribe more than cost-justified precaution. Are these prescriptions irrational? This Article argues that they are not. When risks of devastating injury are imposed - when we risk premature death, or severe injury whose debilitating effects can never be fully undone - fairness generally requires more than cost-justified precaution. It is unfair to treat devastating injury as commensurable, at some ratio of exchange, with just any benefit which might be gained by risking such injury. Sacrificing an interest as urgent as the interest in avoiding premature death or devastating injury can only be justified if the burden of eliminating that risk is comparable to the burden of bearing it. This requirement of comparability means that we must usually take more than cost-justified precaution against risks of devastating injury. In this context, the Article examines two statutory norms which require more than cost-justified precaution - the "feasibility" and "safety" norms found in federal risk regulation. The "feasibility" norm calls for the elimination of "significant" risks of devastating injury, unless the elimination of those risks would prevent the activity which generates the risks involved from flourishing over the long run. The "safety" norm requires the elimination of all "significant" risks of devastating injury. The paper argues that feasible precaution is appropriate when an activity cannot flourish without imposing a "significant" risk of devastating injury, and the loss of the activity in question would work a harm comparable to and greater than the "significant" risk of devastating injury that is the price of the activity's flourishing. Safe precaution - the elimination of all "significant" risk of devastating injury - is appropriate when the benefits in question are not valuable enough for its elimination to count as a harm comparable to and greater than "significant" risk of devastating injury.

Janice Brown Nominated for D.C. Circuit The N.Y. Times story is here. Justice Brown currently serves on the California Supreme Court, and her name is often floated as a possible Supreme Court nominee.

Call for Papers: Values and Virtues: Aristotelianism in Contemporary Ethics Here is the call for papers:
    Values and Virtues: Aristotelianism in Contemporary Ethics University of Dundee, Scotland, April 30 – May 2, 2004 Speakers:
      Christine Swanton (University of Auckland) John Skorupski (University of St Andrews) Theodore Scaltsas (University of Edinburgh) Paul Russell (University of British Columbia) Sarah Broadie (University of St Andrews) AntonyDuff (University of Stirling) Adam Morton (University of Oklahoma) Linda Zagzebski (University of Oklahoma)
    After 25 centuries, Aristotle’s influence on our society’s moral thinking remains profound even when subterranean. Like the man who realised one day that he’d been speaking prose all his life, typical members of our society can often be made to see that their moral thought and action are, in crucial ways, unwittingly Aristotelian. No one in contemporary philosophical ethics can afford to ignore Aristotle. Much of the finest work in recent moral philosophy has been overtly and professedly Aristotelian in inspiration. Many writers who would officially distance themselves from Aristotle and his contemporary followers are nonetheless indebted to him, sometimes in ways that they do not even realise. The Values and Virtues conference will provide a platform for some of the most important, interesting, and accessible writers in the area to present and discuss their ideas in a way that will both advance the academic debate, and also engage the interest of laypeople. The conference will be held in the West Park Centre, University of Dundee. Thanks to the generosity of The Analysis Trust, we will be able to offer a number of student bursaries to support 50% of the costs of graduate students attending the conference. The conference organisers also wish to thank the Scots Philosophical Club for their support. We also wish to invite graduate papers for presentation at the conference. Papers on any topic relevant to the conference theme will be considered, provided they are short enough to be presented in 45 minutes. In August, a conference website will be established on the Dundee Philosophy Department website. In the mean time, anyone who is interested in hearing further details of the conference is encouraged to contact Dr Timothy Chappell at the Philosophy Department, University of Dundee (
      Dr Timothy Chappell Senior Lecturer Department of Philosophy University of Dundee DD1 4HN Scotland

Friday, July 25, 2003
Naturalness and the Debate over Genetically Modified Foods I've taught a seminar on Biotechnology and the Law and as a result, I acquired a basic familiarity with the arguments for and against GM foods. Now, I am not an expert, but after reading several articles and two books on the subject, I became convinced that most of the health and safety arguments against GM foods were without scientific support. Nonetheless, it seems to me that it is quite reasonable to have an aesthetic preference for natural foods. But why? At one level, this is just a matter of taste. But it is nonetheless reasonable to probe more deeply. Should we prefer natural foods over artificial goods? Are natural foods really more beautiful? Or is their naturalness aesthetically important in some way not captured by the concept of beauty? I may be putting it badly, but I think there is a question here that goes beyond mere subjective taste. Why are "natural" foods beautiful? What do they add to human life that otherwise would be missing? On Crooked Timber, Chris Bertram writes:
    I want my potatoes from the earth and my apples from a tree. I don’t think there’s anything especially “green” about feeling this and I’m somewhat embarassed, as someone who is supposed to live by good arguments, by how hard I find it to get beyond the raw data of feeling, intuition and emotion when I try to think about what is of value. The best I can do, is, I think to notice how much of that is of value in human life has to do with an engagement with the natural world and a recognition of the uniqueness and (sorry about this word) the ‘otherness’ of the world beyond the human.
I think Chris is on to something, but I don't think it has much to do with the debate over GM foods. Almost all the so-called natural foods are actually genetically modified. Natural apples are the size of peas, and we would consider most fruits and vegetables to be inedible were we to encounter them as they existed before humans began to systematically modify their genomes. Sometimes we think of the category of the "natural" as distintinguished from the category of "human-fashioned" or "artificial," but the mapping of this distinction onto the world is frequently distorted. Human interaction with nature has been pervasive for many thousands of years, and much of what we assume is "natural" is also "human fashioned." What counts for me is not whether humans have shaped part of nature, but how we have shaped it. A genetically modified apple (whether the technique involves high technology or seed selection) is a thing of beauty. Indeed, so is a fine soup or a well-made pie. What Chris's post suggests to me is that a flourishing human life should include a variety of "natural" experiences, and that there is real aesthetic value in eating food prepared in ways that reveal the nature of the plant or animal before radical human processing. We are richer for eating apples and carrots that are recognizably from the earth. "Variety is the spice of life," is trite, but maybe it is true.

Is the Recall Statute Unconstitutional? Vik Amar and Alan Brownstein have a Findlaw column on the recall entitled Why An Important Part of the California Recall Process Is Unconstitutional, According to U.S. Supreme Court Precedent Here is a taste:
    [S]uppose that 49% of the voters favor keeping Davis, but he is recalled because more than 50% vote against him. Suppose further that there are successor candidates on the ballot, and that the leading vote getter among them - call him candidate A (for Arnold?) - gets only 10% of the successor vote. Can it be that a candidate with 10% support will oust a governor with 49% support? If so, could this result be squared with the venerable constitutional principle of one-person-one-vote, where everyone's vote is supposed to be counted equally? And what about Bush v. Gore, in which the U.S. Supreme Court reaffirmed that the Equal Protection Clause of the Fourteenth Amendment requires that each voter's ballot be treated similarly to all others'? These are non-frivolous questions. In the end, though, we think that there is no federal constitutional equality problem with a 10% candidate beating a 49% governor.
Amar and Brownstein go on to consider another objection to the recall statute's provision which limits voting on the replacement to persons who vote yes or no on the recall itself. Interesting. I wonder what Rick Hasen thinks.

New Papers on the Net Here is today's roundup:
    Stephen Ellmann (New York Law School) posts To Live Outside the Law You Must Be Honest: Bram Fischer and the Meaning of Integrity, forthcoming in the South Africa Journal on Human Rights and the N. Carolina Journal of Int'l Law and Commercial Regulations. Here is the abstract:
      It is often suggested that anti-apartheid South Africans' use of the old order's courts in the course of their struggle contributed to the new South Africa's commitment to the rule of law. At the same time, it is widely felt that apartheid South Africa's laws were so illegitimate that moral citizens were not obliged to obey them, and indeed were entitled to take up arms against them. Could a lawyer who chose to break the law at the same time contribute to the ideal of the rule of law? Bram Fischer, whose life has recently been compellingly recounted in a full-length biography by Stephen Clingman, followed a moral path that eventually brought his ethical duty as a lawyer and his moral duty to end apartheid into conflict, and in the end chose to breach his duties as a lawyer in order to meet his responsibility as a human being. This article argues that although it is impossible to know with certainty how Fischer's choices affected other anti-apartheid lawyers, or how those other lawyers' choices to obey or disobey the law affected the strength of the rule of law in post-apartheid South Africa, still we have reason to think that his example taught the ultimate importance of achieving a legal system to which men and women, black and white, could be faithful. Fischer's honesty, his commitment to principle, even as he broke the law resonates across the decades that have passed since he made his choices.
    David Carlson (Cardozo) posts The Antepenultimacy of the Beginning in Hegel's Science of Logic. Here is the abstract:
      The Science of Logic is the keystone for Hegel's philosophy. Perhaps the single most perplexing problem in this work is the status of the beginning. Hegel insisted that philosophy must be self-grounding. It cannot start from "givens." Yet, if Hegel's beginning is merely stipulated or "given," then his project is defeated. The usual view of Hegel's intent is that the beginning (Pure Being) is the last step, so that what begins as a presupposition ends up being "proven." This article suggests something different. It proposes that the beginning (Pure Being) is actually the "antepenultimate" (or third-from-last) step of the Science of Logic. So conceived, the first step is a kind of collapse from the last step (absolute knowing) to the antepenultimate step. The beginning is a failure to have a coherent thought - the failure to produce an unmediated thing.
    Jeremy Marr (Boston College) posts Foreseeability as a Bar to the Doctrine of Equivalents. From the abstract:
      The common-law doctrine of equivalents extends a patent's protection to cover certain similar devices that do not literally infringe on the patent's claims. Broad application of this doctrine can, however, create uncertainty as to how substantial an improvement a competitor must make to avoid non-literal infringement. This uncertainty can chill innovation by exposing the would-be improver to potential liability for infringement under a claim of equivalency. The courts created another rule, prosecution history estoppel, to cabin the expansion of protection provided by the doctrine of equivalents. Prosecution history estoppel prevents a patentee from claiming the equivalents that it surrendered during the prosecution of its patent. Both the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court have grappled with articulating the factual situations in which a patent's specification and prosecution history precludes the added protection afforded by the doctrine of equivalents. Several opinions in these cases suggest that a patentee should not be able to invoke the doctrine of equivalents to obtain protection from equivalents that one skilled in the art would have reasonably foreseen before the patent issued. This paper examines a series of cases related to the applicability of foreseeability to the doctrine of equivalents. It then attempts to synthesize the current state of the law in the area, and analyzes arguments for and against adopting a foreseeability rule.
    Christopher Bracey (Washington University, St. Louis) posts two papers:
      Thinking Race, Making Nation (reviewing Glenn C. Loury, The Anatomy of Racial Inequality), forthcoming in the Northwestern University Law Review. Here is the abstract:
        We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race – slavery being only the most egregious example – that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as well. Racial disparity in socioeconomic well-being has always been, and continues to be, a central feature of American life. Of course, we each choose how we come to terms with racial inequality, how we rationalize, compartmentalize, or explain this phenomenon, and how we integrate our "raced" existence into our personal view of the world. For nearly three generations, we have undertaken a largely sustained collective effort to eliminate racial discrimination in American society. For some, the persistence of chronic racial inequality in the face of sustained efforts to ameliorate racial discrimination provides subtle confirmation of deeply held suspicions regarding the intellectual, cultural, or economic capacity of African Americans. For others, the persistence of racial disparity highlights the limits of the prevailing approach to antidiscrimination law and makes the case for greater intervention. Professor Glenn C. Loury's The Anatomy of Racial Inequality is a thoroughgoing attempt to ascertain the root causes of racial inequality and provide insight into the thought process that causes us to view racial disparity with complacency and indifference. However, Loury's project is not merely descriptive. His structural account of racial inequality provides the staging ground from which he launches a deep critique of prevailing views on American race relations. Racial inequity is not the product of some inherent deficiency in the minds and hearts of African Americans. Rather, it is a social pathology "deeply rooted in American history" – a pathology that "evolved in tandem with American political and economic institutions, and with cultural practices that supported and legitimated those institutions . . . that were often deeply biased against blacks." Loury therefore rejects the conservative policy of indifference toward racial disparities, and declares emphatically that racial inequality is "an American tragedy [and] a national, not merely a communal disgrace." In a very real sense, Loury's free and extended meditation on racial inequality and the prospects of racial reform provides us with an insightful theoretical and discursive structure through which we can engage the struggle for racial justice anew. In this review essay, I offer an extended examination and critique of the major arguments presented in the book. In the course of connecting Loury's work with historic and contemporary literature on racial disparities in American life, I offer some thoughts on the impact his project may have upon the shape of American race relations to come.
      Adjudication, Antisubordination, and the Jazz Connection. Here is the abstract:
        We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially disfavored groups, our society nevertheless retains informal structures and networks that have the effect of perpetuating social inequality among groups - social inequality that was once secured by formal law. Confronted with entrenched and destructive patterns of social and economic stratification, what more can law do to realize democracy for members of subordinated groups? This paper offers some preliminary thoughts on how law should respond, and in particular, what we might ask of judges and the Constitution that they interpret and uphold. The paper presents a normative and descriptive account of "successful" judging in constitutional civil rights cases in a democratic society. By "successful," I mean to describe a style of judging that is self-consciously engaged in the constructive enterprise of giving full meaning and content to minority rights in a manner consistent with the best of the American democratic tradition of freedom and majority rule. Successful judging, then, is judging deliberately styled to realize democracy for subordinated groups in American society. I seek to accomplish three main tasks in this paper. First, I argue for a particular understanding of the judicial role within our constitutional democracy in the contentious area of race relations. Second, I argue that judges committed to realizing democracy for members of socially disfavored groups should embrace an antisubordination interpretation of the Fourteenth Amendment and the Court's equality jurisprudence as a guiding principle of adjudication for constitutional cases that pit the rights and interests of socially disfavored and minority groups against majority rule. Third, I provide a functionalist account for how this idealized style of adjudication works. Drawing upon the insights and impressions of free jazz movement and musician Ornette Coleman in particular, I argue that the hallmarks of Coleman's work - freedom, improvisation, reimagination, and courage - serve as useful points of departure for deepening our understanding of what judges committed to realizing democracy for members of subordinated groups do or ought to do.
    Jacqueline Peel (University of Melbourne) posts Confusing Product with Process: A Critique of the Application of Product-Based Tests to Environmental Process Standards in the WTO, forthcoming in the New York University Environmental Law Journal. From the abstract:
      Countries wishing to achieve environmental protection goals often seek to do so through coupling environmentally-related standards to trade restrictions. These standards may be product-based (e.g. cleaner gasoline with reduced levels of pollutants) or process-based (e.g. tuna caught in a dolphin-friendly manner). Product-based standards coupled to trade restrictions are familiar to federal and quasi-federal systems, such as the US and the EU, which have traditionally applied a proportionality test to determine the legitimacy of such measures. Process-based standards coupled with trade restrictions have not been a feature of federal systems since environmental process standards are generally set by the relevant central government. This is in contrast to the international arena where coupling of process-based standards to trade restrictions has become an issue because of the lack of a strong central environmental authority with the capacity to determine appropriate, universal process standards. Some commentators have suggested that trade measures implementing environmentally-related process standards can be dealt with in the same way as product-based standards, i.e. by applying a proportionality-based test to determine legitimacy. This approach has apparently been adopted by the WTO Appellate Body in its interpretation of the Article XX chapeau in the Shrimp/Turtle dispute. However, product-based tests for legitimacy have significant limitations when translated to a process context. This article examines the move towards the application of product-based tests to environmentally-related process standards in the WTO and critiques such an approach. It argues that failure to recognise the theoretical and practical difficulties created through the application of a product-based approach to process-based standards at the international level has the potential to rule out the possibility of legitimate environmentally-related process-based trade restrictions under the GATT/WTO. This is despite the fact that, in the absence of a central authority with power to determine universal process standards, unilateral efforts may be necessary to prevent environmental degradation through the use of environmentally-harmful methods of process and production.
Additional paper of interest:

Hasen on the Recall Rick Hasen's Election Law Blog has the best coverage of the California recall. This post covers the "if appropriate" question: does the Lt. Gov. have power to place recall alone on the ballot or must the Lt. Gov. include the election of a successor?

A Nobel for Posner Tyler Cowen on the Conspiracy handicaps the Nobel Prize for Economics.

New Issue of Law Probability and Risk The March 2003 issue of Law, Probability and Risk has been published by Oxford. Here are the contents:
    The Error of Expected Loss Minimization by Ronald J. Allen:
      Considerable effort has been expended by legal scholars attempting to apply formal approaches such as Bayes' Theorem or decision theory to various aspects of the litigation process. These efforts consistently fail adequately to account for the reality of the phenomenon being investigated. Most recently, Professor Kaye attempted to give another decision-theoretic account of the standard of persuasion in civil cases. This attempt fails formally, as it requires that litigation involve single issues for decision, which is virtually never the case. It fails pragmatically because it ignores all the surrounding context of the decision rule that colours and gives meaning to the decision rule. Jury trials cannot plausibly be analysed as designed to maximize the expected return to jurors.
    Two theories of the civil burden of persuasion by D. H. Kaye:
      Several judicial opinions and commentators have suggested that the more-probable-than-not burden of persuasion in civil cases reflects a policy of equalizing the rate or risk of factually erroneous verdicts as between plaintiffs and defendants. Concluding an exchange with Ronald Allen, this paper adheres to the view that the legal standard is better understood in terms of minimizing the expected losses due to such errors.
    On selection of the discount rate for actuarial assessment of damages in personal injury litigation in Hong Kong by Wai Sum Chan and Felix Wai Hon Chan:
      When assessing future pecuniary loss in personal injury litigation, courts often award a lump sum amount to compensate the plaintiff for future loss of earnings and to cover future expenses. The discount rate is essential to the actuarial calculation of the award. It is the rate of interest the claimant can be expected to achieve on the lump sum before it is used up. Conventionally, the Hong Kong Courts followed the United Kingdom authorities in many judicial decisions. The Lord Chancellor has recently set the discount rate at 2.5 per cent per annum. However, the Lord Chancellor's decision was based on the economic conditions of the United Kingdom, not of Hong Kong. This paper examines, both theoretically and empirically, the proper discount rate in the context of Hong Kong's local circumstances. We conclude that a rate of 3.5 per cent per annum is more appropriate for Hong Kong.
    Expressing scientific uncertainty by Charles Weiss:
      This paper proposes a subjective scale of scientific uncertainty that allows a source of scientific information to express to a lay audience the subjective level of certainty or uncertainty that it associates with a particular assertion of scientific fact, or to represent the range of expert opinion regarding that certainty or uncertainty. The scale is intended as a tool to help increase the precision and rationality of discourse in controversies in which generalists untrained in natural science must judge the merits of opposing arguments in disputes among scientific experts. It complements the quantitative scale of uncertainty, based on Bayesian statistics, used in the recent report of the Inter-Governmental Panel on Climate Change. Both of these scales are designed for use in situations where the risk probabilities are not precisely known. The scale takes advantage of the fact that there are many more standards of proof recognized in the US legal system beyond the familiar 'criminal' and 'civil' standards of 'beyond a reasonable doubt' and 'preponderance of the evidence', respectively, and that these standards correspond to levels of certainty or uncertainty that constitute acceptable bases for legal decisions in a variety of practical contexts. The levels of certainty or uncertainty corresponding to these standards of proof correspond rather well to the informal scale of certainty used by research scientists in the course of their everyday work, and indeed by ordinary people as they estimate the likelihood of one or another proposition.
    Forensic intelligence and crime analysis by O. Ribaux, A. Girod, S. J. Walsh, P. Margot, S. Mizrahi and V. Clivaz:
      Computerized databases have been developed in forensic science to provide intelligence for the investigator. For example, automated fingerprint identification systems (AFIS) and DNA databases efficiently help identify potential suspects or, particularly for DNA, link crime scenes. Other evidence such as various marks transferred during the offence, items left by the offender (such as clothing or accessories) or information captured through devices such as surveillance cameras could also be exploited systematically to provide similar intelligence. However, if such systems exist under the form of operational databases, they commonly struggle to overcome computational complexities pertaining to the retrieval and comparison of traces from large quantities of data. Thus, the use of forensic case data combined with the temporal and geographical dimensions of the crime is often felt as a necessary development, but the circumstances in which the visualization of traces on maps can help to provide accurate and useful analyses remain to be identified. A limited study will illustrate the potential of forensic case data to provide intelligence through inferences which vary from the traditional model initiated by DNA and AFIS databases. Specifically, it shows that the occurrence of certain characteristics of shoemarks, toolmarks and/or glovemarks can be concentrated in geographical areas and/or during delineated periods of time. These clusters can then be scrutinized to help reveal a series of potentially linked crimes. The experiment confirms that this two-step process, which does not require the implementation of complex computer systems, can be systematically applied as a crime analysis method and as an investigative tool.
    Who sent the e-mail? by Angel Corber?n, Ricard Mart?nez, Francisco Montes and Salvador Roca:
      In mid-October 2001, a number of lecturers at the University of València received insulting, threatening and anonymous electronic mails. An investigation about this fact is only permitted under very restricted conditions, stipulated by Spanish law. Only one judicial authority is able to lift these restrictions and authorize information to be checked in order to obtain enough evidence to unveil who was responsible for the messages. The authors propose in this paper a study for quantifying the weight of certain evidence with a view to show to the judge that the relevance of the said weight would justify such a measure.

Call for Papers: Human Good ­ Dignity, Equality, and Diversity
    "Human Good ­ Dignity, Equality, and Diversity" The XIth Symposium of the International Association of Women Philosophers (IAPh) Goteborg, Sweden 17­19 June 2004 Description:
      Western philosophy has often claimed a universalist patriarchal prerogative during its first two and a half millennia. Today, however, philosophical and feminist dialogues are struggling with boundaries. This generates new conceptual reflections on hitherto neglected or under-theorized aspects of for instance identity, body, sexuality, and community, and aims at a transgression of the traditional separations between politics and philosophy. The XIth Symposium of IAPh wants to welcome critiques and reconsiderations of traditional conceptions of our common human good and the conditions for flourishing human lives in a time of changing global relationships. All information on keynote speakers, roundtable sessions, and workshops will be available on our website. We invite the participants to treat the subject of human good from a variety of divergent philosophical starting points:
        1. Welfare/Flourishing/Group identity/Embodiment 2. Justice and technology/Democracy and human good/Agency in the public sphere 3. Personal relations/Sexuality/Death/Care
    Submission of Abstracts
      Abstracts for papers should be submitted no later than 1st of November 2003, using the form on our website. Abstracts should be written in English. If you prefer to give your paper in German, Spanish or French you should submit two abstracts, one in the chosen language and another in English. In addition you need to give some keywords and a short biography of yourself in English.
    Conference Website: Contact:
      Ulla M. Holm Visiting Professor Department of Gender Studies Box 215 University of Goteborg SE-405 30 Gothenburg Sweden E-mail: Tel.: +46/31/773-1863 Fax: +46/31/773-4199

Thursday, July 24, 2003
Rick Hasen's essay on Findaw, The California Gubernatorial Recall Debate and the Courts: Why Litigation Has Begun (and Likely Will Continue), is a must for those who are interested in this political earthquake. Here is a taste:
    Why is there so much election litigation? One answer is that controversies inevitably arise, and unlike other countries, America lacks a history of nonpartisan, professional elections officials who can resolve them. During the Florida recount controversy, for instance, Democrats derided former Florida Secretary of State (and current member of Congress) Katherine Harris as a party hack who did Bush's bidding. More recently, one commentator has referred to California Secretary of State Kevin Shelley as "the new Katherine Harris," based on a position he had taken with respect to the timing of signature verification of recall petitions in the counties.
And here is another bit:
    The litigation explosion in the election law field only further politicizes the judiciary - particularly when it is plain which party a particular result will favor. When potential winners and losers are clear, and courts end up resolving controversies along party lines, people cannot help but wonder if judges are influenced by their partisan preferences.

Double Standards I am a big fan of wifi. Right now I am blogging from a coffee house in Los Angeles on my tiny Vaio subnotebook with built in wifi. If you've been reading this blog for a while, you know that I am particularly enamoured with blogging live from events like ICANN meetings or Senate hearings--and wifi makes that possible. At the same time, I'm a firm opponent of wifi in the classroom. (Distraction is evil!) So I read with particular interest In the Lecture Hall, a Geek Chorus, a New York Times story by Lisa Guernsey. Here is a taste:
    Over the past year, as wireless networks have been introduced in hotels, university auditoriums and conference halls, people with laptops have realized that they do not have to sit idly during the presentations. Some people, of course, ignore speakers entirely by surfing the Web or checking their e-mail - a practice that has led some lecturers to plead for connectionless auditoriums or bans on laptop use. But others are genuinely interested in a lecturer's topic and want to talk concurrently about what is being said. They may also like to pass around links to Web sites that relate to, and may refute, a speaker's point. For them, wireless technology allows a back channel of communication, a second track that reveals their thoughts and feedback and records it all for future reference.

Another UCC Brett Marston has a nice post on the idea of a Uniform Civil Code in India. Under the current legal regime in India, different laws of marriage, inheritance, and so forth apply to adherents to different religions. The Indian Supreme Court has recently indicated its support for a common civil code, a deeply controversial idea.

Pryor News The amazing Howard Bashman has the scoop.

More on the Lockean Proviso John Eden has some remarks concerning Brad DeLong's critique of Nozick on the Lockean proviso. DeLong's post is here, and my prior post (with links to resources on the web) is here.

Common Minds at ANU The conference in honor of Philip Petit continues today at ANU. Scroll down or follow this link for the schedule and links to the papers.

Mooney on the Theory of Bankruptcy Charles Mooney (University of Pennsylvania) has posted A Normative Theory of Bankruptcy Law: Bankruptcy As (Is) Civil Procedure on SSRN. Here is a taste:
    This paper develops a normative theory of bankruptcy law. The core of the theory is that bankruptcy law exists in order to maximize the recoveries of and benefits for those who have legal entitlements ("rightsholders") in respect of a financially distressed debtor. It recognizes that bankruptcy law in the United States is a branch of civil procedure, in general, and the jurisdiction of federal courts, in particular; hence, I call the theory "procedure theory." Procedure theory holds that it generally is wrong in bankruptcy to redistribute a debtor's wealth away from its rightsholders to benefit third-party interests, such as at-will employees and the general community. It also is wrong to rearrange priorities in bankruptcy as among a debtor's rightsholders in a way that in inconsistent with nonbankruptcy entitlements. Procedure theory explains what bankruptcy law is supposed to achieve. It does not address how bankruptcy law is to achieve its proper ends (e.g., status quo, adoption of market-based or contract-based structures to maximize wealth, etc.). Procedure theory draws support from three perspectives. First, it argues that it simply is incoherent to provide different substantive rules in bankruptcy when those substantive rules are equally applicable outside bankruptcy (e.g., an employer's right to close a plant or a nonbankruptcy priority rule). This incoherence offends notions of justice as well as Dworkin's value of "liberty." Second, procedure theory is supported by the Erie doctrine in federal courts and considerations of federalism. Basic substantive law rules should not vary depending on the forum in which a proceeding is conducted (e.g., state court or bankruptcy court). Third, a public choice analysis reveals the enormous power of the bankruptcy bar over bankruptcy law, as formulated by Congress or as implemented in the courts. The Judiciary Committees in Congress and the bankruptcy courts, populated by bankruptcy mavens, are improper venues for the development of baseline legal principles that are not bankruptcy specific. If there is a justification for bankruptcy law it must be that, as a collective proceeding, it can maximize or enhance recoveries and benefits for rightsholders when compared to nonbankruptcy law. The paper finally examines a number of important features of United States bankruptcy law that conflict with (or at least appear to conflict with) procedure theory. It generally rationalizes procedure theory with several of these features, including the concept of "property of the estate," the "claims" that are recognized in bankruptcy, the "automatic stay," pro rata sharing among creditors, and the trustee's avoidance powers, among others. In several cases procedure theory calls for a modification of current law.

New Papers on the Net Here is today's roundup:
    Elizabeth Garrett (University of Southern California) and Daniel Smith (University of Florida - Department of Political Science) present Veiled Political Actors: The Real Threat to Campaign Disclosure Statutes. From the abstract:
      Disclosure statutes have not been the focus of much scholarly attention, particularly in the legal academy. This lack of attention is unfortunate because the design of disclosure laws is crucial in several ways. First, the constitutional test applied to campaign finance laws, including disclosure, requires that statutes be narrowly tailored to serve an important state interest. In addition, targeting is important for the effectiveness of disclosure laws. Voters have limited time and attention, so they should be provided the information most crucial to improving their ability to vote consistently according to their preferences. Finally, current experience with campaign regulation demonstrates that entities adopt strategies to circumvent restrictions, so statutes must be drafted to reduce opportunities for evasion. This study sheds light on some of the evasive tactics by political entities that wish to avoid disclosure relating to the source and extent of their spending on ballot questions. These veiled political actors (VPAs) take advantage of regulatory loopholes to spend substantial amounts of money to influence the outcomes of initiative and referendum elections while avoiding publicity of their efforts. Part I describes the interest served by disclosure beyond enforcing other campaign finance regulations or exposing quid pro quo corruption of candidates. We argue that improving voter competence is the most persuasive rationale in direct democracy and leads to various conclusions about the structure of effective disclosure laws. In Part II, we assess the jurisprudence relating to disclosure statutes in direct democracy to provide a sense of the legal hurdles such statutes must overcome, hurdles that become more daunting the more burdensome disclosure is for political actors. The jurisprudence suggests that targeted disclosure statutes will survive judicial scrutiny. Part III presents our description and analysis of various VPAs organized under federal and state laws that are used currently to evade disclosure restrictions in initiative campaigns. Part IV provides preliminary conclusions.
    Gillian Triggs and Dean Bialek (University of Melbourne) upload The New Timor Sea Treaty and Interim Arrangements for Joint Development of Petroleum Resources of the Timor Gap, forthcoming in the Melbourne Journal of International Law. From the abstract:
      Under the Timor Sea Treaty of 2002, Australia and the newly independent East Timor have agreed upon joint development of the petroleum resources of the disputed Timor Gap. Until this treaty comes into force, an Exchange of Notes applies the terms of the 1989 Timor Gap Treaty, with Australia and East Timor as the implementing parties. Since gaining independence, East Timor has argued that under current principles of international law, it is entitled to a greater share of the Timor Sea's oil and gas resources than is suggested by the boundaries of the Timor Sea Treaty's Joint Petroleum Development Area ("JPDA"). Principally, East Timor asserts that the western and eastern lines defining the JPDA are ill-founded at international law, a claim that has immediate implications for the joint venture partners in the Greater Sunrise fields that straddle the JPDA's eastern boundary. This paper examines the legal background to the Timor Gap dispute, the agreements that have regulated resource exploitation of the area since 1989, the validity of the respective seabed rights of Indonesia, Australia and East Timor and finally, the impact of Australia's recent withdrawal of maritime boundary disputes from the jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea.
    John McGinnis (Northwestern University) posts The Appropriate Hierarchy of Global Multilateralism and Customary International Law: An Example from the WTO. From the abstract:
      This essay addresses the conflict between international rules formed through global multilateral agreements, like the WTO, and customary international law. It challenges the venerable view that no absolute hierarchy between global multilateral agreements and customary international law exists. In my view, global multilateralism takes precedence over customary international law, because the multilateral treaty process is more likely than customary international lawmaking to produce legitimate and beneficent norms. Multilateral agreements, like a legislative process, can generate precise rules and facilitate compromises by permitting tradeoffs among different provisions. Moreover, multilateral agreements are generally ratified in a manner that provides better assurance that they represent the views of nations' citizens, providing more robust legitimacy and reducing agency costs. In contrast, the process of discovering customary international law is fraught with difficulty and uncertainty, resulting in principles with vague contours. Moreover, the legal academics and international courts that announce the content of customary international law can provide little assurance that their views represent the consensus of the states, let alone the peoples of the world. Thus, unless clearly otherwise stated in the text of a multilateral agreement, the agreement should trump customary international law. I also provide a concrete illustration of the appropriate priority of multilateral agreements over customary international law by discussing the relation between the WTO regime and the precautionary principle. The precautionary principle generally empowers government to regulate risks to prevent quite speculative harms. Some have suggested that the precautionary principle can be used to supplement - indeed to override - otherwise applicable principles of the WTO. But the process from which the WTO emerges has advantages over the customary law process from which the precautionary principle emerges, providing us with greater confidence in the beneficence of these rules. The multilateral trade treaty process generates relatively fixed rules whose ratification in a domestic process focuses public attention on their content, thereby reducing agency costs. Moreover, these rules have real consequences for countries because of the WTO's dispute resolution mechanism, and those consequences make nations treat their assent as a serious matter. In contrast, the precautionary principle has not emerged from a deliberative process with real consequences. Moreover, the evidence from which publicists infer the precautionary principle is much less likely to reveal the preferences of nations' citizens.
    Stefan Kirchner (University of Giessen - Public, International and European Law) posts The Case of the 'Detainees' in Camp X-ray at the U.S. Naval Base in Guantanamo Bay (Cuba) Before the Inter-American Commission on Human Rights. From the abstract:
      The paper examines the legal status of the persons, the so called "detainees", held in the Guantanamo Bay Naval Base in connection with the 9/11 terrorist attacks and the subsequent war in Afghanistan based on a ruling by the Inter-American Commission for Human Rights. A difference is made between members of the regular forces of the then Emirate of Afghanistan and members of the Al Quaida terrorist network. Based on the results, the paper continues to examine the legality of the treatment the "detainees"/POWs received while in U.S. custody in Guantanamo Bay.
    Linda Christine Fentiman (Pace) posts Patient Advocacy and Termination from Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, forthcoming in the Nebraska Law Review. From the abstract:
      This article examines the impact of state laws aimed at protecting health care professionals. During the last decade, as managed care has profoundly changed the way that health care is delivered in the U.S., many patients have complained about denial of care and their inability to challenge those denials. At the same time, some physicians have taken on the role of advocate, arguing on their patients' behalf for more and better care. More than fifteen states have enacted laws declaring that health care professionals (HCPs) cannot be terminated from or otherwise penalized by managed care organizations (MCOs) because of their advocacy. The article explores the history, implementation, and impact of these state advocacy protection statutes, looking at both substantive and procedural obstacles to their enforcement. The article is in four parts. The first section provides an introduction to the concept of advocacy and fiduciary duty, both at common law, and as presently interpreted. This introduction also looks at the phenomenon of HCPs' "deselection," i.e., the termination or non-renewal of HCP contracts with MCOs, emphasizing that the plural of anecdote is not data. The second section surveys the legislative and common law landscape surrounding HCP advocacy, and then examines state statutes that either explicitly or implicitly protect HCP advocacy on behalf of patients. The article next considers whether advocacy protection laws have achieved their purposes, given the substantial theoretical and practical barriers to their implementation, and discusses both ERISA and Medicare preemption as potential hurdles to successful litigation. I conclude that advocacy protection laws have had only a limited in terrorem effect, making it somewhat harder for MCOs to terminate HCPs who advocate for their patients. I argue that current laws are inadequate to ensure that health care professionals will vigorously advocate for their patients, and suggest alternative means to encourage and support patient advocacy, in order to enhance the quality of health care.
    Amitai Aviram (George Mason) and Avishalom Tor (Harvard University - John M. Olin Center for Law, Economics and Business ) post Impediments to Information Sharing among Competitors: A Behavioral and Economic Analysis. From the abstract:
      When deciding whether to share information, firms consider the effects of information sharing on their private welfare. Discrepancies between social and private welfare may lead firms to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem that antitrust scholarship and case law have paid much attention to. While the analysis of anticompetitive coordination among competitors is quite sophisticated, however, law and economics scholarship has paid far less attention to another important type of discrepancy between the socially optimal and the likely private level of information sharing among competitors - namely, the problem of sub-optimal information sharing. This discrepancy can generate significant social costs and is of special importance in network industries because the maintenance of compatibility, a key to producing positive network effects, typically requires information sharing. This paper therefore seeks to advance the scholarly understanding of impediments to efficient information sharing in a number of significant ways: First, it shows that the strategic behavior of competitors may erect an economic barrier to information sharing that has not been previously addressed in the literature - the fear of degradation. This form of strategic behavior involves the strategic refusal to share information when the refusal inflicts a greater harm on one's rivals than on oneself, and thus generates a competitive advantage. Second, the paper reveals a hitherto unrecognized set of behavioral impediments to information sharing, with established rivalry norms and managers' risk attitudes biasing competitors' judgments of the prospects of information sharing and the status-quo bias and ambiguity aversion leading them to avoid the limited cooperation required by such arrangements. Third, it integrates these economic and behavioral insights with the findings of the extant literature to create a new framework for predicting when private information sharing will be suboptimal. Finally, we provide some tentative suggestions for aligning private information sharing with social optimality based on the framework developed here.
    Margaret Blair (Georgetown) and Lynn Stout (UCLA) post A Team Production Theory of Corporate Law, forthcoming in the Virginia Law Review. From the abstract:
      Contemporary corporate scholarship generally assumes that the central economic problem addressed by corporation law is getting managers and directors to act as loyal agents for shareholders. We take issue with this approach and argue that the unique legal rules governing publicly-held corporations are instead designed primarily to address a different problem - the "team production" problem - that arises when a number of individuals must invest firm-specific resources to produce a nonseparable output. In such situations team members may find it difficult or impossible to draft explicit contracts distributing the output of their joint efforts, and, as an alternative, might prefer to give up control over their enterprise to an independent third party charged with representing the team's interests and allocating rewards among team members. Thus we argue that the essential economic function of the public corporation is not to address principal-agent problems, but to provide a vehicle through which shareholders, creditors, executives, rank-and-file employees, and other potential corporate "stakeholders" who may invest firm-specific resources can, for their own benefit, jointly relinquish control over those resources to a board of directors. This alternative to the principal-agent approach offers to explain a variety of pivotal doctrines in corporate law that have proven difficult to explain using agency theory, including: the requirement that a public corporation be managed by a board of directors rather than by shareholders directly; the meaning and function of a corporation's "legal personality" and the rules of derivative suit procedure; the substantive structure of directors' fiduciary duties, including the application of the business judgment rule in the takeover context; and the highly-limited nature of shareholders' voting rights. The team production model also carries important normative implications for legal and popular debates over corporate governance, because it suggests that maximizing shareholder wealth should not be the principal goal of corporate law. Rather, directors of public corporations should seek to maximize the joint welfare of all the firm's stakeholders - including shareholders, managers, employees, and possibly other groups such as creditors or the local community - who contribute firm-specific resources to corporate production.
And here are some additional papers of interest:

Marmour on Fairness & the Justification of Democratic Procedures Andrei Marmour (Southern Cal) has posted an essay entitled Autonomy, Equality, and Democracy. Here is the abstract:
    The purpose of this essay is to argue that considerations of fairness play an essential role in the justification of democratic decision procedures. The first part argues that considerations of fairness form part of a practical authority's legitimacy, and that in the political context, those considerations of fairness entail a principle of equal distribution of political power. Subsequently, the article elaborates on the kind of equality which is required in democratic procedures, arguing that different principles of equality should apply to the deliberation and the decision stages of democracy. Finally, the article concludes with a few sketchy remarks on the possible relations between considerations of fairness and soundness of democratic procedures.
And Marmour has two more new papers: The Rule of Law and Its Limits & Entitlement to Land and The Right of Return: An Embarrassing Challenge for Liberal Zionism.

Wednesday, July 23, 2003
New Papers on the Net Here is today's roundup:
    Richard Frase (University of Minnesota) posts Limiting Retributivism: The Consensus Model of Criminal Punishment, forthcoming in THE FUTURE OF IMPRISONMENT IN THE 21ST CENTURY, Michael Tonry, ed., Oxford Univ. Press, December 2003. Here is the abstract:
      This paper argues that Norval Morris' theory of limiting retributivism should be recognized as the consensus model of criminal punishment. Some version of Morris' approach is embodied in the current sentencing regimes of almost all American states, even sentencing guidelines regimes expressly founded on a Just Deserts model, and in many nations, both in common law and civil law legal systems. Limiting retributivism is popular with practitioners, and makes good sense as a matter of policy, because it strikes an appropriate balance between the conflicting punishment goals and values which are recognized in almost all western countries. The theory accommodates retributive values (especially the importance of limiting maximum sanction severity) along with crime-control goals such as deterrence, incapacitation, rehabilitation, and denunciation. It also promotes efficiency, and provides sufficient flexibility to incorporate victim and community participation, local values and resource limitations, and restorative justice programs. Recognizing and promoting a consensus model based on Morris' theory would have considerable value; the theory enjoys widespread support, provides a principled basis to resist persistent political and media pressures to escalate sanction severity, and gives researchers and sentencing policy makers in diverse systems a common framework within which to compare, evaluate, and reform sentencing practices.
    Brett McDonnell (University of Minnesota) posts The Ambiguous Virtues of Federalism in Corporate Law. Here is the abstract:
      Recent contributions to the literature on U.S. corporate federalism question whether any competition between states actually exists for corporate charters. The existence of network effects calls into question whether serious competition is possible or even desirable. This paper argues that network effects do limit competition, but some competition does remain, and it is desirable. One benefit is that competition provides a range of laws, with differing laws appealing to differing business organizations. State competition also still encourages increased legal innovation and adaptation. It is probably true that most states other than Delaware do not actively compete to become a destination for corporate charters. However, all states still have good reasons for updating their corporate laws to better serve the companies which do incorporate within their jurisdiction. Delaware has strong incentives to respond to improvements made by other states. All states also get an important informational benefit from state competition - they can observe how forty-nine other states are adapting their laws, and how companies respond to those changes. The federal government also makes much important corporate law, and the threat of federal intervention limits what Delaware can do. Since the federal government is likely to be somewhat less pro-management than Delaware, its presence helps stop overly pro-managerial developments in state law while still leaving room for much lawmaking and experimentation at the state level. The federal system of incorporation thus does a rather elegant job of achieving the efficiencies of network effects while still remaining dynamic and flexible. But the achievement is always messy and ambiguous, because there is no good way to achieve everything which we would like to achieve in setting corporate law.
    Lucian Bebchuk (Harvard Law School) posts Shareholder Access to the Ballot. From the abstract:
      The SEC is now considering requiring public companies to include in their proxy materials candidates for the board that would be nominated by shareholders. This paper argues that the case for such reform is very strong. Analyzing each of the objections that have been raised against such shareholder access, I conclude that none of them, nor all of them in combination, provide a good basis for opposing shareholder access. The case for shareholder access is a strong one.
    Ethan Leib (Yale University - Department of Political Science & School of Law) posts Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability, forthcoming in the Whittier Law Review. From the abstract:
      The feast of the republican revival in the law reviews is long over, and one is more likely to encounter a commemorative symposium upon the anniversary of its death than a celebration of its continued vitality in legal scholarship. But this article mines the republican discourse for its oversights. Investigation into its relationship with the Guarantee Clause, the one place in the Constitution directly allocated to republicanism, reveals little attempted in the way of integration, largely because the Guarantee Clause literature is even more dead than the republican revival literature. This article tries to resuscitate both legal republicanism and the Guarantee Clause by creating a lichen, where what is left of each can help the other thrive, albeit parasitically. The article reawakens the naive view that legislatures can sometimes embody what is good about republicanism - deliberative processes, producing outcomes that public choice or courts might not. Accordingly, given the current state of Commerce Clause and Enforcement Clause jurisprudence, neo-republicans would be well advised to shift their attention away from the courts to the constitutional justifications for Congress to act in service of republican ends. The article argues that the jurisprudence of the Guarantee Clause leaves room for near plenary action by Congress under its ambit. Thus, republicans should encourage Congress to instantiate its own ideas about republicanism through a legislative power this article finds vested by the Guarantee Clause. If Congress were to exercise the powers that the Court generally indicates are rightfully its own under the Guarantee Clause, the Court would likely be encouraged to tailor a jurisprudence of the Guarantee Clause and grant the justiciability it has been generally denying since Luther v. Borden. A scheme, indeed.
Additional papers of interest:

Empirical Evidence on the Effect of Peer to Peer on Recorded Music Sales Stan Liebowitz (University of Texas at Dallas - School of Management) has posted Will MP3 downloads Annihilate the Record Industry? The Evidence so Far on SSRN. Here is the abstract:
    This paper investigates the impact of unauthorized downloading of MP3 files on the recording industry. Although the no longer extant Napster was the most famous system used for such downloading, its progeny have continued to allow millions of music listeners to download music (and other) files without remuneration to the copyright owners. Using data on the historical sales of prerecorded music I examine in detail the recent decline in record sales and attempt to gauge the importance of various alternative factors that have been put forward to explain this decline. I conclude that the evidence supports a claim that MP3 downloads decrease sales.

Sunstein on the Value of Life Cass Sunstein (University of Chicago) has posted Lives, Life-Years, and Willingness to Pay on SSRN. Here is the abstract:
    In protecting safety, health, and the environment, government has increasingly relied on cost-benefit analysis. In undertaking cost-benefit analysis, the government has monetized risks of death through the idea of "value of a statistical life" (VSL), currently assessed at about $6.1 million. Many analysts, however, have suggested that the government should rely instead on the "value of a statistical life year" (VSLY), in a way that would likely result in significantly lower benefits calculations for elderly people, and significantly higher benefits calculations for children. I urge that the government should indeed focus on life-years rather than lives. A program that saves young people produces more welfare than one that saves old people. The hard question involves not whether to undertake this shift, but how to monetize life-years, and here willingness to pay (WTP) is generally the place to begin. Nor does a focus on life-years run afoul of ethical limits on cost-benefit analysis. It is relevant in this connection that every old person was once young, and that if all goes well, young people will eventually be old. In fact, a focus on statistical lives is more plausibly a form of illicit discrimination than a focus on life-years, because the idea of statistical lives treats the years of older people as worth far more than the years of younger people. Discussion is also devoted to the uses and limits of the willingness to pay criterion in regulatory policy, with reference to the underlying welfare goal and to the nature of moral and distributional constraints on cost-benefit balancing.

Pryor The NYT has an editorial opposing confirmation of William Pryor to a seat on the Eleventh Circuit. Here's a taste:
    Mr. Pryor, who has been nominated for a seat on the Federal Court of Appeals for the 11th Circuit, based in Atlanta, has views that fall far outside the political and legal mainstream. He has called Roe v. Wade, the landmark abortion-rights ruling, "the worst abomination" of constitutional law in our history. He recently urged the Supreme Court to uphold laws criminalizing gay sex, a position the court soundly rejected last month. He has defended the installation of a massive Ten Commandments monument in Alabama's main judicial building, which a federal appeals court recently held violated the First Amendment. And he has urged Congress to repeal an important part of the Voting Rights Act.
I haven't followed this nomination closely and I'm pretty sure that I disagree with Pryor about a wide variety of issues. So I am certainly not endorsing his nomination, but the New York Times is surely wrong to say that opposing Roe and Lawrence is outside the political and legal mainstream. These are deeply controversial decisions, and respected constitutional scholars of all political persuasions have expressed grave doubts about their soundness as a matter of law.

What's Up Doc? If you are interested in cyberlaw and the future of the Internet and open source software, a post entitled Saving the Net by Doc Searls on Linux Journal is a must. Here is a taste:
    Who Owns What? That's the fundamental question, and it's going to get more fundamental as we roll toward the next presidential election here in the US. Much is at stake, including Linux and its natural habitat: the Net. Both have been extraordinarily good for business. Its perceived "threat" to Microsoft and the dot-com crash are both red herrings. Take away Linux and the Net, and both technology and the economy would be a whole lot worse. Both the Net and Linux were created, grew and flourished almost entirely outside the regulatory sphere. They are, in a literal sense, what free markets have done with their freedoms. Yet, there are some who do not care. Unfortunately, they're driving the conversation right now. Hollywood has lawmakers and news organizations convinced that file sharing is "piracy" and "theft". Apple, Intel and Microsoft are quietly doing their deals with the Hollywood devil, crippling (or contemplating the crippling of) PC functionalities, to protect the intellectual property of "content producers".
There's a lot more interesting material and discussion. Surf's up, so catch a link.

Common Minds at ANU Tomorrow and Friday, the Philosophy Program of the Research School of Social Sciences at the Australian National University is presenting a conference titled Common Minds in honor of the very distinguished Philip Petit (long at ANU and now at Princeton). Here is the program with links to the papers:

Tuesday, July 22, 2003
Oxford Journal of Legal Studies The Summer 2003 issue is available online here. Here are the contents with links and abstracts:
    John Gardner, The Mark of Responsibility:
      This paper tackles three common misconceptions about responsibility. The first misconception is that it is against our interests to be responsible for our actions. The second is that our responsibility for our actions is fixed at the time when we act. The third is that we can only be responsible to someone in particular, not responsible full stop. The three misconceptions turn out to be related, and disabusing ourselves of them helps us to rediscover the most fundamental point of the courtroom trial.
    Adam Kramer, Common Sense Principles of Contract Interpretation (and how we've been using them all along):
      This article proposes to take seriously Lord Hoffmann's influential restatement of the rules of contractual interpretation. Consequently, it seeks to investigate the 'common sense principles by which any serious utterance would be interpreted in ordinary life', with the aid of theoretical insights from psycholinguistics, pragmatics and the philosophy of language. Such an investigation provides a principled explanation for some of the key features of our legal rules of interpretation, such as the objective principle and the importance of the factual matrix and the parties' reasonable expectations. It is shown that the intended meaning of a contractual document goes far beyond the ordinary linguistic meaning of the document, and even far beyond the information that crossed the drafter's mind. The common sense principles are then used to explain some key cases on the interpretation of contracts.
    James Allan, A Modest Proposal:
      In this article the author reviews the recent exchange in this Journal between David Dyzenhaus and Matthew Kramer on the merits of legal positivism. He then offers his own modest proposal regarding future debates on that topic.
    Samantha Besson, Four Arguments Against Compromising Justice Internally:
      This article examines whether legal compromise on matters of justice amounts to a desirable response to the problem raised by reasonable pluralism in politics. Attitudes toward compromise are ambiguous: it is generally seen as much as a valuable technique for settling conflicts by mutual accommodation as a prejudicial concession of one's integrity. The article aims to resolve this paradox by distinguishing cases where compromises of principle cannot be tolerated from those in which they can be. By developing Ronald Dworkin's distinction between internal and external compromises, the article shows that an internal compromise, that combines different conceptions of the same principle or of incommensurable and non-distinct principles, constitutes at the most a second-best alternative. Such a compromise fails to capture the core of our sense of law's intelligibility, justice, correct concept attribution and, finally, political integrity. By contrast, it is argued, external compromises of principle can be tolerated and may even be desirable in some cases. In fact, many conceptions of external compromise regard democracy as a paradigm of political compromise. This view is assessed at the end of the article and it is suggested that democratic procedures can be understood as compromises qua process: they select one of the conflicting views held during deliberation, rather than necessarily combining them into an externally compromised outcome.
    Ofer Raban, Dworkin's 'Best Light' Requirement and the Proper Methodology of Legal Theory:
      This is an examination of Ronald Dworkin's claim that the true theory of legal practice is the theory that puts legal practice in its 'best light'. By 'best light' Dworkin means a measure of desirability or goodness: the true theory of legal practice, says Dworkin, portrays the practice at its most desirable. Now why would that be the case? What's between the desirability of a theory and its truth? The article examines the reasons leading Dworkin to this strange claim. It then argues that the claim is ultimately unsustainable, but also that it contains much insight about legal practice: the true theory of legal practice need not put the practice at its most desirable, but there is much between maximizing desirability and the practice's standards. Dworkin's is another important effort to explain the normative aspect of legal validity-in a way that transcends both the crudeness of natural law, and legal positivism's attempt to wash its hands of this crucial aspect of law.
    Sir John Laws, Beyond Rights:
      Inter-personal morals should be understood and described in the language of duties, not rights. Rights are self-centred, duties other-centred. Whereas duties are primarily a moral construct, rights are primarily a legal construct. There is an important distinction between the language appropriate for inter-personal morals, and the language appropriate for the morals of the State. The first principle of the morals of the State is that the State holds its power as trustee for the people; otherwise we would face arbitrary and capricious rule. In this setting it is natural and proper to speak of rights-the rights of the citizen beneficiaries against their trustee, the State. However, inter-personal morals and the morality of the State are inter-dependent. Without a duty-based personal morality, the laws which the State makes will tend more and more to be oppressive and contemptuous. And the laws of the State must themselves leave room for personal moral commitment, freely entered into, to flourish.
    Stefan Enchelmaier, Supremacy and Direct Effect of European Community Law Reconsidered, or the Use and Abuse of Political Science for Jurisprudence, no abstract.
    Richard Mullender, Tort, Human Rights, and Common Law Culture, no abstract.
    Déirdre Dwyer, Beyond Autonomy: The Role of Dignity in 'Biolaw', no abstract.
    Robert Schütze, Dynamic Integration-Article 308 EC and Legislation 'in the Course of the Operation of the Common Market': A Review Essay, no abstract.

Monday, July 21, 2003
The Internet and the Academy
    Introduction Henry Farrell has a post this morning on his excellent list of scholar bloggers on Crooked Timber. And while surfing this wekkend, I cam across Stephen Johnson's slate essay on Google, which makes the following claim:
      Google is beginning to have a subtle, but noticeable effect on research. More and more scholarly publications are putting up their issues in PDF format, which Google indexes as though they were traditional Web pages. But almost no one is publishing entire books online in PDF form. So, when you're doing research online, Google is implicitly pushing you toward information stored in articles and away from information stored in books. Assuming this practice continues, and assuming that Google continues to grow in influence, we may find ourselves in a world where, if you want to get an idea into circulation, you're better off publishing a PDF file on the Web than landing a book deal.
    And Daniel Drezner replies:
      Johnson sets this up as an either/or question -- online papers or books. In point of fact, for most academics this is a progression. First you circulate your ideas in draft form, then as a conference paper, then as an article, and then -- maybe -- publish a book. The book stage depends on the discipline -- for example, they matter far less in economics than in political science. However, this was true long before Google. The only thing the Internet and its search engines has changed is widening the access to papers at the preliminary stages of development.
    The Legal Academy Went Online in the Early 1980s But I don't think that Drezner is right. I am a legal academic, and the legal academy went online in a major way in the early 1980s when the online legal research services (Westlaw and Lexis/Nexis) began to put virtually all new legal scholarship online. Althought these services uploaded the back issues of a few major journals (e.g. Harvard Law Review, Yale Law Journal), for the most part, if it wasn't written after 1980, it doesn't exist on the online databases. The situation in other disciplines still isn't comparable. Although many scholarly journals in political science, economics, philosophy, and history are beginning to go online, many are accessible only by subscribers. Here is the scary part. Because Westlaw and Lexis/Nexis are so efficient and easy to use, they have for the most part replaced other methods of research for many--I would guess most--legal scholars. [Remember that for legal scholars, their primary sources (opinions, statutes, rules, legislative history) are also on the same databases--unlike the law journals, going back all the way.] So for many kinds of legal scholarship (not legal history or law and economics), if it isn't online it doesn't exist. Not quite true. Very famous articles still exist--because their traces exist online in the form of multiple citations that a responsible researcher cannot ignore.
    SSRN But SSRN (an online searchable repository of working papers and forthcoming papers) has begun to change all this. (Similarly, Online Papers in Philosophy is making a wide variety of philosophy papers accessible (but not searchable) in a central location.) Orin Kerr posted on this a while back. He wrote:
      It's likely that other people have said this before -- my apologies if so -- but sites like Larry Solum's outstanding Legal Theory Blog make me wonder about how blogs and websites like SSRN will change how ideas spread in the legal academy. The traditional model is that an author writes an article, sends it out to 40 or 50 law reviews, and then the prestige of the law review that accepts the piece for publication plays an important role in determining the audience for the author's ideas. Place an article in the Harvard Law Review, and the (legal academic) world will read it. Place it in the Podunk College Journal of Law and Dental Science, and the audience will be smaller and its influence less. In most cases, the placement determines the article's audience, and therefore its influence. Websites like SSRN have helped democratize the process by making all articles available without prescreening. But that creates a problem: journal placements can act as a rough proxy for quality. (I should emphasize rough-- but that's another post altogether.) Without journal placements, it can be harder to wade through articles trying to figure out what's good and what's not so good. Of course, many of the law-related articles on SSRN are also placed in law reviews, so you can see the placement when you view the abstract of the article. But to see that, you have to go looking, which takes at least a little time. Blogs seem to solve the screening problem, or at least to minimize it. The host of the blog acts as the screener. For example, if Larry Solum says that an article is a must-read, I figure it's probably worth reading. At the very least, I'll factor his recommendation into my level of interest in reading the article. And with other blogs out there that can link to the articles as well (with many more coming soon, no doubt), plus all of the discussion that can go into explaining why an article is good or bad, you end up with an increasingly active and deep discussion of what's good and what's no-so-good. In time that discussion may exert a considerable influence over how ideas spread within the legal academy. And even better, the format is equally open to people from outside the academy who want to read about the latest scholarship, blog about it, or even write it. It's not hard to imagine a future in which by the time an article is actually published in a law review, the article will have already run its course online thanks to blogs and SSRN.
    I am not sure whether or not Kerr is right. (And I am sure he is way too generous to me.) But he might be right. We may be in the midst of an important and profound change. The Internet and Google reduce the cost of finding information dramatically. Although the Internet as we know it (the post, eBay, and Google Internet) is still its infancy--less than 5 years old, it has already begun to dramatically affect the way research is done. Will there come a day when scholars in many disciplines will say, "if it isn't on the Internet, it doesn't exist"? I don't think this is farfetched.
    The Economics of Research Research is cheaper if text is searchable. I'm sure that many will disagree with the following statement, but I'm sure it is true. Reading whole books are articles in order to figure out whether they have relevant material is a huge waste of resources. There is an ethos in academia which more or less requires one to read certain journals and books in order to have scholarly credibility. But this ethos developed in a context, and that context predates searchable text. It's good to read widely, but it's bad to read wastefully. The economics of searchable text create enormous incentives for researchers (in much of the social sciences and humanities) to adopt "if it isn't on the Internet, it doesn't exist" as a working principle. And knowledge of that fact gives scholars a similarly big incentive to get their stuff online in searchable form.
    Going Out On A Limb I predict that the day of internet-only research is coming--although I also suspect that it will take a full generation of scholars for internet-only research to become the norm. But for this day to come, the content must be available on the Internet is searchable form. SSRN is one model. Papers on SSRN can be accessed by anyone without charge. Many articles are published on SSRN in final or near final form--down to the pagination that will appear in the journal. Some books are published on SSRN. (For an example, go to SSRN and search for Shavell. You will find his recent book uploaded chapter by chapter.) Perhaps some other model will eventually dominate. Papers can be self-published or published by colleges and universities. Journals may morph into online only eJournals. Predicting the future is likely to be embarassing, but . . . But, I think a big change is underway. Predictions of demise of the book were premature, and as a book lover, I hope that books survive forever. But as research tools, books that are not searchable online cannot compete with materials that are searchable online. Academic authors are already beginning to realize this, and hence to make copies of their books available online.
    The Ledger And will these changes be for good or for ill? It will be different, that's for sure. Here are some things I already miss. I miss browsing the library shelves. I miss browsing the journal stacks. I miss reading a whole book that I thought was relevant to my project, learning it had nothing helpful for that project but discovering something new and delightful. I miss paper. And here are some new things I relish. I relish the sheer quantity of new ideas that I discover by reading most of the new legal scholarship abstracts on SSRN. I relish the wonderful semi-random connections I make to new idea by doing Google searches and following links. I relish the much more personal way I relate to colleagues that I communicate with online (as opposed to on paper). I relish the speed of a Google search. I relish the ability to reach hundreds of readers with a new article in a few days. I relish the prospect of being able to search monographs and non-law journals with Google or something else. Paradigm shift is an overused and tawdry expression. I prefer to say "change." I relish change.

Barnett on the Second Amendment Randy Barnett (Boston University) has posted Is the Right to Keep and Bear Arms Conditioned on a Militia? on SSRN. Here is the abstract:
    Those who dismiss the contemporary relevance of the Second Amendment have shifted their historical argument. They once strongly contended that, unlike the rest of the Bill of Rights, the Second Amendment originally protected a "collective" right of states to maintain their militias. In the face of historical evidence that the Second Amendment protected an individual right, they now with equal confidence contend that, while the Amendment does indeed protect an individual right, its exercise is conditioned on the existence of and participation in a state militia. In this article, I respond to the latest presentation of this theory by H. Richard Uviller and William G. Merkel in their book, The Militia, and the Right to Arms, or How the Second Amendment Fell Silent (Duke, 2002), by showing how they overlook crucial evidence of original meaning to reach their conclusions.
    In particular, I address the now-popular claim that "bear arms" was exclusively a military term. I discuss their claim that the structure of the text dictates that the "right to keep and bear arms" is conditioned on and qualified by the preface affirming the importance of a "well-regulated militia." I explain how they ignore evidence that the "privileges or immunities of citizens of the United States" protected from state infringement by the Fourteenth Amendment included a strictly individual right to keep and bear arms. I note that, despite their numerous unsupported assertions to the contrary, every contemporary Second Amendment scholar thinks that the right to bear arms is no more absolute and immune from regulation than, for example, the rights protected by the First Amendment. Finally, I show that - even if the right to arms was conditioned on the continued existence of the militia - the militia continues to exist as a matter of positive law and it went into action as recently as September 11, 2001.
Barnett is one of our preeminent constitutional theorists and his scholarship on the Second Amendment has been hugely influential. Download it while it's hot.
Update: Greg Goelzhauser comments on Barnett here, and Barnett replies here. And Barnett has more on the Second Amendment and the militia as guest blogger on

New Papers on the Net Here is today's roundup:
    J. A. Weymark posts The normative approach to the measurement of multidimensional inequality:
      This article provides an introduction to the normative approach to inequality measurement. Multivariate generalizations of the procedures used to construct univariate inequality indices from social evaluation orderings are described. Axiomatizations of multivariate Atkinson, Kolm– Pollak, and generalized Gini indices are discussed. Maasoumi’s [Econometrica (1986)] two-stage procedure for constructing a multivariate inequality index is critically examined. A dominance criterion proposed by Tsui [Social Choice and Welfare (1999)] that takes account of the correlation between the distribution of attributes is also considered.
    Yujin Nagasawa, Moral Evil and Human Freedom: A Reply to Tierno:
      Many theists believe that the so-called ‘free will defence’ successfully undermines the antitheist argument from moral evil. However, in a recent issue of Sophia Joel Thomas Tierno provides the ‘adequacy argument’ in order to show an alleged difficulty with the free will defence. I argue that the adequacy argument fails because it equivocates on the notion of moral evil.
    Dietrich Murswiek (Albert Ludwigs Universit?t Freiburg, Institute of Public Law) posts The American Strategy of Preemptive War and International Law. From the abstract:
      The article analyzes the American war on Iraq in its context with the U.S. National Security Strategy and its possible consequences for the development of public international law. The attack on Iraq without U.N. consent is illegal. A mandate for military actions against Iraq cannot be derived from existing Security Council resolutions. Unilateral use of military force can only be justified by self-defence. Anticipatory self-defense is only allowed, if the government can proof that a threat of an armed attack is imminent and leaves no choice of other means than military self-defense and no time to apply to the Security Council. In the present Iraq crisis the U.S. government cannot meet these criteria. By claiming a right to preemptive action, the U.S. government is pushing a change in public international law. If other States don't object a beginning practice of preemptive war, there could emerge a new rule of public international law that allows preemptive wars. Such a rule would leave it within the subjective discretion of each individual State to decide, whether another State is to be qualified as a "rogue State", poses a threat to international peace and can legally be attacked. Nobody wants a new rule to become law, which would allow nearly every State to wage war against a lot of other States. Actually, the U.S. claims the right to preemptive action exclusively for itself. If the U.S. is successful in promoting this exclusive right to preemptive self-defense, then the fundamental principle of sovereign equality of States will be overthrown.
    Susan Brenner (University of Dayton) posts Complicit Publication: When Should the Dissemination of Ideas and Data Be Criminalized, forthcoming in the Albany Law Journal of Science & Technology, forthcoming in the Albany Law Journal of Science & Technology. From the abstract:
      This article is about using criminal prohibitions to control the dissemination of ideas and information. It begins by considering the history of the criminalization of the content of speech in Anglo-American society. The article points out that English law criminalized the dissemination of certain types of speech in reaction to the proliferation of the printing press. Printing, which gave rise to the widespread dissemination of speech and the anonymization of speech, was perceived as a threat to the social fabric of English society. That society reacted by creating new offenses: blasphemy, seditious libel, obscenity and criminal libel. The article traces the evolution of these offenses in English and American law and finds that most of them (obscenity being the exception) fell into disuse over the next several centuries. The criminal remedies fell into disuse because printing (and, later, radio and television) became subject to certain pragmatic constraints, empirical filters, which reduced the likelihood that these types of media would be used for disruptive purposes. The article argues that while speech was theoretically free, it was technically constrained so that, for example, hate speech and potentially dangerous information were not disseminated via the mass media. The article also traces the history of a parallel set of criminal remedies known as the "speech act" doctrine. Under this doctrine, speech is punished when it serves as the actus reus of a criminal offense; conspiracy, for example, is an offense the actus reus of which almost always involves some type of speech, since communication is necessary to consummate the criminal contract. Finally, the article considers how, if at all, these principles, i.e., the criminalization of the content of certain types of speech and the speech act doctrine, should apply to speech disseminated via cyberspace. It divides speech into three general categories (notional ideas, applied ideas and data) and parses the applicability of both principles to subcategories of each. It argues that, except for certain limited instances in which the speech act doctrine properly applies, criminalization is not an appropriate tactic for dealing with speech which many in society find discomfiting, dangerous or otherwise unacceptable. The article concludes by concluding that cyberspace, unlike prior forms of media, creates the opportunity for speech to be truly free; it argues that we, unlike the English lawmakers who criminalized sedition, blasphemy, libel and obscenity, should not regard the possibility of uncontrolled speech as a phenomenon to be stifled, to be the subject of a reaction predicated on the use of criminal sanctions.
    Paul Geller (Adjunct, University of Southern California) posts An International Patent Utopia?, forthcoming in the European Intellectual Property Review. From the abstract:
      How to use the Internet to meet the worldwide patent crisis? Technological progress, swamping patent offices with filings, has provoked this crisis. Patent offices are neither efficiently examining filings nor optimally disclosing inventions. In response, this article proposes an interim solution. To start, new technologies would be posted on the Internet, and thus made searchable as soon as posted, within a globally distributed database. Further, certifications of such postings for completeness and novelty would serve as prima facie evidence for courts to enjoin literal infringement, even across borders, pending patent grants. Finally, such judicial relief would be coordinated with proceedings to shepherd the contributors to a technology into settling their royalty disputes worldwide. If instituted with appropriate treaty provisions, the regime proposed here would supplement, but not supplant, national and regional patent systems. Not only would this regime globalize specific patent procedures cost-effectively, but it would help to harmonize substantive patent laws. This proposal should also serve as a thought-experiment to challenge current premises about the international patent system.
    Thomas Chemmanur and Huanliang (Mark) Liu (Boston, Finance) uploads How Should A Firm Go Public? A Dynamic Model of the Choice Between Fixed-Price Offerings and Auctions in IPOs and Privatizations.. From the abstract:
      We develop a theoretical analysis of the choice of firms between fixed-price offerings and uniform-price auctions for selling shares in IPOs and privatizations. We consider a setting in which a firm goes public by selling a fraction of its equity in an IPO market where insiders have private information about intrinsic firm value. Outsiders can, however, produce information at a cost about the firm before bidding for shares. Firm insiders care about the extent of information production by outsiders, since this information will be reflected in the secondary market price, giving a higher secondary market price for higher intrinsic-value firms. We show that auctions and fixed-price offerings have different properties in terms of inducing information production. Thus,in many situations, firms prefer to go public using fixed-price offerings rather than IPO auctions in equilibrium. We relate the equilibrium choice between fixed-price offerings and IPO auctions to various characteristics of the firm going public. Unlike the existing literature, our model is able to explain not only the widely-documented empirical finding that underpricing is lower in IPO auctions than in fixed-price offerings (e.g., Derrien andWomack (2000)), but also the fact that, despite this, auctions are losing market share around the world. Our model thus suggests a resolution to the above "IPO auction puzzle," and indicates how current IPO auction mechanisms can be reformed to become more competitive with fixed-price offerings. Our results also provide various other hypotheses for further empirical research.

Sunday, July 20, 2003
Copyfighting, Yet Again Lenz Blog has this. My prior posts are here, here, here, and here.
And check out Tim Phillips here.

The Lockean Proviso Locke's theory of property offers a justification for private appropriation of resources (especially land), but limits that justification with a provision. Appropriation is justified but only if the appropriator leaves "as much and as good" for others. Brad DeLong blogs re Nozick's argument for the minimal state. DeLong is a utilitarian, and his criticism of Nozick is therefore a pit puzzling. His argument is a bit ambiguous and unstructured. (No fault of the excellent DeLong--he was blogging afterall.) Here is a passage that I found especially puzzling:
    The first deck-stacking comes with the replacement of one's natural right (i) to freely and fairly use the different kinds of objects that are the bounty of nature by the right (ii) not to have one's situation worsened by the appropriations of others. As Nozick writes (p. 175): object's coming under one person's ownership changes the situation of all others. Whereas previously they were at liberty... to use the object, they now no longer are. This change in the situation of others... need not worsen their situation. If I appropriate a grain of sand from Coney Island, no one else may now do as they will with that grain of sand. But there are plenty of other grains of sand left for them to do the same with. Or if not grains of sand, then other things. Alternatively, the things I do with the grain of sand I appropriate might improve the position of others, counterbalancing their loss of the liberty to use that grain. The crucial point is whether appropriation of the unowned object worsens the situation of other. Locke's proviso that there be "enough and as good left in common for others" is meant to ensure that the situation of others is not worsened..."
    But these two are not identical. The second is not the first. Locke's proviso is not there to make sure that "the situation of others is not worsened." Locke's proviso is there to respect others' rights to free and fair access to the bounties of nature. That violation of someone's rights may not be bad for them is not a valid reson to violate their rights. But Nozick has to pretend that it is, in order to get to his second deck-stacking.
Let me be clear before I start, my point is not to defend Nozick. Rather, I am simply puzzled by DeLong's argument. DeLong seems to be making a point about the exegesis of Locke. Here is the key passage in the paragraph above:
    Locke's proviso is not there to make sure that "the situation of others is not worsened." Locke's proviso is there to respect others' rights to free and fair access to the bounties of nature.
And here is Locke's famous proviso:
    Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same.
So DeLong seems to be arguing that Nozick has misinterpreted the proviso. At first, I thought that DeLong must have misread Nozick. (Drat, my books are all in boxes because of my office move to San Diego!) Now, I am not so sure. But here is my worry. Delong claims "Locke's proviso is not there to make sure that 'the situation of others is not worsened,'" but what does worsening the situation mean in this context? DeLong gives "worsening" an utilitarian interpretation, but the most natural reading (and certainly the charitable reading) is that "worsening the situation of others" means "worsening" in the relevant sense, e.g. worsening with respect to opportunities to use resources. DeLong's post goes on, but unless I am totally off base, most of his textual evidence for the utilitarian interpretation is consistent (or more consistent) with my opportunities to use resources interpretation. And if that is the sense, then DeLong's criticism simply doesn't go through. I must be missing something here.
I would be remiss if I didn't take this opportunity to say that whatever I know about Nozick, I owe to the late Jean Hampton, my first teacher in political philosophy.

Some Resources on the Web

Are politics really markets, or are markets politics, or are both politics and markets really networks, or ? . . . go to Crooked Timber for this post by Kiernan Healy. And this one by Henry Farrell.

A Debate on Anarchism Michael Albert and others debate Anarchism on Znet, here. Here is a taste:
    What about the good trajectory of contemporary anarchism, less visible in the media? This seems to me to be far more uplifting and inspiring. It is the widely awakening impetus to fight on the side of the oppressed in every domain of life, from family, to culture, to state, to economy, to the now very visible international arena of "globalization," and to do so in creative and courageous ways conceived to win improvements in people's lives now even while leading toward winning new institutions in the future. The good anarchism nowadays transcends a narrowness that has often in the past befallen the approach. Instead of being solely politically anti-authoritarian, as often in the old days, nowadays being an anarchist more and more implies having a gender, cultural, and an economic, as well as a politically-rooted orientation, with each aspect taken on a par with and also informing the rest. This is new, at least in my experience of anarchism, and it is useful to recall that many anarchists as little as a decade back, perhaps even more recently, would have said that anarchism addresses everything, yes, of course, but via an anti-authoritarian focus rather than by simultaneously elevating other concepts in their own right. Such past anarchists thought, whether implicitly or explicitly, that analysis from an overwhelmingly anti-authoritarian angle could explain the nuclear family better than an analysis rooted as well in kinship concepts, and could explain race or religion better than an analysis rooted as well in cultural concepts, and could explain production, consumption, and allocation better than an analysis rooted as well in economic concepts. They were wrong, and it is a great advance that many modern anarchists know this and are broadening their intellectual approach in accord so that anarchism now highlights not only the state, but also gender relations, and not only the economy but also cultural relations and ecology, sexuality, and freedom in every form it can be sought, and each not only through the sole prism of authority relations, but also informed by richer and more diverse concepts. And of course this desirable anarchism not only doesn't decry technology per se, but it becomes familiar with and employs diverse types of technology as appropriate. It not only doesn't decry institutions per se, or political forms per se, it tries to conceive new institutions and new political forms for activism and for a new society, including new ways of meeting, new ways of decision making, new ways of coordinating, and so on, most recently including revitalized affinity groups and original spokes structures. And it not only doesn’t decry reforms per se, but it struggles to define and win non-reformist reforms, attentive to people’s immediate needs and bettering people’s lives now as well as moving toward further gains, and eventually transformative gains, in the future.

Saturday, July 19, 2003
The Original Intentions of the Framers with Respect to Campaign Finance Reform See the Curmudgeonly Clerk for the details. Heavens! What will Rick Hasen say?

Copyfighting Continues C.E. Petit has another post up in our continuing exchange. And thank you to Donna Wentworth of Copyfight for this nice abstract of the discussion.

A Debate on Marxism . . . by Michael Albert (Parecon) and Alan Maass (International Socialist Organization) on Znet here. A taste of Albert:
    Marxism’s concepts tend to over emphasize the defining influences arising from economics, and to under emphasize the defining influences arising from gender/kinship, community/culture, and polity. This doesn’t mean that all (or even any) Marxists will ignore everything but economics, nor even that all (or even any) Marxists won’t care greatly about other matters. It means, instead, that when Marxists address the sex life of teenagers, marriage, the nuclear family, religion, racial identity, religion, cultural commitments, sexual preferences, political organization, war and peace, and ecology, they will overwhelmingly tend to highlight implications for class struggle and to deemphasize concerns rooted in the specific features of race, gender, power, and nature. The criticism predicts, that is, that Marxist movements may respect innovations coming from other viewpoints when movements force them too, but that Marxists will not generate many original and useful insights themselves regarding analysis and aims for polity, culture, and kinship. It predicts, as well, that Marxism’s concepts will not sufficiently offset tendencies imposed by society, by circumstances of struggle, or by tactical choices that generate authoritarian, racist, or sexist trends -- even against the best moral and social inclinations of most Marxists. And it therefore also predicts that we will see some pretty horrible results regarding race, gender, culture, ecology, and political organization from Marxist movements in struggle and especially from Marxist movements in power, as we most certainly have. In other words, my claims about Marxism’s “economism” do not predict silly monomania about economics or even a universal and inviolable pattern of over adherence to economics and under adherence to everything else, but, instead, they predict a harmful pattern of imbalance that arises and persists on average.
And a little bit of Maass:
    Thus, rather than imagining a better world disconnected from the question of how to get there, the whole stress of Marxism is on how the process of "getting there" determines the shape of the better world. At the heart of the question is how the working-class majority can prepare itself for the future. As Marx put it, "Revolution is necessary not only because the ruling class cannot be overthrown in any other way but also because the class overthrowing it can only in a revolution succeed in ridding itself of all the muck of ages and become fit to found society anew." So in spite of Marx and Engels’ famous impatience for the day of the revolution to arrive, they insisted that no shortcuts devised by a minority--however well-meaning--could be an effective substitute for the masses of workers learning their own power and developing the organization to use it.
My guess is that many readers of legal theory blog are unfamiliar with the rich theoretical Marxist tradition, in my mind an essential component of a legal theory education.

New from Hart Hart publications has announced a few new legal theory titles:
    Governing Sexuality: The Changing Politics of Citizenship and Law Reform by Carl Stychin (Professor of Law and Social Theory at the University of Reading):
      Governing Sexuality explores issues of sexual citizenship and law reform in the United Kingdom and Continental Europe today. Across western and eastern Europe, lesbians and gay men are increasingly making claims for equal status, grounded in the language of rights and citizenship, and using the language of international human rights and European law.
    Responsibility in Law and Morality by Peter Cane (Professor of Law in the Research School of Social Sciences at the Australian National University):
      'Cane's lucidly-written and well-argued book is one of the finest ever contributions to responsibility theory, ranking qualitatively with Joel Feinberg's Doing and Deserving (Princeton,1970) and H.L.A. Hart's Punishment and Responsibility (Oxford,1968).It is absolutely required reading for anyone interested in developing a more comprehensive theory of responsibility. -J. Angelo Corlett, Mind
    Implicit Dimensions of Contract: Discrete, Relational, and Network Contracts, edited by David Campbell (Professor of Law at Cardiff Law School and the ESRC Centre for Business Relationships, Accountability, Sustainability and Society), Hugh Collins (Professor of English Law at the London School of Economics) and John Wightman (Lecturer Head of Kent Law School, Canterbury):
      This collection of essays, derived from an international workshop, explores the significance of implicit understandings and tacit expectations of the parties to different kinds of contractual agreements, ranging from simple discrete transactions to long-term associational agreements such as those formed in companies. An interdisciplinary and comparative approach is used to investigate how the law comprehends and gives effect to the these implicit dimensions of contracts. The significance of this enquiry is found not only in relation to the interpretation of contracts in many different contexts, but more fundamentally in how social practices involved in making contracts should be analysed and comprehended.

Friday, July 18, 2003
More on Copyfights Check out this email from Eric Enslow.
And this email from Richard Vermillion.

Rea and Dennett Debate a Bright Idea Here.

Franck on the Supreme Court's Term Matthew Franck has a metanalysis of Supreme Court wrapups on NRO. It's mostly about Linda Greenhouse and Nina Totenberg, but I liked this bit:
    In political science, the dominant school of thought in the study of the Supreme Court for the last four decades has been the "behavioral" approach, which uses an "attitudinal model" to understand judicial decision-making. The first rule of this model: Do not read the Court's opinions with any care. Instead, skim them for just enough information to pigeonhole each case in some predetermined category: civil liberties, business regulation, the overturning or upholding of precedent. Second rule: Count noses and arrange the votes into a pattern. Don't forget to notice the political parties of the appointing presidents. Third rule: Make some charts and if possible some equations. This will make the obvious and superficial seem less so. Fourth rule: Announce that the patterns, charts, and equations themselves explain something. Not something interesting, mind you. Something like the conclusion you assumed from the outset, that "law" is not an independent variable in judicial decision-making. Forty years ago the great constitutional-law scholar Wallace Mendelson blasted this approach with arguments that have never been rebutted. "We are apt," Mendelson wrote, "to see what we are prepared to see — and the neo-behavioralists are prepared to see lawlessness. As a group, they have, in effect, found every member of the modern Supreme Court guilty of fraud, hypocrisy, or foolishness."

Snitching For three years I was the associate dean at my former academic home (Loyola Marymount University's law school). There was a minor cheating scandal and I spoke with various witnesses. One student refused to name names. When asked why, the student replied that one of his/her professors had emphasized the importance of ethical conduct and reputation. This student was not going to act "unethically" by being a snitch. I was flabbergasted, because (naively), I thought that the student would see the ethical imperative as going the other way. Daniel Davies has a nice (but unsatisfying) post on Crooked Timber on the morality of snitching. Why is "snitching" considered "morally wrong"?

Catching Up Department I've been arguing that Justice Kennedy's opinion in Lawrence should not be understood as applying "rational basis" scrutiny. Eugene Volokh has a well-argued post making the case for this conclusion.

New Papers on the Net 2 This is today's second installment of new papers, mostly from SSRN:
    David Lindsay (University of Melbourne, The Centre for Media and Communications Law) posts Playing Possum? Privacy, Freedom of Speech and the Media Following ABC v. Lenah Game Meats Pty Ltd; Part II: The Future of Australian Privacy and Free Speech Law, and Implications for the Media, forthcoming in the Media and Arts Law Review. From the abstract:
      Attempts to suppress the publication of material by the media commonly raise tensions between freedom of expression and other fundamental rights or values. Under the Australian legal system, such tensions are often resolved by a technical search for an applicable cause of action rather than by reference to constitutional norms. The recent High Court decision in ABC v. Lenah Game Meats Pty Ltd illustrates how the search for a remedy may inhibit the development of consistent rules for resolving tensions between fundamental rights and values. Part I of this article (see (2002) 7:1 MALR 1) explained the approaches taken by the High Court to the award of an interlocutory injunction to restrain publication of material obtained by means of trespass, and suggested that the decision is an example of the failure of the Australian legal system to address the policy issue of the extent to which the law should protect "private" material that is neither confidential nor defamatory. Part II of this article explains the implications of the decision for the future development of the action for breach of confidence, and for the protection of privacy interests and freedom of expression, under Australian law.
    Stefan Voigt (University of Kassel, Economics) posts Iudex Calculat: The ECJ's Quest for Power. From the abstract:
      Judicial Independence is a crucial aspect of the rule of law and the concept of separation of powers. It gives judges considerable leeway in interpreting - and thereby modifying - the constitution. In this paper, the role of the European Court of Justice (ECJ) as an actor in the strategic game played between the other actors on the European level as well as actors on the nation-state level (the respective governments, but also national courts, corporate actors and individuals) is inquired into. After describing the changes of the ECJ's competence that have occurred since 1953, an attempt at explaining them is undertaken. It is shown that the ECJ has been able to bring about implicit constitutional change because its members are constrained less stringently than most supreme court judges on the nation-state level. It is furthermore shown that lower court judges have incentives to cooperate with the ECJ - sometimes to the detriment of national supreme court judges.
    Giuseppe Mattiacci (Utrecht School of Economics) posts Toward a Positive Economic Theory of Negative Liability. Here is the abstract:
      Liability systems internalize negative externalities by providing general tort liability rules. According to such rules, those who cause harm to others should pay compensation. In theory, in the presence of positive externalities, negative liability should apply: those who produce benefits should be paid a compensatory award by the gainers. Nevertheless, current legal systems do not display such general negative liability rules. Rather, they tackle the problem of internalizing positive externalities by implementing a set of different and often indirect solutions. This article suggests an explanation for this puzzle, and furnishes indications for future comparative law research.
    Jeremy Marr (Boston College) posts Constitutional Restraints on State Right of Publicity Laws, forthcoming in the Boston College Law Review. From the abstract:
      Over the past fifty years, a new intellectual property right called the right of publicity has evolved under state common law. The author explores a recurring concern hinted at by several lower courts and dissenting opinions: that current publicity laws offend parts of the Constitution beyond the First Amendment and the Copyright Clause. The existing hodgepodge of state statutory and common law that makes up the right of publicity appears to be a minefield of constitutional hazards. Courts must consider a variety of First Amendment, Copyright Clause, Commerce Clause, Due Process Clause, and Full Faith and Credit Clause issues when resolving publicity rights cases. The author argues that Congress could simplify this area of the law considerably for plaintiffs, defendants, and courts by creating a limited preemptive federal right of publicity. Alternatively, the right could remain state-based and still avoid these issues through other approaches.
    Larry Backer (Penn State) has two new papers:
      Using Law Against Itself: Bush v. Gore Applied in the Courts, forthcoming in the Rutgers Law Review. From the abstract:
        The decisions in Bush v. Palm Beach County Canvassing Bd. ("Bush I") and Bush v. Gore, ("Bush II") evidence the extent to which it now appears unremarkable for courts to play a role in even the most basic of political issues. While the doctrinal value of the Bush decisions is certainly important, the Bush decisions are far more valuable for their endorsement of methodologies available to anyone seeking political advantage under the cover of judicial legitimacy. This article explores those principles, practices and procedures. I start with an appropriate theoretical context. For that purpose I look to LatCrit theory rather than more ideologically traditional or doctrinal theory. Ironically, this expression of critical theory, grounded in progressive political programs, provides the best conceptual basis for interpreting the ostensibly traditionalist Bush cases. I use this theoretical context to identify eight core methodological lessons of the Bush cases: (1) "Be Consciously Political;" (2) "Be Literal;" (3) "Attack Precedent;" (4) "Create Contradiction;" (5) "Appropriate;" (6) "Exploit Uncertainty and Sentimentality;" (7) "Recruit Legitimacy;" and (8) "If All Else Fails, Overwhelm Law Through its Own Devices." I then explore the way these lessons have been internalized by the courts and applied in nearly one hundred published and unpublished judicial opinions issued since the publication of the Bush cases. Those opinions are windows through which one can see the ways in which litigants have attempted to extract meaning from the Bush decisions far beyond their officially sanctioned reading, and the ways in which judges have attempted to situate the Bush decisions within the body of American case law. In their least dangerous sense, the lessons, as applied, suggest the ways in which the juridification of politics has become institutionalized in federal and state courts. The courts now rival the legislature as the venue par excellence for the resolution of political issues of every description. But the lessons also suggest the naturalization, within an ostensibly conservative political jurisprudence, of methodologies of legal perversion, of the use of law against itself. Having made a vocation of criticizing the political left for the nihilistic evils of critical and other progressive approaches to law, a so-called conservative court has gone a long way to implement a jurispruence of ultimate relativism and indeterminacy. Now that is irony!
      The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, forthcoming in the Pennsylvania State International Law Review. From the abstract:
        I offer here an extended Nietzschean joke: the necessity of error in the constitution of individual authority and communal power. Communities - the nation-state, religious communities, terrorist organizations - are arranged through a cultivation of error: mistaking causes for effects, assuming a false causality, creating an imagined causality, and assuming a free will. These errors of causation, these miscausations, have been offered as a means through which leaders or leader classes - the judge, the priest, the king, the president, the charismatic leader of violent sub-national communities - maintain authority. In contrast, the community itself, those who are led, dominated, controlled, manipulated, are considered only in the passive. They are the victims, the weak-willed, the powerless, the sheep, the herd. They obey because they must. But authority is not power, and reality is more subtle and layered than what appears on the surface of relationships. Just as the priest, the leader uses miscausation to create the illusion of power and so protect and expand individual authority, so the community uses miscausation to assert communal power - over the priest, the president, the judge, the leader - through the illusion of weakness. The strong leader does not usurp power from the communal weak; the herd, for its own preservation as a herd, demands the appearance of overlordship of the leader. The cult of the leader, of the individual solely responsible for her acts, and of communities consisting of passive amalgams free from responsibility, serve as the foundation for modern human rights and humanitarian law. But the cult of the leader itself constitutes a titanic act of mis-causation in four parts: (1) that communities are protected not because they are weak, but because they are strong, to protect the community against blame for action committed in its name by its leaders; (2) that the leader is dependent on the community; the leader acts in conformity to the wishes of the people; (3) that the leader then serves as proxy for the community; the doctrine of personal responsibility for communal acts protects a community by sacrificing its leaders for acts of communal wrongs; and (4) that the community, the sheep, are in actuality the Shepherd in a world arranged to minimize the costs of inter-community conflicts for power. For modern political and legal theory, this misunderstanding unveils the perversity of the logic of grounding modern international humanitarian law in the personal responsibility of individuals for their acts. I will offer an example - the way international humanitarian law, used to condemn punitive house demolitions in Israel, serves to subsidize the maintenance of the cultural production of hatred which constitutes communal permission to engage in individual acts of violence against not Israelis, but Jews. Communities ought to bear responsibility, ought to pay, for the socio-cultural subsidy of hatred. To that end, I suggest a tax on culturally cultivated hatred assessed against a community that subsidizes hatred leading to acts of individual violence.
Other papers of inerest:

Whose Anupam Chander (U.C. Davis) has posted Whose Republic? on SSRN. Here is the abstract:
    The printing press helped create modern nationalisms, as books and newspapers came to be written in the vernacular, encouraging a conception of a shared community among groups of people who would never actually meet. It thus seems only natural to ask what today's innovation in mass communication, the Internet, will mean for political communities. In his book, REPUBLIC.COM (2001), Cass Sunstein contends that the advent of personalized information sources available in cyberspace threatens republican deliberation. But where Sunstein worries about the "Daily Me" made possible by electronic intermediaries that deliver news tailored to a reader's tastes, I observe that, for minorities, the traditional media offer the "Daily Them" - a vision of society focused on its dominant members. I suggest that cyberspace helps counter the elision of minority experiences in the traditional media. Because of technical features such as end-to-end design, the Internet and the World-Wide-Web enhance the ability of marginalized people to have their voices heard, and indeed to find a voice. At the same time, cyberspace may help reinvent community, pulling us out of territorially-imagined spaces in favor of transnational, affective communities. In many ways, cyberspace presents a cosmopolitan ideal, where individuals may be drawn together based on interests and passions, rather than territory or national identity.
And Chander also has uploaded Minorities, Shareholder and Otherwise, forthcoming in the Yale Law Journal.

New Papers on the Net 1 Once again, there are many new papers on SSRN. Here is the first installment for today:
    Samuel Thompson (UCLA) posts Critique Of Williamson's Economic Case For An Efficiencies Defense In Antitrust Merger Analysis: Are Rectangles Really Larger Than Triangles? From the abstract:
      This article examines the pricing, output, and welfare effects resulting from a merger in which a pre-merger competitively organized market becomes a post merger monopolistically organized market, and the acquiring firm realizes substantial productive efficiencies. The findings call into question the basic assertion by Professor Williamson and others that productive efficiencies are likely to offset the loss in welfare represented by the welfare triangle.
    Katharina Pistor (Columbia), Yoram Keinan (Ernst & Young), Jan Kleinheisterkamp (Max Planck Institute for Foreign Private and Private International Law) and Mark West (University of Michigan) post two papers:
      The Evolution of Corporate Law: A Cross-Country Comparison, forthcoming in the U of Penn., Journal of Int'l Economic Law. From the abstract:
        Corporate law as it exists in any given country today is the result of roughly 200 years of legal change and legal adaptation. Provisions that today are hailed as indicators for good corporate governance did not exist when the first statutory corporate laws were put in place. This simple insight raises the question about the evolution of corporate law. In this paper we analyze ten jurisdictions representing the three major legal families as well as transplant countries and origin countries to explore the patterns of legal change over time. We find origin countries from common law and civil law families have experienced substantial legal change and adaptation over time. By contrast, legal transplants from both legal families have often retained the transplanted law for decades despite substantial economic change. The area of corporate law where we find the most significant change over time are corporate finance provisions. Provisions concerning corporate governance structures and entry and exit rules are also investigated.
      Innovation in Corporate Law, forthcoming in the Journal of Comparative Economics. From the abstract:
        In most countries large business enterprises today are organized as corporations. The corporation with its key attributes of independent personality, limited liability and free tradeability of shares has played a key role in most developed market economies since the 19th century and has made major inroads in emerging markets. We suggest that the resilience of the corporate form is a function of the adaptability of the legal framework to a changing environment. We analyze a country’s capacity to innovate using the rate of statutory legal change, the flexibility of corporate law, and institutional change as indicators. Our findings suggest that origin countries are more innovative than transplant countries.
    Stephen Ellmann (New York Law School) posts Racial Profiling and Terrorism, forthcoming in the New York Law School Law Review. From the abstract:
      This article asks whether terrorism changes the constitutional calculus bearing on racial profiling (and on profiling based on other, comparably troubling grounds, such as religion and gender). While maintaining that domestic racial profiling is indeed unacceptable, I argue that the same is not always true for racial profiling directed at acts of terrorism. Starting from the premise that the use of race is not automatically forbidden under the constitution, I contend that the prevention of terrorism, in the context of an actual war against terrorism, is a governmental interest of particularly compelling weight. Strict scrutiny analysis tells us that the next question is whether racial profiling is ever necessary, or closely tailored, to achieving this goal. I answer that we do not definitively know whether racial profiling will help, but that it may. We also know that profiling will produce many false positives - searches or stops that have no basis in fact - and that these intrusions may produce stigma, humiliation and resentment, although, again, we do not know just how likely these broader harms are. How should these uncertainties be balanced? I suggest that in times of terrorist emergency, of substantially based fear of imminent terrorist attack, when everyone must endure some measure of intrusion, the constitutional balance embodied in strict scrutiny allows the use of profiling that is targeted carefully, and conducted with restraint. I go on to argue that the principle of emergency profiling can be extended to another terribly dangerous, though not emergency, context, namely airports. At the same time, I urge that even in the context of terrorism by no means anything goes, and I maintain, for example, that the recent program of mass interviews of predominantly Middle Eastern men present in the United States on student, tourist or business visas was an instance of improper racial profiling. This article reaches unsettling conclusions and might be seen as endorsing a step drawing us towards the tremendous injustice of our World War II internments of Japanese-Americans. But I argue that the profiling I endorse is a far cry from the cruel programs of World War II, and that it is important for scholars to address, candidly, the impact of the new perils we now face on our constitutional stands. I welcome comments from readers.
    Roland Kirstein (Saarland University, Center for the Study of Law and Economics) and Stefan Voigt (University of Kassel, Department of Economics) post The Violent and the Weak. When Dictators Care About Social Contracts, forthcoming in the American Journal of Economics and Sociology. From the abstract:
      This paper explores conditions under which dictators comply with a social contract. We assume society to consist of two groups, one with a comparative advantage in using violence, the other one with a comparative advantage in producing private goods. Violence can be used to produce security or to exploit the weaker group. The opportunity for exploitation is limited: it reduces the incentives of the exploited to produce private goods and increases the chances of revolution. Social contracts consist of the exchange of security against a share of the private good, produced at a high effort level. The model allows the derivation of conditions for either compliance or exploitation to occur and provides a comparative static explanation for the transition from one form of government to the other. Thus, it contributes to Positive Constitutional Economics, the research program that is interested in explaining the emergence and change of constitutions.
    Amitai Aviram (George Mason) posts The Paradox of Spontaneous Formation of Private Legal Systems. From the abstract:
      Scholarship on private legal systems (PLS) explains the evolution of norms created and enforced by PLSs, but rarely addresses the evolution of institutions that form PLSs. Such institutions are assumed to form spontaneously (unless suppressed by law) when law is either unresponsive or incapable of directing behavior in welfare-maximizing manners. But, as this paper demonstrates, PLSs typically cannot form spontaneously. Newly formed PLSs cannot enforce cooperation since the effectiveness of mechanisms used to secure this cooperation (e.g., the threat of exclusion) depends on the PLS's ability to confer benefits to its members, and newly formed PLSs do not yet confer such benefits. Successful PLSs bypass this barrier by building on extant foundations - preexisting institutions that already benefit members, typically through functions requiring less costly enforcement. The threat of losing preexisting benefits disciplines members to abide by the PLSs' rules, which in turn allows the PLSs to regulate behavior. This pattern indicates that rather than developing spontaneously, PLSs develop in phases, initially facilitating activities that are unrelated to regulating behavior and incur lower enforcement costs, the provision of which enables the PLS to regulate behavior in the second stage. The paper suggests normative applications of this observation in the fields of antitrust, critical infrastructure protection and corporate governance.
    Michael Smith (Ohio State, Business) posts Deterrence and Origin of Legal System: Evidence From 1950 - 2000. From the abstract:
      Legal systems of countries include laws, regulations and procedures that may deter acts harmful to others. Deterrence incentives created by legal systems underlie effects documented in the Law and Finance literature, which has shown that legal systems can offer protection to investors against expropriation. This protection in turn fosters the development of a country's financial markets. Incentives created by legal system can extend beyond investor protection, deterring other types of harmful acts as well. This study presents evidence on deterrence incentives in other areas, finding that fatality rates from motor vehicle accidents and from other types of accidents vary significantly across countries classified by origin of legal system. Motor vehicle accident fatality rates in countries whose legal systems are based on English Common Law generally have been lower than those in civil law countries, especially countries with legal systems based on French Civil Code or former members of the Soviet Union and Eastern Bloc countries. Fatality rates from other types of accidents are lowest in common-law countries; followed by those in French, then German, then Scandinavian Civil Code countries, with the highest fatality rates occurring in former Eastern Bloc and Soviet Union countries. The pattern of motor vehicle accident fatality rates resembles patterns of corporate control values found in the Law and Finance literature, which is evidence that aspects of a country's legal system protecting investors also deter other types of possibly harmful acts. The disparity between low motor vehicle accident fatality rates and high fatality rates from other types of accidents in Scandinavian countries is more difficult to explain. Scandinavian laws targeting motor vehicle operation, especially while under the influence of alcohol or drugs, could explain their motor vehicle accident fatality rates being among the lowest in the world, while generous social insurance programs could weaken incentives normally deterring individuals from other types of dangerous behavior. Still, the disparity between fatality rates in these two categories in Scandinavian Civil Code countries is puzzling.
Additional papers of interest:

Barnett's Libertarian Reading of Lawrence A nifty downloadable version of Randy Barnett's Justice Kennedy's Libertarian Revolution: Lawrence v. Texas. These ideas have already created quite a stir in the blogosphere and on the academic conlaw listserv. Here is the abstract:
    This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy's reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes "liberty" (a word he uses at least twenty-five times). In addition, Justice Kennedy's opinion protects liberty without any finding that the liberty being restricted is a "fundamental right." Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoption - sub silentio - of a "presumption of liberty."
Download it while it's hot!

Internet Connection Down My internet connection was nonfunctional yesterday. Regular blogging resumes today.

Wednesday, July 16, 2003
The Ethics of Blogging by Judicial Clerks The anonymous Curmudgeonly Clerk has a wonderful analysis here.

Welcome to the Blogosphere To J.H. Huebert, a law student at the University of Chicago. Thanks to Crescat Sententia for the link.

More from Eugene Volokh on Gay Marriage Go here for a very interesting exchange with a New Jersey assemblyperson.
Update: And here is another post from Eugene, on Lawrence and differential penalties for hetero- & homosexual statutory rape.

Copyfights Update
    Introduction C. E. Petit (of Scrivener's Error) has been posting on the disagreements between IP academics and practitioners (here and here). I responded in a post entitled Copyfights. This post gathers some of the blogospheric reaction and continues the debate with Petit.
    Weatherall Weighs In Kim Weatherall comments on my discussion with C.E. Petit of Scrivener's Error on Weatherall's Law. Weatherall's comment is very thoughtful and has the additional virtue of providing an Australian perspective. If you are interested in the theory of Intellectual Property, you will want to read her post.
    Bias and Self-Interest: Petit Responds Petit's first post made the following point about the failure of legal academics to appreciate the importance of strong protection for IP rights:
      The vast majority of the individuals and organizations who argue against long copyright terms, for example, do not earn a living based directly upon income from their intellectual property.
    I responded with four arguments, the third of which was:
      Third, Petit is wrong about the facts. Many academics derive significant income from their intellectual property, but still believe that IP protection is too strong. A good example is Larry Lessig who has written two books that are best sellers for the academic world.
    Now Petit argues:
      What I was trying to say is that those who do not have a critical stake in IP protection tend to inordinately discount the personal stakes of those who do. Professor Solum's citation of Professor Lessig's books is not persuasive. Admittedly, Professor Lessig has made quite a bit of money from his books, and deserves to; there is much of value in them. However, the books are not how he makes his living; his role as a professor is how he makes his living. Further, the vast majority of professors who have written books?—even oft-adopted textbooks?—do not earn enough from that activity to say that writing books is how they "make their living."
    Petit is making a most unusual claim: "[T]hose who do not have a critical stake in IP protection tend to inordinately discount the personal stakes of those who do." Let me make a few points here:
      First, as I argued before, Petit has not demonstrated the "inordinate discount." Where, for example, did Lessig engage in "inordinate discount[ing]"? Who else has done this? My previous reply asked for the evidence for Petit's claim of bias, and such evidence has not yet been produced. But I also want to concede a point to Petit: I absolutely agree that given the current IP regime, there is a need for legal protection of writers and artists against P2P filesharing. And another point of agreement: And I agree that some academics have emphasized the flaws of the DMCA without also acknowledging the need for some solution to the P2P filesharing problem.
      Second, Petit seems to be unaware of the "critical stake" that academics have in their intellectual property. I can't speak for Lessig, but I know that in my own case, not only is the income from books important to me, my intellectual property rights are crucially important to my academic reputation and hence to my position in the profession. Petit's claims that academics cannot appreciate and understand the importance of IP to writers and artists is simply implausible. If Petit's claim is that one must depend on IP for the necessities of life in order to appreciate its importance, he really needs to provide evidence.
      Third, Petit has yet to answer the most important argument against his position, which was:
        Petit has gotten the bias effect of self-interest topsy turvy. The usual inference from economic self interest in bias.
    Rentseeking Petit and I are also going back and forth on rentseeking. Petit argues that intellectual property is indistinguishable from tangible property (real and personal). I argued that there is a fundamental economic distinction. Consumption of intellectual property is nonrivalrous, whereas consumption of tangible property is rivalrous. Petit responds:
      The only way in this context to equate "rent-seeking" with "bad" is to treat intellectual property as somehow inherently "inferior" in the right to seek rents to personal or real property. Professor Solum quite properly points out that the act of making a copy does not directly create exclusion. The difficulty here is that there are two types of property at issue every time a copy is made: the physical copy itself, and the content of the copy. Making a copy does not physically (in most cases; consider a sculpture made of rare or unique materials) inhibit the making of another physical copy, true enough. However, that copy in some sense alters the value of the intellectual property. In some contexts, the greater number of copies may increase the value of the property; a single copy of a particular musical performance, for example, has less value to the creator of the musical performance than do fifty copies that allow others to share in the performance and compensate the creator for it. However, this does not justify rent-seeking in physical property in the abstract while denigrating it in intellectual property in the abstract.
    Several points:
      First, Petit has confused two distinct economic concepts, excludability and rivalrousness. Both physical resources and intellectual property satisfy the excludability criterion. Trespass laws exclude others from consumption of real estate, and copyright laws exclude others from the consumption of the intellectual property in copyrighted works. My point was that consumption of tangible property is rivalrous, whereas consumption of intellectual property is not. Petit may simply be unfamiliar with the terminology.
      Second, Petit seems to think that the following point is relevant:
        However, that copy in some sense alters the value of the intellectual property. In some contexts, the greater number of copies may increase the value of the property; a single copy of a particular musical performance, for example, has less value to the creator of the musical performance than do fifty copies that allow others to share in the performance and compensate the creator for it.
      Petit is right. Copying affects value. In general, the more copies, the greater the value. (There will be exceptions of course.) Your making a copy of a book or CD does not reduce my ability to consume my copy of the same work (the content as opposed to the physical medium). But the same is not true of tangible property. If you consume a gallon of gas, I cannot consume it. If you build on a lot, I cannot build on it.
      Third, Petit simply hasn't answered my argument. Perpetual property rights in tangible property are required to prevent what is called the tragedy of the commons. Perpetual property rights in intellectual property and not required for this purpose.
      Fourth, this discussion is a good illustration of the gap between the profession and the academy. The arguments that I have been making about the differences between tangible and intellectual property are elementary and well-established. To an academic, these points seem obvious, and the mistakes that Petit makes in responding to them are simply the mistakes of someone unfamiliar with the economic literature on intellectual property. This creates a communications gap. Petit, unfamiliar with the literature, believes that these are matters of opinion, and that he has novel and perhaps ultimately viable arguments. I am quite sure that in the end, if Petit makes the effort to understand the economics, he will come around to my point of view. Petit is appalled by the idea that intellectual property is somehow "inferior" to tangible property. "Inferior" is a vague and loaded term. But Petit's instinct is right. Intellectual property is different from tangible property in a crucially important respect (rivalrousness). And because of that difference, the economic case for perpetual property rights in tangible things does not extend to intellectual property. In that sense, intellectual property is "inferior," and, in that sense, this is a well-established and uncontroversial fact.
    I would like to thank Petit for this exchange. These debates are quite difficult, because academics and practitioners come from different places. We know different things. We have different values. Moreover, our styles are different. But I hope that through such exchanges we might come to a better understanding.

Mandle on Rawls Jon Mandle at Crooked Timber has a post on Rawls's The Law of Peoples. Here is a taste:
    It is true that Rawls thinks different standards of justice should be used in the domestic and international spheres. Domestically, Rawls endorses his “difference principle”, according to which economic schemes are to be evaluated according to their likely effect on the least-advantaged. Although he does not believe that all domestic economic inequalities are unjust, he places the burden of proof squarely on the shoulders of those who would defend structural inequalities. It is fair to call him an egalitarian. In the international sphere, Rawls is not an economic egalitarian. He does not believe that an inequality in wealth between two countries is even prima facie evidence of injustice. On the other hand, he does hold that wealthy countries have a duty of assistance to assist (many) poor countries – those that he calls “burdened societies.” These are societies that “lack the political and cultural traditions, the human capital and know-how, and, often, the material and technological resources needed to be well-ordered.” Relatively wealthy and well-ordered societies should aim to “help burdened societies to be able to manage their own affairs reasonably and rationally and eventually to become members of the Society of well-ordered Peoples.” Once a burdened society reaches that threshold – what Rawls calls the “target” – further assistance to narrow remaining economic inequalities is not required by justice.
If you are interested in international justice, read this.

Schauer on Neutrality Frederick Schauer (Harvard, Kennedy School) has posted a revised version of Neutrality and Judicial Review on SSRN. Here is a taste:
    Since Herbert Wechsler's famous article, the topic of neutrality has played central stage in many debates about judicial review specifically and constitutional law generally. On closer inspection, however, it turns out that the heading of "neutrality" encompasses not one but four different debates. One is about principled adjudication, another is about decision according to rules, a third is about substantive neutrality, and the fourth is about the desirability (or not) of designing the institutions of judicial review without regard to likely substantive outcomes and without regard to the likely staffing of those institutions. This paper distinguishes these four conceptions of neutrality and analyzes each of them.

New Papers on the Net 2 I'm still catching up with SSRN, which released a spate of new papers after their summer hiatus. Here is Part 2 of the roundup (scroll down for Part 1):
    Jennifer Levison (Schiff Hardin & Waite) posts Elizabeth Parsons Ware Packard: An Advocate for Cultural, Religious, and Legal Change, forthcoming in the Alabama Law Review. Here is the abstract:
      After twenty-one years of marriage and six children, Theophilus Packard committed his wife, Elizabeth Parsons Ware Packard (1816-1897), to the Jacksonville Insane Asylum because she defied him by publicly expressing her liberal religious beliefs. Elizabeth spent three years in the asylum, and upon her release, she returned home and Theophilus confined her to the nursery. Elizabeth's friends obtained a writ of habeas corpus, and a public trial regarding her sanity ensued. The trial attracted national news coverage and resulted in the exploration and confirmation of Elizabeth's sanity. Elizabeth recognized that in order to effect legal change one must fight on several fronts - in the courts, at the legislative level, and with public education. She utilized the courts when necessary - to gain recognition that she was sane and to gain custody of her children. But she also saw the value in educating the public about her causes (insanity, married woman's property rights, and child custody rights) through her books and the benefits of lobbying legislatures to change laws. This Article: (1) explores Elizabeth's early years and how they influenced her later in life; (2) analyzes what led to Elizabeth's commitment, her experience in the insane asylum, and the trial for her freedom; (3) addresses Elizabeth's crusade for the rights of the insane, married women's property and earning rights, and child custody rights; (4) examines Elizabeth's beliefs concerning religion, marriage, and a woman's legal being; (5) delves into how Elizabeth, Charlotte Bronte, and Elizabeth Stoddard, through the act of writing, confronted the male mirror to create their own mirrors; and (5) posits that Elizabeth entered the borderlands - the sites of contestation - as a dormant, hesitant, and daring voyager. While certainly there is much merit to the theoretical approaches that have been devised to analyze the lives of nineteenth century women (i.e., domestic, feminist, etc.), such constructs to some extent result in an oversimplification of how women shaped their own self. Women existed within a diverse and continually shifting world. Some remained almost exclusively within their private landscape - that of home and children - remaining dormant voyagers. Within the private landscape existed a vibrant world, where these women searched to capture their selves and in many ways constructed a liminal space of empowerment. Other women attempted to restructure their private landscape in order to gain greater power - these women were hesitant voyagers. They were the women who gained confidence from the private landscape and began to express themselves. Circumstances, or perhaps self-revelation, caused some women to become daring voyagers - that is, women willing to enter the borderlands - the sites of contestation. Suddenly, the private/public dichotomy disappeared for these women as they attempted to capture their selves - in all realms, private and public. There is much to be gained from unearthing and grappling with the inconsistencies and intricacies of women's lives during the nineteenth century - in that we can better understand the fluidity of women's lives and how they shaped and were shaped by various forces, including law, religion, and culture.
    Kevin Williams (Sheffield Hallam University, Law) uploads Doctors as Good Samaritans: Some Empirical Evidence Concerning Emergency Medical Treatment in Britain, forthcoming in the Journal of Law and Society. From the abstract:
      This paper reports the results of the first survey of British doctors' attitudes towards the provision of emergency treatment outside the usual confines of a surgery or hospital. The experience and perceptions of NHS doctors practising in Sheffield concerning Good Samaritan behaviour are discussed against the background of the rather uncertain common law of medical rescue. The implications of the survey's findings for the direction of legal policy and the promotion of medical altruism are also considered. Despite the alleged deterioration in standards of social responsibility, the potentially fraught nature of such interventions, and the theoretical possibility of legal liability should any rescue attempt go badly, it seems that the overwhelming majority of doctors (in this survey, at least) are willing Samaritans.
    Ethan Leib (Yale, Law & Political Science) offers Towards a Practice of Deliberative Democracy: A Proposal for a Popular Branch, forthcoming in the Rutgers Law Journal. From the abstract:
      Frustrated by the failure of theorists of deliberative democracy to envision concrete institutional design proposals that the theory recommends, the author proposes a fourth branch of government called the Popular Branch. The Article recommends replacement of the initiative and referendum processes with deliberative assemblies, where stratified random samples of lay citizens are compelled to convene and decide policy questions in a jury-like environment. The Article tries to evision how this mechanism for garnering both a civic voice and a popular will could be integrated with the separation of powers and acceptable checks and balances.
    Paul Rubin (Emory) posts Legal Systems as Frameworks for Market Exchanges. From the abstract:
      Recent changes in the former communist countries have demonstrated the importance of a legal system for economic progress. A legal system defines property rights, allows for exchange of property rights, and protects property rights. Countries with a rule of law and well established property rights are more prosperous and grow more quickly than countries lacking such a system. An important function of the rule of law is to protect property rights from governments. Rules also facilitate private exchange through contract. There are theoretical arguments for the greater efficiency of a common law system than a code system. These have to do with protection of rights from the government and also with mechanisms for efficient evolution of the law, including mechanisms for competition between court systems. Legal systems that provide greater protection from government seem to be more efficient than others. Arbitration is an efficient alternative to state enforced law. Some issues identified here, such as the role of competing courts, are fruitful areas for further research. The evidence here also indicates that countries should adopt a rule of law, protect property rights from government predation, and rely on court competition and evolutionary forces to obtain efficient law. Of course, these suggestions are difficult to implement because they may be opposed by powerful interests.

Epstein on Trade Secret (Not TRADEMARK!) Richard Epstein (University of Chicago) has posted Trade Secrets as Private Property: Their Constitutional Protection. Here is a taste:
    Trade secrets are an important form of property that receive constitutional protection against government expropriation under the takings clause. That level of protection is in the first instance determined by the nature of the taking. The common view is that trade secrets as intangible property can only be subject to a regulatory taking, so that the government actions are judged under a lenient rational basis standard. But this analysis is incorrect when the government not only restricts the way in which the holder of a trade secret may use its property, but also requires its disclosure to the world at large, for which a standard of strict scrutiny is appropriate. Once that is done, then the health and safety justifications for the particular disclosure, as well as the compensation, if any, provided have to be looked at more closely. Judged by this standard, the requirements for sharing trade secrets for pesticides governed by federal environmental statutes that was accepted in Ruckelshaus v. Monsanto should pass muster, but the efforts of Massachusetts for force disclosure of trade secrets about flavoring additives in cigarettes was correctly struck down Philip Morris v. Reilly, albeit not by treating it as a government occupation, but by ratcheting up scrutiny for regulatory takings as applied to intangibles.

Tuesday, July 15, 2003
Copyleft Top Ten You really want to check this out.

Hasen on the California Recall If you are interested in the legal issues surrounding the attempt to recall California Governor Gray Davis, the place to go is the Election Law Blog, where election-law superstar Rick Hasen has this post.

Volokh on Gay Marriage and Slippery Slopes Eugene Volokh has a must read post. Here is a taste:
    What troubles me about so many (though not all) of the anti-gay-marriage arguments is that they seem to be about shuffling abstractions. I've blogged recently about why I think there's not a lot of concrete insight behind the abstraction "unnatural" or the "accidental infertility / essential infertility" distinction. But let's look more broadly at the claim that "gay marriage will undermine the institution of marriage." What exactly is "the institution of marriage"? I'm married, lots of people are married, I understand people being married. But what does "the institution" refer to, and just how will "gay marriage . . . undermine" it.

Duff on Probation Antony Duff (University of Stirling) is one of the great criminal law theorists. So it was with keen anticipation that I read his latest upload to SSRN, uploads Probation, Punishment and Restorative Justice: Should Al Turism be Engaged in Punishment?. This paper will becoming out in the Howard Journal of Criminal Justice, Vol. 42, pp. 181-197, May 2003, Here is a taste from the abstract:
    The argument of this article is that we should understand probation as a mode of punishment: not as the kind of 'merely punitive' punishment which is all too familiar in our existing penal systems, but as a mode of constructive punishment which seeks to bring offenders to face up to the effects and implications of their crimes, to rehabilitate them, and to secure the kinds of goal - reparation and reconciliation - that are emphasised by advocates of restorative justice. To support this argument, I sketch a conception of punishment as a communicative enterprise in which probation officers would play a crucial role - not merely in administering sentences, but as mediators between offenders, victims and the wider community.
Download it while it's hot!

New Papers on the Net 1 SSRN was down for routine maintenance for several days, so there is a large backlog of papers. Here is Part I of today's roundup:
    Sabrina Regent (International Institute for Labour Studies) uploads The Open Method of Coordination: A New Supranational Form of Governance?, forthcoming in the European Law Journal. From the abstract:
      The open method of coordination (OMC) has emerged as a new policy instrument in the European context. While it was initially confined to the employment field, it has recently been applied to several other areas. The aim of this article is to provide a reconstruction of the OMC. The focus is in particular on the structure and process of the OMC, but also on the new approach to law that it proposes. The OMC differs from traditional EC methods but also from traditional soft-law mechanisms. In order to highlight those original features, the paper analyses the key steps in the evolution of a strategy, the European employment strategy, which slowly became a new mode of governance.
    Pavlos Eleftheriadis (University of London, Law) posts Cosmopolitan Law, forthcoming in the European Law Journal. From the abstract:
      The European Union need not choose between the two options of a federalist constitution or a loose intergovernmental association of states. There is a third possibility. This is described by Kant as an order of perpetual peace, whereby states undertake to one another to be good republics, to join in a federation of peace, and to respect the rights of each other's citizens. For Kant this corresponds to a combination of principles of constitutional law, international law and, a new category, "cosmopolitan law". If we adopt Kant's concepts we can see, first, that the international law of human rights has become some kind of cosmopolitan law of the international community and that, second, parts of European Community law can also be seen as cosmopolitan law for its member states. The features of cosmopolitan law are that it does not follow a conventional theory of sources of law, it does not respect traditional state sovereignty and does not require a hierarchy of institutions for its interpretation and application.
    Jo Deakin and Jon Spencer (University of Manchester) offer Women Behind Bars: Explanations and Implications, forthcoming in the Howard Journal of Criminal Justice. From the abstract:
      Increases in the women's prison population in the UK, in line with many other industrialised countries, is occurring at an alarming rate and yet the types of offences for which women are imprisoned and the lengths of sentences they receive suggest that most present little risk to society. However, the personal and social costs to these women and their families of being imprisoned, and the economic costs to society, can be immense. Through an analysis of official statistics, this article explores some possible explanations for the growth in female imprisonment set within the framework of effective practice with a particular emphasis on the actuarial approach to managing offenders.
    Elaine Genders (University College, London) provides Privatisation and Innovation - Rhetoric and Reality: The Development of a Therapeutic Community Prison, forthcoming in the The Howard Journal of Criminal Justice. From the abstract:
      Privatisation is here to stay, albeit under the rhetorical guise of public-private partnership. All new prisons are now provided by means of competition. The recent issuing to potential contractors of the invitation to tender, and award of contract to Premier Prisons, for the DCMF (design, construction, management and finance) of the first purpose built therapeutic community prison HMP Dovegate (opened in November 2001) illustrates well some of the advantages and disadvantages inherent in the private as opposed to public mode of provision of innovative regimes.
    Daveed Gartenstein-Ross posts A Critique of the Terrorism Exception to the Foreign Sovereign Immunities Act. From the abstract:
      While the Foreign Sovereign Immunities Act generally prevents foreign states from being the subject of lawsuits in U.S. courts, countries that have been designated as state sponsors of terrorism by the Secretary of State are exempted from this protection. Judgments entered under this "terrorism exception" already total more than $4 billion, with a number of suits still pending. These judgmetns may pose difficulties for the United States by shifting foreign policymaking power from the executive to the courts, encouraging retaliatory legislation, provoking hostility internationally, and posing barriers to normalization of relations with defendant states. In this Note, Daveed Gartenstein-Ross argues that, because the costs of the terrorism exception are substantial and the benefits minimal, the terrorism exception is a harmful piece of legislation. He explores alternatives policies that the United States can pursue.

Monday, July 14, 2003
    The Academy and the Profession: Copyleft and Copyright This is one in a series of posts aimed at creating a meaningful dialog between the academy and the profession over IP. On the one hand, many IP lawyers see the academy as the copyleft, in other words, as anti-IP. On the other hand, many in the academy believe that the profession has intellectual blinders on, making arguments that favor their client's interests but lack intellectual integrity. My suggestion is to focus on the merits of the arguments. So here goes.
    Scrivener's Error, Part I: "Logical Vacuum"
      Petit's Argument C.E. Petit over at Scrivener's Error has been blogging on the economics of copyright.
        The real difficulty with economic arguments against particular aspects of IP, such as the length of term accorded a copyright, is that they are arguments in a constitutional and logical vacuum. The vast majority of the individuals and organizations who argue against long copyright terms, for example, do not earn a living based directly upon income from their intellectual property. Richard Stallman, for example, is a tenured professor. Yes, professors do earn a living from IP, but only indirectly; the number of copies of a particular journal with one of Stallman's articles in it has at best an indirect effect on his income. This often results in a peculiar blindness toward the consequences of weakening IP protection, most especially for copyright. (In the postindustrial economy, the most valuable patents are on ideas, not mechanisms, and thus perhaps more akin to copyrights than to intermittent windshield-wiper control systems, which makes for some very interesting tangents.) It is fine to argue against long copyright terms in the abstract. The unanswered, and all too often unconsidered, corollary issue is "What alternative means do you offer to promote progress in science and the useful arts as commanded by Article I, Section 8, clause 8?" Government subsidies for artists are not an acceptable answer; down that path one finds all those Soviet artists whose names no one knows, because their work was essentially censored. Patronage is no better, whether of wealthy individuals or of organizations; censorship without any means of objecting to it, even in the courts, is worse. The problem, instead, is with who actually owns copyrights. That so many copyrights are not owned by the actual creators, but instead by middleman corporations, seriously distorts the entire debate. Simply prohibiting ownership of copyrights by business entities, however, does no good whatsoever, for then very little collaborative art (such as classical music recordings and cinema) would be possible. Can you imagine trying to get copyright clearance from each individual member of an orchestra and opera company to produce an edited version of Der Ring des Nibelungen?
      Intellectual Blindness? The charge is that IP academics lack of an economic stake in their own intellectual property "often results in a peculiar blindness toward the consequences of weakening IP protection, most especially for copyright." This is an amazing argument. Petit is actually arguing that only those who have an economic stake in IP protection can see the consequences of weakening IP protection. Several points here:
        First, Petit provides no examples of such intellectual blindness. He does not mention a particular consequence that a particular academic failed to acknowledge. Of course, his argument requires more than one example, to make good his claim, he would need to show a pattern of intellectual blindness.
        Second, Petit does not show that weakening IP protection would have socially undesirable consequences. What bad consequences would have resulted from nonretroactive extension of the copyright terms? What bad consequences would result from shorter copyright terms? Of course, there are wealth effects. Longer terms and retroactive extensions transfer wealth from consumers to copyright holders, but simple wealth transfers are not, by themselves, good or bad.
        Third, Petit is wrong about the facts. Many academics derive significant income from their intellectual property, but still believe that IP protection is too strong. A good example is Larry Lessig who has written two books that are best sellers for the academic world.
        Fourth, and most important, Petit has gotten the bias effect of self-interest topsy turvy. The usual inference from economic self interest in bias. There is a natural human tendency to believe that policies which favors one's own interests are also just or socially desirable. This effect is well-document by empirical research and is part of folk wisdom. Petit believes the opposite. He argues that self-interest reduces bias and a lack of interest increases bias. This belief actually undermines Petit's position. If those who lack an economic interest believe that IP is overprotected and those who are self-interested believe it is not overprotected, the natural inference to draw is that the case that current levels of protection are socially desirable is the product of self-interest. To be sure, this inference is weak, but to the extent that bias cuts one way or the other, it cuts against Petit's position.
    Scrivener's Error, Part II: Rent Seeking
      The Economics of Copyright Terms Take the question of copyright term extension. The CTEA extended the term for works for hire from 100 to 120 years. Will this provide a significant economic incentive for the "progress of science," i.e. the creation of new works. A simple economic model of copyright terms and authors' incentives begins with the notion of expected value. Take a very simple case. Suppose that copyright law provides a fixed fifty-six year term, and further suppose that a given work will produce royalties of $1000 at the end of the first year, with royalties declining by 1% per year. If the author were deciding at the beginning of the first year whether to create the work, the author would add the discounted present value of the payments that would be received in each addi-tional year. In order to calculate a discounted present value, we must assume a discount rate. Let us suppose the discount rate is 5%. Thus, a payment of $1000 at the end of year one has a discounted present value of $952.38, the amount that would yield $1000 if it were placed in a savings account bearing simple annual interest of 5%. The discounted present value of $1,000 to be paid in 100 years is effectively zero. In fact, the economic case for term extensions is actually much worse than this. There is good empirical evidence that firms use a much higher discount rate than 5% for long-term decisions. Moreover, the actual economic models employed by investors in IP usually assume zero revenues after a remarkably short periods. For example, the economic model used by one major studio to make "green light" decision on motion picture productions assumes zero revenues starting three years after release.
      Rent Seeking So what are the implications for public policy evaluation? In a post last week, I argued that the CTEA, which retroactively extended copyright terms by 20 years (from 100 to 120 years for works for hires) was rent seeking legislation. That is, the CTEA effected a wealth transfer from consumers to copyright owners without producing any corresponding social benefit.
      Petit's Criticism C.E. Petit offered the following criticism of my argument on Scrivener's Error:
        The fallacy here is a simple one: Note that seeking a rent from physical property, such as mineral rights in a piece of real property (note that "rent" has a specific economic meaning not related to the so-called "rent" on an apartment), does not receive similar condemnation (and, based on the remainder of his blawg, I would assert that such condemnation would be inconsistent, but that's for another time). Put another way, some properties are more equal than others.
      The Economic Difference Between Copyright and Property in Physical Resources Petit is right. The property right in physical resources is unlimited in duration, whereas copyrights have limited duration. And Petit is also right that the owners of physical resources derive an economic rent from their use. But there is a crucial difference. The making of copies involves what economists call nonrival consumption. I can make a copy of my copy of book or CD or DVD without reducing the ability of any other person to make a copy of their own copy of the same book, CD, or DVD. Physical resources are different. If I build a structure on a piece of land, you cannot build a structure at the same location. Consumption of land is rivalrous. If I consume a barrel of oil, you cannot consume the same barrel. Consumption of oil is rivalrous Allowing perpetual private ownership of physical resources puts them to their highest and best use, creating a net welfare gain. The alternative, common ownership, results in the famous tragedy of the commons. Thus, if real-property ownwership were term limited, at the expiration of the term of your fee simple, anyone could come into your house and start living their. The result would be a degradation in the value of the common resource. Houses are only valuable if you can exclude others. There is a well-known economic justification for perpetual property rights in physical resources that simply does not apply to intellectual property. Because very long terms and retroactive term extensions create wealth transfers but do not create a corresponding social benefit, they are "rent seeking pure and simple." Perpetual property rights in physical resources do have wealth effects, but they create enormous social benefits.
    More Dialogue So here is my uncomfortable conclusion. The gap between the academy and the profession is very wide indeed. Undoubtedly, the copyfight will continue, but I have another suggestion, which is more dialogue. Will this lead to agreement? Probably not. But it might produce mutual respect and understanding, and in my opinion, that would be worthwhile.

Volokh Opposes the Victim's Rights Amendment His letter to Senator Hatch is here.

More on Guinn The Guinn decision by the Nevada Supreme Court, effectively nullifying the 2/3rds vote required for revenue measures under the Nevada Constitution, has stirred enormous controversy. Timothy Sandefur has a piece on NRO titled Throwing Out the Rules: The Nevada supreme court tries legislating. Here is a taste:
    The court . . . ordered the legislature to pass the budget under simple majority rule. Since "the procedural two-thirds revenue vote requirement in effect denies the public its expectation of access to public education," said the court, "the two-thirds requirement must yield to the specific substantive educational right." This is an unprecedented and extreme ruling, which ignores fundamental principles of democratic government. The whole point of having a legislature is so that representatives can debate and reach agreement on important issues. Their arguments and decisions may not please us, but in the end, we are freer by following this "procedure." That's why legislatures have always been held immune from lawsuits like these. Parliament was immunized from such lawsuits centuries ago, as William Blackstone explained, "in order to protect its members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown."
I've collected a variety of resources, which you can access here.

Sunday, July 13, 2003
The Bashman Review of the National Constitution Center in Philadelphia can be found here.

Everything you always wanted to know about Hamidi Here.

Are you bright? The erudite and usually sensible Daniel Dennett is, but I am not sure I want to be a member of the club (even if I am a member of the set). Why not?

Saturday, July 12, 2003
The Academy and Civil Society Susan at kind of bluegreen writes:
    it's informative in a very worrying way to see how academics talk about themselves and their profession. They're thinking in a 20th century or even 19th century framework. It's very troubling. It's so odd and quite possibly tragic. American culture is in desperate need of the depth of knowledge and capacity for critical thinking that are stock and trade in the academy. Many intelligent, interesting, hard-working non-academics are starving for the kind of work academics are drowning in. Something really major needs to happen, a complete re-working of the place of academia in society and a complete reworking of academic culture.
And Gary Sauer-Thomposon at comments:
    The reworking of academia that is being done by the state's use of the market is rapidly turning ethical institutions in civil society into business corporations. The power of the state is being used to gear the universities into ensuring wealth creation in the knowledge economy. From the liberal state's perspective it is right and proper that this happens since the wealth of the nation depends on it. What is being lost, and forgotten, in this process is the old connection of the university to citizenship and liberal democracy and to fostering citizenship as participation, as an expression of human agency in the political arena.
A minor and obvious observation: the Internet has surely begun to change the connection between the academy and civic culture. Even a stodgy, old-fashioned blog like Legal Theory reaches an audience outside the Ivory Tower, and many other academic-based blogs (Volokh, Crooked Timber, etc.) have a wide audience that reaches into legislatures, courts, the press, and a variety of civil-society institutions.

Guinn v. Nevada State Legislature
    Introduction Nevada, like many states, is in the midst of a fiscal crisis. The Governor sued the Legislature and the Supreme Court issued an order to the legislature to balance the budget and fund the schools by simple majority vote, despite an explicit provision in the State Constitution requiring a 2/3rds vote for revenue measures. In an extraordinary opinion, the Court reasoned that this procedural requirement must give way to the substantive provisions mandating a balanced budget and funding for education. I've gathered a few resources for those interested in the case.
    Coverage on the Volokh Conspiracy Eugene Volokh has done some excellent blogging on Guinn. Here, here, and here.
    Legal Documents News & Commentary:

Call for Papers on Law and Democracy
    The University of Pennsylvania Law Review is pleased to announce its 2003-2004 Symposium: The Law of Democracy Since Bush v. Gore We anticipate that the symposium will include four to five panels and cover a broad array of topics, including campaign finance, redistricting, political parties, and the impact of Bush v. Gore three and a half years later. The symposium is tentatively scheduled for Friday, February 6th and Saturday, February 7th, 2004 at the University of Pennsylvania School of Law, Philadelphia, Pennsylvania. The Law Review welcomes your papers or proposals on any of the above topics. To be eligible for publication, paper submissions should be approximately 30-50 pages in length. All submissions must be received by the Articles Office by August 10, 2003. Please send submissions to: University of Pennsylvania Law Review Attention: Articles Editors 3400 Chestnut Street Philadelphia, PA 19104 Be sure to specify that your paper is to be considered for the 2003-2004 Symposium. Thank you for your consideration. We look forward to reviewing your submissions. Sincerely, Evan J. Benanti Elizabeth Diffley Alva C. Mather Rosanna M. Taormina George P. Varghese Articles Editors, Volume 152 University of Pennsylvania Law Review

Friday, July 11, 2003
The "Homosexual Agenda" Here is the Balkin take on the now infamous phrase in Justice Scalia's Lawrence Dissent.

Law and Philosophy for July The July 2003 issue of Law and Philosophy is available to subscribers on the net. Here are the contents:
    Neutrality and Judicial Review, Schauer F. Designing Judicial Review: A Comment on Schauer, Sherwin E. Rights-Based Judicial Review: A Democratic Justification, Harel A. Is Judicial Review Democratic? A Comment on Harel, Alexander L. Judicial Review, Rights, and Democracy, Spector H. Moral Rights, Judicial Review, and Democracy: A Response to Horacio Spector, Underkuffler L.S. Forms of Judicial Review as Expressions of Constitutional Patriotism, Tushnet M. Weak and Strong Judicial Review, Sinnott-Armstrong W.

New Papers on the Net Here is the roundup:
    Johnathan O'Neill (University of London, School of Advanced Studies) uploads Marbury v Madison at 200: Revisionist Scholarship and the Legitimacy of American Judicial Review, forthcoming in the Modern Law Review, and reviewing William E. Nelson, Marbury v Madison: The origins and Legacy of Judicial Review.
    Anthony Catanach and Shelley Rhoades (Villanova, Business) offer Enron: A Financial Reporting Failure?, forthcoming in the Villanova Law Review. From the abstract:
      Investigations into the demise of Enron Corporation have identified accountants and their "gimmickry" as a major determinant in this dramatic financial collapse. Yet, when Enron's accounting is debated, most discussions fail to disentangle three issues critical to preventing such an occurrence in the future: the application of current financial accounting standards, the adequacy of financial disclosures, and the quality of the independent auditor's performance. While a recent corporate oversight bill suggests some limited progress on addressing disclosure (e.g. CEO and CFO certifications) and auditor independence (e.g. regulatory oversight board), much less attention has been directed to the role of financial accounting standards in facilitating this "gimmickry." Were weak accounting rules responsible for Enron's major earnings restatements? This paper discusses how Enron misapplied accounting rules to manage earnings and issue misleading financial reports that failed to reflect economic reality. While the adequacy of existing accounting standards will no doubt continue to be debated, it is clear that Enron's major accounting problems resulted from management's erroneous application of generally accepted accounting principles.

Truth, Advocacy, & Scholarship & An Update As an aside, I recently wrote: "I care more about the truth than I do about what side I am on. So I frequently criticize arguments offered in support of positions I agree with. I guess that is why I am a scholar and not a lawyer or political activist." Eric Enlow emails with a very thoughtful comment:
    Obviously a casual remark and not intended to make any waves. But I just wanted to remind you that legal advocacy/practical lawyering is also about truth finding, at least ethical legal advocacy is. The ethical legal advocate is just interested in a more particular truth than the academic or judge but no less interested in the truth. The academic is typically interested in determining as a general matter what the law is or who should generally prevail under the law. The judge has a more particualr focus: what is the law of this case and which of two parties should prevail under that law. The advocate is interested in an even narrower question: what in truth are the legal principles that support my client's case and what are the reasons that he should prevail under the law. I have never offered a legal argument that was false and I have confidence in opposing counsel not to make such arguments. Further, in my experience, both I and opposing counsel regularly bring up and address legal principles which are disfavorable to our position -- not just because we are ethically bound to -- but because only by doing so can we explain why they should not apply to the case at hand. In sum, scholars do not care about the truth more than advocates or judges -- they care about much more general truths. Now, advocates and judges have a temptation to waiver from the truth for the advantage of their client or to enforce their own will. Scholars too have less temptation because the immediate advantages are not as great. But the disinterestedness of scholars has its own liabilities, e.g. to become cut off from what are compelling and living issues. These scholars waiver from the Truth, not because what they say is false, but because what they have self-indulgently learned truths that please themselves rather than serve others.
Update: Chris Monsour writes:
    I think that your original statement was more accurate than Enlow's revision -- it's misleading to say that practical legal advocacy is just as concerned with "truth" as is legal scholarship. It is true, of course, that the legal system is concerned with generating truth, but I don't think that's the role of the ethical legal advocate. Enlow writes, "I have never offered a legal argument that was false." If he means that an ethical advocate ought not offer arguments that are patently frivolous, or ought not deliberately mislead the court, then of course he is correct. But once a legal argument reaches the realm of plausibility, isn't it the ethical advocate's job to make the argument whether or not he personally believes it to be the legally correct answer? So yes, I suppose an advocate is interested in "truth" -- but only in the truth about what legal arguments and principles are plausible and help the client -- not (per se) in truth about what are the right legal principles, or which arguments are ultimately successful, which is the sort of truth I think you were referring to. But *everyone* is interested in the truth about what helps their position -- so this is hardly something noble. The nobility of ethical legal advocacy, I think, comes not from truth-seeking but from providing a legal voice to those who need it (be they huge corporations or penniless individuals) -- and, of course, from playing one's proper role in a *system* that one hopes ultimately serves the end of truth and justice.

Hayek, Authoritarianism, and Democracy Check out Brad DeLong and Greg Ransom on Hayek.

Liberty and the Privileges and Immunities Clause Check out Timonthy Sandefur here and Legalguy here.

The Incredibly Strange Constitution That Stopped Living and Became a Mixed-Up Zombie It all started with Jonah's Goldberg's It's Alive. Then there was my sequel Die, Constitution, Die!. Then Jonah's Faster Textualists, Kill Kill and my Night of the Living Dead Constitution. Now Howard Gillman emails with more on the origins of the phrase "living constitution," which you can peruse at The Collapse of Constitutional Originalism and the Rise of the Notion of the ‘Living Constitution’ in the Course of American State-Building, 11 Studies in American Political Development 191 (1997). Gillman is one of our finest constitutional scholars and political scientists. Everything I've ever read by Howard has been rewarding. (How about an online version Howard?) Oh, and by the way, yes, in 1963--here.

Thursday, July 10, 2003
Justice Kennedy's Libertarian Revolution Randy Barnett's column on NRO is a must read.
Update: Check out these comments by Prestopundit.

Night of the Living Dead Constitution, Part 1 of 3 There have been lot's of reactions in the Blogosphere to my post, Die, Constitution, Die!, responding to Jonah Goldberg's It's Alive. Check out this post by Kenneth G. Cavness on Cogicophony and this reply by Randy Barnett on the Corner. And here is an email reaction from Brett Bellmore. And on Freespace, Timothy Sandefur provides the origin of the phrase "living constitution":
    That phrase appears to have been first used in The Living Constitution by Howard Lee McBain, a book published in 1928, as part of the Worker’s Bookshelf. It’s a relatively unremarkable book by a Progressivist legal theorist, which I blogged about a few months ago. Shortly after McBain’s book was published, Rexford Tugwell, who would later come to prominence in FDR’s “brain trust,” published an article called “That Living Constitution” in The New Republic, (June 20, 1928) in which he denounced the Supreme Court for “turnin[ing] back the legislative hosts who would encroach upon the privacy of business.” He complained about “[t]he stiffer legal minds of the Supreme Court [who] either still describe industry to themselves in the terms of Adam Smith or...possess a faith in the benevolence of modern business which we cannot share.” Tugwell obviously agreed with Holmes’ view as expressed in his Lochner dissent. “For those who are interested in such changes,” concluded Tugwell, “as...securing adequate social insurance, in the greater coordination of industrial affairs by national planning, there remains, apparently, some hope--but only so much as can conceivably be clustered about the possibility of minorities being transformed into majorities by the passage of time or the prescience of Presidents.” Guess he got what he wanted.
Scroll down for Parts 2 and 3.

Night of the Living Dead Constitution, Part 2 of 3
    Southern Appeal's Critique Southern Appeal has a very thoughtful reaction to my post, Die, Constitution, Die!, responding to Jonah Goldberg's It's Alive. Here is an excerpt from Southern Appeal's comment:
      O.k., maybe I am misreading this but it seems as though the professor is saying one of two things: (a) all theories of constitutional interpretation are of equal validity; or (b) all theories of constitutional interpretation are essentially b.s.--i.e., means by which judges can impose their own subjective beliefs on the rest of us. But this is simply not true. All theories of constitutional interpretation are not equal. Indeed, I would contend that originalism (which could also be called constitutional textualism) is the only legitimate theory of constitutional interpretation. Why? Because it, unlike every other constitutional theory of interpretation, provides judges with objective reference points from which they may reach a legal conclusion:
        (1) text (in isolation or as understood in pari materia);
        (2) extraconstitutional documents from the relevant ratification periods that explain how the text in question was originally understood by the men (and later women) who drafted it and the States that ratified it; and
        (3) in questions involving State sovereignty, extraconstitutional documents in existence prior to ratification that demonstrate the scope of the sovereignty retained by the States after the ratification of the federal Constitution (i.e., those powers not specifically enumerated in the Constitution).
    My apologies to Southern Appeal and many other readers who my post misled. Not all constitutional theories are created equal. Indeed, on the question of which theory is best, I think I mostly agree with both Southern Appeal and Jonah Goldberg, because as I said in Die, Constitution, Die!, I believe in formalism. That is, I believe that judges should follow the plain meaning of the text and then resort to history (original meaning) to resolve ambiguities.
    A Confession Why then did I say, "In the courts, the Constitution will mean what the Justices say it means, whatever theory of constitutional interpretation the Justice's adopt, whether that theory be originalism, textualism, or a contemporary ratification view. Think about textualism"? What I am about to say may seem quite odd, but it is the truth. I care more about the truth than I do about what side I am on. So I frequently criticize arguments offered in support of positions I agree with. I guess that is why I am a scholar and not a lawyer or political activist.
    Institutional Fact versus Normative Theories of Interpretation So when I said, "In the courts, the Constitution will mean what the Justices say it means, whatever theory of constitutional interpretation the Justice's adopt," I was reporting an institutional fact. Jonah was right when he said that a living constitution will mean what the Justice's say it means--as a matter of institutional fact. But Jonah is simply mistaken if he believes that in the courts, the constitutional will not mean what the judges say it means if the judges adopt a more formalist normative theory of constitutional interpretation. In our system, judges have authority to interpret the constitution. Because of that authority, cases will be decided in accord with the judges reading of the constitution, whatever theory they adopt. So this institutional fact doesn't cut any argumentative ice, either for or against particular normative theories of constitutional interpretation.
    Back to Southern Appeal So Southern Appeal gives the following interpretation of my comments:
      The professor seems to presume that all methods of constitutional interpretation result in judges imposing their own subjective values.
    But I didn't say this, and I don't agree with it. But I do agree with a proposition that is superficially similar, but substantively quite different. I would agree with this statement:
      All methods of constitutional interpretation result in judges imposing their own subjective interpretation of what the constitution means.
    And once again, this is a fact, not a normative proposition. Now, if the judges are good, their subjective interpretation will agree with what the constitution does mean from an objective perspective. (Or more precisely, be within the range of objectively reasonable interpreations from an objective perspective.) But this depends on the judges being good judges. No theory of constitutional interpretation can prevent the distortion of constitutional meaning if that theory is wielded by a judge who is stupid, lacks sound practical judgment, is a civic coward (e.g., cares more for the possibility of promotion than for the law), and so forth. There is no way for the Constitution to be applied in the courts without engaging the subjective understandings of judges. The Constitution cannot act on its own. So what kind of judges will get the constitution right?
    The Aretaic Turn Revisited And this brings me back to the aretaic turn. "Aretaic" is the adjective form of the Greek word "arete", which can be translated as "excellence" or "virtue." My criticism of Jonah Goldberg was that his post implicitly assumed that judges who would employ his theory would be excellent judges, with all the capacities and dispositions that would enable them to be faithful to the dead constitution, while simultaneously assuming that judges who apply a living constitution (or contemporary ratification) theory would be vicious judges, substituting their own preferred (and elite) meaning for the popular understanding which is required by contemporary ratification theory. Each theory of judging has a corresponding theory of judicial virtue. When comparing theories of juding, it is absolutely crucial to be careful about one's assumptions re the judges who will implement the theory. Thus, one can compare originalist judges with the originalist virtues to contemporary ratification judges with the virtues required by that theory. That's a fair comparison. But Jonah Goldberg didn't do that. His indictment of contemporary ratification theory assumed vicious judges, and his defence of originalism/textualism assumed virtuous judges. That's a bad argument, even if deployed as support for a good theory.
Scroll up for Part 1 and scroll down for Part 3.

Night of the Living Dead Constitution, Part 3 of 3 Jonah Goldberg's It's Alive on NRO argued in favor of a "dead constitution." Although I agree with with the main thrust of Goldbeg's position, I argued that one of his arguments was fallacious in Die, Constitution, Die!. Jonah responded in Faster Textualists, Kill! Kill!. Here is the gist of his reply:
    [I]t seems to me the gist of [Solum's] point is that a dead constitution is not much more useful than a living one if the Justices charged with reading it are arrogant jerks with no sense of responsibility or reverence for the rule of law. * * * I entirely agree with him except where he says I'm actually wrong. He proposes, as far as I can tell, to emphasize the appointment of truly excellent judges (not in the Bill & Ted's Excellent Adventure sense nor in the Monty Burns "E-x-c-e-l-l-l-l-l-e-n-t sense but in the literally excellent sense) who revere the rule of law. He calls this an Aretaic turn. Okay, that's cool by me. I am all for judges constrained by the dogma of excellence, virtue and the rule of law (Heck, I've been down with good dogma for a long time). But, it seems to me, that an excellent, virtuous and rule-of-law-loving judge would consider the Constitution to be far more dead than alive. In other words, Solum says my theory is useless if we don't have excellent judges. Fair enough. But I say that a good judge would, by definition, not veer too far from what my good theory dictates (barring the occassional exceptional situation). Again, I could be wrong, but Solum seems to be saying in effect traffic laws are useless without conscientious drivers. And I agree with that. But if I were to ask the average person what a conscientious driver is, he'd probably say "someone who obeys all the traffic laws."
Yes! But before I extoll Jonah's virtues, let me quickly say that this isn't what I disagreed with--for more on that, see Part 2 of this series of posts. On the main point, Jonah is exactly right. Let me put his point another way. Excellent judges need the judicial virtues. They need judicial intelligence and a deep learning in the law. Good judges need practical wisdom, the ability to size up a case and see what is relevant and what legal remedies will work. Good judges need a judicial temperment and civic courage. And of course, an excellent judge must have the virtue of justice. What is that virtue? It is the dispotion to decide the cases before them in accord with the law, and not in accord with their own views of what the law should be. This means that good judges must have the virtue of judicial integrity: they must care about fidelity to law and the coherence of the law. So Jonah got it exactly right. If we were to ask the average person what a conscientious judge is, she'd probably say, "someone who appies the laws correctly."
Scroll up for Parts 1 and 2.

Fast Forward Richard Posner's Aimster opinion includes the following:
    [C]ommercial-skipping, [amounts] to creating an unauthorized derivative work …, namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since “free” television programs are financed by the purchase of commercials by advertisers.
The real point of this post is the pointers at the end, but I am not sure that Posner's argument works at the technical level. Fastforwarding does not create a "commercial free copy." Unlike a PC which loads a copy of programs (or portions of programs) into RAM, a VCR does not load a copy of the tape into RAM. (Playback results in instantaneous copies of each moment, but this is playback not copying.) The only copy is the tape, and the tape includes the commercials. The performance (the playback) does not include the commercials, but it is not a copy. But what I really wanted to do is to point you to this post by Henry Farrell on Crooked Timer and this post by Ed Felter on Freedom to Tinker.

Law, Politics, and Press on Rosen on Lawrence Check out this post on Law, Politics, and Press.

Libertarians & Lawrence Legalguy argues that libertarians should not rejoice in Lawrence. Here is an excerpt:
    Why should social libertarians care, however, if the Supreme Court tends to be amending the Constitution in ways that favor their social preferences?
      (1) Because it can be dissolved almost as quickly as it was created. Because the judicially created rules are simply that – judicial creations void of any support in the text, history, or structure of the Constitution. Remember Lochner? The Court tried to imbue the Constitution with economic libertarian principles in Lochner but the Court later overturned it. * * *
      (2) With so much power, there is no guarantee that the Supreme Court will stop at the Millsean Libertarian principles. In Lawrence, the Court simply applied its own normative judgment that anti-sodomy laws were undesirable. There is no more substance to the opinion. What is to stop the Court from making similar legislative choices in later cases? Under Lawrence, absolutely nothing. By creating a super-legislator, which is not subject to the people, we have created the exact opposite of a democracy and a republic, where the super-legislator is controlled only by his own desires (until the people rise up in rebellion).
Before I criticize, I should lay my cards on the table. (1) My approach to constitutional theory is formalist. Judges should look to the text and, in the case of ambiguity, history, and (2) Although I wouldn't characterize myself as a libertarian, I am committed to a liberal framework that incorporates both a commitment to the market and basic liberties. So I actually agree with some of Legalguy's aims. With that out of the way, I don't think that Legalguy's arguments work:
    First, it is not so clear that there isn't a textual basis for the decision in Lawrence, although that basis would not be the one that Kennedy provided. Textualists must take seriously the 9th Amendment and the Privilege and Immunities Clause of the 14th Amendment. Randy Barnett has argued persuasively that an originalist and textualist understanding of the Constitution does support constitutional libertarianism (in his forthcoming Restoring the Lost Constitution ). Libertarians should take his arguments with the utmost seriousness.
    Second, precedents are no more fragile than text. If the Court is determined to be realist, then the text too is just paper.
    Third, although it is true that the judiciary can become a sort of superlegislature, there are institutional limits on judicial power that make the judicial branch a less potent threat to individual liberty than the policial branches (legislative & executive). The judiciary lacks the power of the purse and the sword, and hence can coerce only with the assistance of the other two branches.
Nice post Legalguy!

Copynorms & Litigation Costs
    The RIAA's Big Stick Declan McCullagh has a very nice piece titled P2P's little secret on CNET News. With the RIAA going after individual users, really good anonymity becomes a selling point for P2P software. I find this area fascinating, and not just with my cyberprof hat on. From a legal theory point of view, McCullagh's story reminds me again that intellectual property law has been a dismal failure at producing internalized norms. Firms and consumers see it as perfectly normal behavior to attempt to evade legal regulation. But there was another interesting angle to the story:
      Lance Cottrell, founder and president of says one reason he has chosen not to extend his identity-cloaking service (which sells for $30 a year) to peer-to-peer networks is the threat of lawsuits from the music industry. Anonymizer provides only anonymized Web browsing and dial-up services. "We have not enabled our service to work with the Gnutellas of the world," Cottrell said. "The problem is that the RIAA has the kind of money that, whether you're right or wrong, you're out of business. It's not whether you win or lose, but whether you survive the litigation."
    As any good proceduralist knows, litigation costs are an oft-neglected but crucial variable in the analysis of almost any legal problem. The RIAA can rely on the in terrorem effect of threatening litigation, so long as it can identify a target defendant. This raises an obvious and difficult question: what theory of procedural justice could justify this state of affairs?
    Litigation Costs and Procedural Justice Consider the three standard models of procedural fairness:
      1. The Accuracy Model. A system of dispute resolution is fair to the extent is maximizes accuracy (finds facts and applies the law correctly).
      2. The Balancing Model. A system of dispute resolution is fair to the extent it strikes a reasonable balance between the benefits of accurate adjudication and the costs of litigation.
      3. The Participation Model. A system of dispute is fair insofar as it allows those who will be affected by the outcome an fully adequate opportunity to participate in the proceedings and the decision process meaningfully takes such participation into account in rendering a decision.
    There are endless disputes about which of these models (or their more nuanced and sophisticated variants) is correct, but this much is clear: litigation costs crucially affect procedural fairness whichever model we adopt. Thus, if litigation costs are sufficiently high and litigation resources are unequal, we can get the following interesting result. On the one hand, in those cases that are actually litigated to conclusion, the system might look like it was maximizing accuracy. All of that discovery, trial-time, etc., results in more accuracy in the individual case. (Call this individual case accuracy) On the other hand, the system as a whole may systemically produce inaccurate results as litigants with meritorious claims or defenses are forced to settle (or not to litigate at all, i.e. Lance Cotrell's statement above). (Call this systemic accuracy.) The relevance of litigation costs to the balancing model is obvious, and it takes only a moments reflection to realize that litigation costs can easily serve as a barrier to effective participation in the dispute resolution process. Our civil litigation system requires rough equality of litigation resources as a prerequisite for basic fairness, but in many contexts, one side has a systematic advantage. In other words, if procedural fairness is our goal, the system is broken. But how might it be fixed?
    The Flip Side So far, I've only been telling one side of the story. IP stakeholders would have a very different tale to tell. The RIAA also has a complaint about cost. Let's assume that much P2P activity violates the rights of copyright owners. (I think this assumption is correct, but I'm only asking you to go along arguendo.) From the copyright holders' point of view, litigation costs are a nightmare. Sure, the RIAA can go after the Napsters of the world, but the Napster was particularly vulnerable because of its centralized file server. But the RIAA cannot shut down P2P by going after the program originators--there are two many true P2P programs out in the wild. Gnutella variants and Freenet can be operated by small to medium scale groups of users without any central coordination, and hence without any target defendant.
    Norms and Litigation Costs And this brings me back to my first point. The Copyright laws have not generated corresponding norms. Outside the IP business and legal communities, hardly anyone thinks that using P2P to share moderate numbers of MP3 files is wrong. The RIAA will not be able change individual behavior by deterring individual file swapping through litigation. To create a perception that individual users are likely to be sued, the RIAA would have to bring tens of thousands of individual actions--perhaps hundreds of thousands. (Remember that governments bring drug prosecutions in the thousands upon thousands without creating a perception that individual users are running a significant risk.) Even the RIAA cannot afford to do this. (100,000 civil actions would cost the industry billions of dollars.) Ironically, the same litigation costs that enable the RIAA to deter firms also disable the RIAA from deterring individuals.
    Norms and Fairness One final point. It is very difficult to generate informal social support for laws that are unjust. The case for copyright is problematic at an abstract theoretical level, but there are virtually no intellectually respectable arguments for the copyright laws in their current form. A copyright term of 5-10 years is (in my opinion) justified; a term of 120 years is rent-seeking, pure and simple--not to mention retroactive extensions. The anti-circumvention provisions of the DMCA might be defended, if technological protections for fair use and use after expiration had been mandate, but in their current form, these provisions provoke a sense of outrage. IP practitioners frequently complain about the academy--the "copyleft" as they are found of saying. Some of this criticism is justified, but much of it is just plain silly. It is hardly surprising that rent seeking legislation generates criticism. I am not optimistic about solutions for any of these problems. Given the Supreme Court's decision in Eldred, the IP industry has an enormous vested interest in the current legal regime and enormous incentives to lobby for even more extreme legislation. The "copyfight" is likely to persist for a generation or more, generating enormous litigation costs and disrespect for the rule of law.

New Legal Theory from Oxford University Press Two new books have been announced by OUP:
    Matthew H. Kramer's The Quality of Freedom:
      In his provocative new book, Matthew Kramer offers a systematic theory of freedom that challenges most of the other major contemporary treatments of the topic.
    Serena Olsaretti has edited Desert and Justice:
      Does justice require that individuals get what they deserve? Serena Olsaretti brings together new essays by leading moral and political philosophers examining the relation between desert and justice; they also illuminate the nature of distributive justice, and the relationship between desert and other values, such as equality and responsibility.

Wednesday, July 09, 2003
Die, Constitution, Die
    The Case for a Dead Constitution Jonah Goldberg has a stimulating piece on NRO titled It's Alive, arguing against a living constitution and for a dead one. Here is a taste:
      A Constitution which changes with the times will inevitably mean that the Constitution only means whatever a handful of "robed masters" say it means at any given time. Not only is this dangerous, for all the obvious reasons, it's not even honest. Indeed, the fundamental deception of the liberal campaign to breathe new life into the Constitution with every generation is the implied suggestion that these changes are democratic in some vague way. The idea seems to be that if the text changes with the generations it must reflect the attitudes of those generations. Unfortunately, that's not really true. The fact is that the Court rarely reflects popular opinion so much as elite opinion. And it almost never reflects popular opinion when the pro-"living Constitution" crowd calls the justices "heroic."
    I have some sympathy for Goldberg's point, but his argument doesn't really work. In the courts, the Constitution will mean what the Justices say it means, whatever theory of constitutional interpretation the Justice's adopt, whether that theory be originalism, textualism, or a contemporary ratification view. Think about textualism. (I am a formalist and a textualist!) Given our institutions, the Constitution will mean what the Justices say it means, even if the Justices are all textualists. And the text may well be given that reading which elites as opposed to popular opinion would assign to it. Likewise, a "living constitution" could be interpreted so as to have its popular meaning--if the Justices wanted it to have that meaning.
    The Fallacy Goldberg's column is guilty of a very common but fallacious move. When criticizing the contemporary ratification or living constitution theory, he assumes that the theory will not be implemented in good faith by judges who are really trying to understood the "contemporary meaning." But when he contrasts the "living constitution" with a "dead constitution" he implicitly assumes that the "dead constitution" will be interpreted in good faith, by Justices with integrity who pay more than lip service to the requirements of their general constitutional jurisprudence. Consistency is the key to correcting this fallacious form of reasoning. It is fair to compare theory A with theory B, assuming both theories are implemented by real-world judges. It is fair to compare theory A with theory B, assuming both theories are implemented by idealized judges who comply with the requirements of the theory. It is meaningless to compare theory A (with ideal judges) and theory B (with real world judges). Goldberg's error is instructive, because it provides a nifty illustration of the importance of judicial character to the analysis of constitutional theory.
    The Crucial Role of Judicial Character And this brings me to my ultimate point. I share with Goldberg a conviction that American constitutional law has all to often been lawless. I share with Goldberg the belief that the restoration of the rule of law is a priority of the highest order. But in order to achieve that goal, constitutional theory needs to make an aretaic turn, developing a theory of judicial excellence or virtue. For more on this, see my Virtue Jurisprudence: A Virtue-Centered Theory of Judging and Theorizing about Constitutional Interpretation: The Aretaic Turn. (Warning: high abstraction quotient in both pieces.)

Update:For more on the living dead constitution, go here & then scroll down.

Music and Law: You've Got the Beat More catching up. Check out this essay by Glenn Reynolds (which is really about Robert Bork). Here is a taste:
    Why have rules if they don't constrain results? There are a lot of reasons for rules, and determining outcomes is only one, and not necessarily the most important. In fact, in many settings, rules have the opposite effect: they can set us free precisely because of the structure that they impose. This is certainly true in music, and is particularly clear in my favorite musical genre, the blues, as a leading guitar text points out:
      Funny thing about the blues. It has a very fixed structure compared to other kinds of music. That makes the mystery! Within its strict confines there is tremendous freedom. One of the greatest things about the blues is its simple form, that hides itself so many ways. The goal of the blues artist is to find new and different life in the form despite repetition of the pattern in song after song.
    Now when I say simple, I don't mean easy. I mean that the basic outline of the form is recognized by both musician and listener. The craft of filling in the form creates a common bond among all blues people .... This accounts for many chance meetings at studios where one blues musician would happen to run into another in the hallway and in the matter of a few minutes, make an historic first-cut record that stays with us forever. What I'm getting at-there isn't a tremendous middle ground for the artist. He is firmly held into the changes, and upon this he can literally count. But from this clockwork base, the pendulum swings the other way to delicate elaboration, off to the side remarks, simple statements with a held silence, crying out your feelings, one or two simple notes played over the bass note, or an understated vocal delivery that floats like a leaf on the way down. That's it .... You will hear what I mean before I am through with you. Rules in law, I believe, play the same role and have much the same effect. The judicial opinion-particularly the law-making appellate opinion-has a simple form, one that is recognized by both the writer and the reader. Not easy, but simple. The craft of filling in that form is the bond that unites lawyers and judges: it is what we do for a living, and it is what allows us to meet in a hallway and talk intelligently about what we do. [FN205] A judge, if she is a good one, is firmly held to the forms, relying on legal sources, legal modes of reasoning and the traditional structure of opinion-writing just as a musician relies on the four count and the eight-to-the-bar reference to the "one and"' sub-beat. But within this clockwork framework, the judge remains free, and efforts to control her reasoning and results through formal theory are no more likely to be successful than efforts to determine, by selecting key and count, what notes a musician (say, Stevie Ray Vaughan or Bukka White) will play when. That is just as well. For judging, at least in our common law system, is a creative endeavor in its own right. If musicianship would suffer from a system in which the creativity of a Stevie Ray Vaughan or a Bukka White were submerged under detailed instructions on what to play when, so too would judging suffer (though in a different way) if judges had to decide cases from what amounted to legal sheet music. For then one judge would be as good (or as bad) as another, and our laws would never be able to evolve or grow, submerging not only the genius of our judges, but the genius of our common law system, which is precisely that it allows growth and change. Instead of viewing our rules as barriers to change, we should view them as sources-and shapers-of that change.

Catching Up Department: Mark Murphy's Natural Law and Practical Rationality I'm finally catching up with Mark Murphy's 2001 book from Cambridge. From the introduction (any typos are mine):
    This book is a defense of a particular natural law account of practical rationality. The first three chapters constitute a defense of the natural law theorist's claim that the fundamental reasons for action are goods that are grounded in the nature of human beings. . . . Chapters 4 through 6 are devoted to the defense and elaboration of the second natural thesis, that concerning the natural law theorist's understanding of how principles of practical reasonableness are to be formulated and justified.
More later in the summer.

Crooked Timber Chris Bertram, Henry Farrell, Maria Farrell, Kieran Healy, and Brian Weatherson--all notable bloggers in their own right--have joined together to form Crooked Timber, which already is full of interesting and thoughtful material. Don't miss it.

Tuesday, July 08, 2003
Sir Edward Coke If you missed Nate Oman's post on Coke (the famous English judge, not the beverage), you can still catch it here. And Gary O'Connor has a very fine reply, here (on Nate's blog). O'Connor's own blog, Statutory Construction Zone, is a wonderful resource.

Legitimate State Interests
    Introduction I've been reading, thinking, and writing about political and constitutional theory for more than twenty years, but I am still puzzled by the concept of "legitimacy," one of the most undertheorized notions in our conceptual vocabulary. "Legitimate" is not a synonym for "right" or "just." Why? Because one can speak of an unjust but legitimate statute or a just but illegitimate statute. If we go back far enough in history, there seems to be a connection between political legitimacy and legitimacy of birth, as in "the legitimate heir to the throne." The modern notion of legitimacy clearly has something to do with process--how rules are made, as opposed to what their specific content is. My puzzlement about legitimacy was intensified recently, by the debate between Justice Kennedy and Justice Scalia in Lawrence v. Texas. The Justices were concerned with a particular form of legitimacy, summarized by the familiar legal phrase "legitimate state interest."
    Legitimate State Interests The phrase “legitimate state interest” plays an important but curious role in American constitutional law. At one time, constitutional scholars might have opined that almost any interest that emerged from a democratic political process would be considered “legitimate,” expressing the notion that so-called rational basis scrutiny of non-suspect classifications under the Equal Protection Clause or of infringements of restrictions on non-fundamental rights under the Due Process Clause was, by design, deferential to the political process. (Think footnote four from Carolene Products) But nowadays, it is far from clear that an interest can easily jump through the “legitimacy” hoop. The importance of “legitimate state interests” was presaged by the Supreme Court’s opinion in Roemer v. Evans and was dramatically underscored by the Supreme Court’s decision in Lawrence v. Texas. In Lawrence, Justice Kennedy’s Opinion of the Court states:
      The Texas statute [prohibiting gay sex] furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
    What makes some state interests “legitimate” and others “illegitimate”? That thorny question is the topic of this post. Here is my strategy. We shall begin with a bit of history, discussing the historical origins of the phrase “legitimate state interest” in jurisprudence from the turn of the century, the New Deal, and the modern era. Next, we shall take a closer look at Lawrence, investigating in depth the idea that the state lacks a legitimate interest in promoting morality. Then, we shall back up and interrogate the concept of “legitimacy.” In the end, we will ask the question: does the notion of a “legitimate state interest” do any useful work in constitutional law?
    A Bit of History
      Early Decisions The notion of a legitimate state interest first appeared in a Supreme Court decision in the case of Truax v. Raich, 239 U.S. 33 (1915), in which an Austrian citizen had challenged an Arizona statute which required private employers of 5 more persons to employ at least 80% United States citizens. The Supreme Court struck the statute down on Equal Protection grounds. Here is the bit about legitimate interests of the state:
        It must also be said that reasonable classification implies action consistent with the legitimate interests of the state, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration--to admit or exclude aliens--is vested solely in the Federal government.
      In this case, legitimate is used in a familiar sense, the sense of a legitimate sphere of authority. Legitimate interests concern the state and its territory. Illegitimate interests aim at the sphere of federal authority or the territory of another state or nation.
      Holmes Weighs In Lucky for us, Justice Holmes had something interesting and extreme to say about "legitimate state interests." Holmes wrote the Opinion of the Court in Fidelity & Deposit Co. of Maryland v. Tafoya, 270 U.S. 426 (1926), involving a New Mexico statute that prohibited the payment of fees to agents who were not citizens of New Mexico for insurance policies covering risks in the State of New Mexico. Holmes’s opinion is particularly instructive. He begins with the premise that states do not need to articulate any purpose at all to justify their exercise of power:
        we assume in favor of the defendants that the State has the power and constitutional right arbitrarily to exclude the plaintiff without other reason than that such is its will.
      But this is not the end of the matter—although a state my legislate for any reason or no reason at all with respect to matters within its sphere of authority, the state may not legislate for a forbidden reason:
        But it has been held a great many times that the most absolute seeming rights are qualified, and in some circumstances become wrong. One of the most frequently recurring instances is when the so-called right is used as part of a scheme to accomplish a forbidden result. . . . Thus the right to exclude a foreign corporation cannot be used to prevent it from resorting to a federal Court or to tax it upon property that by established principles the State has no power to tax, and other cases in the same volume and later that have followed it; or to interfere with interstate commerce. . . . A State cannot regulate the conduct of a foreign railroad corporation in another jurisdiction, even though the company has tracks and does business in the State making the attempt.
      For Holmes, the concept of a legitimate state interest is entirely negative. Any interest at all is legitimate, so long as the interest does not tread on the forbidden ground of federal authority or the the authority of a sister state or nation.
      Summary of the Pre-New Deal Caselaw There is at least one additional pre-New Deal case, New York v. Latrobe, 279 U.S. 421 (1929), but all these share the same pattern of reasoning. Legitimate state interests of a state are those connected with the state’s sphere of authority or power; illegitimate interests are those which reach outside that sphere and interfere with the authority of sister states or of the national government.
      New Deal Era Cases This pattern of reasoning continued into the New Deal era. Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532 (1935) upheld the legitimacy of California’s interest in applying its workers’ compensation statute to California seamen who fished in Alaskan waters on voyages originating and terminating in California, even after 1937, see Eichholz v. Public Service Commission, 306 U.S. 622 (1939). (This isn’t a law review article, so I will omit several citations at this point.) But a slightly different use of the idea of legitimate state interest occurs in Justice Murray’s dissenting opinion in Prince v. Massachusetts, 321 U.S. 158 (1944), in which the majority upheld application of a child labor statute to a Jehovah’s Witness distributing religious literature. His language, which uses the idea of a legitimate state interest, approaches the contemporary idea of strict scrutiny:
        Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger.
      Thus, through the New Deal era, the notion of legitimate interests was a process notion. An interest was legitimate if it related to the state’s sphere of authority. An end was illegitimate if outside this sphere, infringing on the authority of the national government, a sister state, or the government of a foreign nation.
      The Modern Era In the modern era, we associate the phrase "legitimate state interest" with judicial scrutiny of the means and ends. The most deferential level of scrutiny, rational basis scrutiny, requires only a "legitimate" (not important or compelling) state interest. One very early use of the full phrase "legitimate state interest" in the modern sense occurs in Justice Harlan's dissenting opinion NAACP v. Button, a first amendment case, in in which the Harlan stated:
        But as we move away from speech alone and into the sphere of conduct--even conduct associated with speech or resulting from it--the area of legitimate governmental interest expands. A regulation not directly suppressing speech or peaceable assembly, but having some impact on the form or manner of their exercise will be sustained if the regulation has a reasonable relationship to a proper governmental objective and does not unduly interfere with such individual rights.
      And it was also Justice Harlan who gave the first articulation of the emerging notion of tiers of scrutiny, again in a dissent--this time in Shapiro v. Thompson:
        The 'compelling interest' doctrine, which today is articulated more explicitly than ever before, constitutes an increasingly significant exception to the longestablished rule that a statute does not deny equal protection if it is rationally related to a legitimate governmental objective. The 'compelling interest' doctrine has two branches. The branch which requires that classifications based upon 'suspect' criteria be supported by a compelling interest apparently had its genesis in cases involving racial classifications, which have, at least since Korematsu v. United States been regarded as inherently 'suspect.' * * * The second branch of the 'compelling interest' principle is even more troublesome. For it has been held that a statutory classification is subject to the 'compelling interest' test if the result of the classification may be to affect a 'fundamental right,' regardless of the basis of the classification. This rule was foreshadowed in Skinner v. Oklahoma . . ., in which an Oklahoma statute providing for compulsory sterilization of 'habitual criminals' was held subject to 'strict scrutiny' mainly because it affected 'one of the basic civil rights.' After a long hiatus, the principle re-emerged in Reynolds v. Sims, . . . in which state apportionment statutes were subjected to an unusually stringent test because 'any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.'
      Harlan's dissent articulated a framework that has been enormously influential. The crude picture is that there are three levels of scrutiny, strict, intermediate, and rational basis, with three corresponding levels of government interest required to survive scrutiny, compelloing, important, and legitimate. When I was a law student, I saw these three interests on a continuum of weight. I thought, a compelling interest must be very weighty, whereas a legitimate interest, can be much less weighty--the constitutional equivalent of a peppercorn.
    And this bring us back to Lawrence.
    Morality and Legitimacy With this every so compressed and shallow history out of the way, let's get back to the question at hand: What is the relationship between morality and the concept of a "legitimate state interest"?
      The Puzzle As we have seen, the category of legitimate interests historically has been about spheres of authority. A legitimate state interest was a purpose that related to the state's territory and people but did not trample on federal authority. The contemporary notion (at least as understood by commentators) was about weight with "legitimate" contrasted to "important" and "compelling." But the debate between Kennedy and Scalia in Lawrence is about moral interests versus liberty interests. Kennedy thinks "moral" interests are not "legitimate," whereas Scalia thinks they are. Painting with a broad brush and recognizing that the Lawrence Opinion is shallow and ambiguous, let’s try on a working hypothesis. Let’s suppose that the Court has adopted something like the following view:
        Government has a legitimate interest in protecting the liberty of citizens, and in furtherance of that interest, the government may prohibit individual A from harming individual B. But government does not have a legitimate interest in promoting morality or prohibiting immorality. Moral choices should be made by autonomous individuals, each of whom acts within a sphere of liberty which government has a duty to protect.
      John Stuart Mill held something like this view, although Mill’s view avoids a serious problem in the formulation I have given. That problem is this: liberty is a moral concept, and the preservation of liberty is a moral end. Why? Because our ordinary, everyday sense of the moral does not exclude harm to others from the realm of moral ends. This point is obvious. If anything is immoral, it is causing grave harms to innocent persons. Hence, the government interest in preventing A from harming B is a moral interest. And hence, if moral interests are illegitimate, then government may not prohibit murder, battery, or theft. But the principle of charity in interpretation suggests that we should avoid interpreting the claim the moral ends are not legitimate as leading to such absurd consequences? How can we unlock the puzzle? A good place to begin is with a more serious look at the opinions authored by Justice Kennedy and Justice Scalia in Lawrence.
      Kennedy on Morality and Liberty In his Opinion for the Court, Justice Kennedy does not explicitly argue that “morality” is not a legitimate state interest, but he does come close, as in the following passage:
        [F]or centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).
      Kennedy also quotes from Justice Stevens dissenting opinion in Bowers v. Hardwick, which expresses a very similar idea.
      Scalia on Morality as a Legitimate State Interest In Lawrence, Justice Scalia argues that “morality” is a legitimate state interest. The first instance of this argument is in the parenthetical of his citation to an 11th Circuit case:
        Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny”)
      And her is another piece of evidence:
        The Court embraces instead JUSTICE STEVENS’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
      The “above-mentioned laws” are “criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” So Justice Scalia is arguing that “morality” is a legitimate state interest.
      What Does the Supreme Court Mean by Morality Now that we have some additional data, let’s try to formulate a coherent interpretation of the claim that government lacks a legitimate interest in promoting moral ends or prohibiting immoral conduct. Let’s proceed by setting out a series of candidates for a suitably narrow sense of morality that fits the discourse in Lawrence but avoids the absurd consequence that government may only act amorally or immorally. Let’s begin with the notion of harm to others versus harm to self:
        Possibility One: Harm to Others versus Harm to Self One possibility is that Justice Kennedy and Justice Scalia are debating over the distinction between harm to others versus harm to self. On this interpretation, government may properly act so as to prevent A from harming B, but may not act so as to prevent A from harming A. Once again, we are close to John Stuart Mill’s liberty principle:
          That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.
        We are all familiar with the implications of this view of “legitimate state interests”—which is a version of constitutional libertarianism. And this first possibility has some real merits. First, it explains the result in Lawrence and it gives a coherent explanation of the disagreement between Justice Kennedy and Justice Scalia, painting Kennedy as a constitutional libertarian who came “out of the closet” and Scalia as a constitutional statist. Second, it also coheres with the very strong and widely-shared conviction that government does have the power to prevent A from harming B. Third, it reflects a coherent political philosophy and constitutional theory. (The leading contemporary expositor of constitutional libertarianism is Randy Barnett, and Possibility One reflects a constitutional theory that is a reasonable approximation of the much more sophisticated view he presents in his important forthcoming book Restoring the Lost Constitution (Princeton University Press 2004) and in The Structure of Liberty (Oxford University Press 19xx). But Possibility One has radical implication--and undoubtedly you have already seen them coming. A libertarian constitution would prohibit legislation that aims to prevent harm to self. One immediate implication is that most anti-drug legislation would be in constitutional doubt, and surely the prohibition against growing marijuana for private consumption would be unconstitutional. Did Justice Kennedy intend to legalize pot when he suggested that the promotion of morality was not a legitimate state interest? I am no mind reader, but it does seem unlikely! Even if Possibility One is attractive as a matter of political or constitutional theory, we have prima facie reason to find it suspect as an account of what the decision in Lawrence was intended to mean.
        Possibility Two: Moral Harm to Self Recall Mill’s principle: “His own good, either physical or moral, is not a sufficient warrant [for government restrictions of individual liberty].” Suppose we limit this principle, by allowing that government may restrict liberty in order to prevent individuals from harming themselves physically but may not prevent individuals from harming themselves “morally.” But what does moral harm to self mean? Here are two interpretations:
          --The Theological Interpretation of Moral Harm to Self. One possibility is that one’s “own moral good” is theological. For example, if one believed that homosexual activity is contrary to God’s command and that disobedience of God’s commands endangers the immortal soul, then the state’s prohibition of homosexual activity might be justified on the basis of the state’s interest in preventing individuals from harming themselves theologically. I will have a bit more to say about theological interests in a bit. For now, let’s assume for the sake of argument that the state does not have a legitimate interest if the sole basis for the interest is a particular theological doctrine.
          --The Character Interpretation of Moral Harm to Self. But there is another interpretation of the notion of “moral harm to self.” Aristotle’s theory of the proper ends of government was that the government should act to promote virtue and prohibit vice. This theory should not be understood anachronistically. By virtue, Aristotle meant the human excellences (courage, temperance, justice, practical wisdom, and so forth). By vice, Aristotle meant those defects of character that interfere with flourishing human lives (cowardice, gluttony, graspingness, etc.). Aristotle’s complex moral and political theory defies easy summary, but a crucial point is that Aristotle believed that a flourishing human life could only be achieved through cultivation of the virtues. And what does this have to do with “legitimate state interests?” Perhaps Justice Kennedy meant that our constitution rules out an Aristotelian conception of the proper ends of government. The state can prohibit unjust acts (acts in which A acts unjustly with respect to B), but the state may not legislate either to prevent A from debasing his own character or to give A an incentive to improve his character. How does the character interpretation fare as an explanation of the opinions in Lawrence? The answer simply isn’t clear, because none of the opinions discuss character formation as the end of legislation. Both Kennedy and Scalia discuss “morality” and “immorality,” but neither says much about what these terms mean. A test case might be a statute that prohibits gambling by adults on the ground that legalized gambling can lead susceptible individuals to become “addicted” and seriously damage their ability to lead a flourishing human life.
        Possibility Three: Legitimate State Interests and Public Reason Consider yet a third possibility. We might borrow the category of "public reason" from John Rawls. Perhaps, legitimate state interests are those that rely on public reason and illegitimate state interests rely on nonpublic reasons. What is public reason? Here is a short summary:
          Rawls understands public reason as the common reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society"--the comprehensive moral and religious views that necessarily differ in a free and pluralistic society. Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.
        What does this have do with Kennedy and Scalia in Lawrence? Kennedy might be interpreted as arguing that nonpublic reasons are not legitimate state interests, and Scalia might be interpreted as arguing that particular moral and religious doctrines do supply appropriate purposes upon which government may act.
    O'Connor's View of Legitimate State Interests Before going further, we should take a brief detour. Yet another view of legitimate state interests is suggested by Justice O'Connor's opinion in Lawrence. She writes:
      Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." . . . We have consistently held, however, that some objectives, such as "a bare ... desire to harm a politically unpopular group," are not legitimate state interests. . . . When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.
    O'Connors view suggests that the political process confers legitimacy on most interests, but a bare desire to harm does not qualify as a legitimate interest. In the spirit of Carolene Products footnote 4, such a desire to harm might serve as evidence that the political process does not work adequately to protect the interests of the group in question, and hence that the mere operation of democratic process is not sufficient to confer legitimacy.
    Taking Stock So where are we now? I would like to suggest that a useful heuristic. Let's divide the Supreme Court's "legitimate state interest" jurisprudence into three periods:
      Period One: Legitimate Sphere of Authority. In the first period, from the turn of the century through the New Deal, a legitimate state interest was simply a purpose that related to the state's sphere of authority. Illegitimate interests were aimed outside that sphere, e.g. at federal issues or at the territory of another state or nation.
      Period Two: Legitimate As Minimally Sufficient. In the second period, roughly beginning in the late 50s or early 60s with the emergence of two-tiered and then three-tiered levels of scrutiny, a legitimate interest was simply an interest with the kind of minimally sufficient weight that was suffient to withstand rational basis scrutiny.
      Period Three: Emergence of a New Concept of Legitimacy. And that brings us to the present. What I would like to suggest is that cases like Roemer and Lawrence point towards the emergence of a new standard for legitimacy. These contemporary cases clearly reject Justice Holmes's understanding of legitimacy: it is no longer the case that any reason at all counts as a legitimate interest so long as the reason does not aim at invasion of the authority of the fedreal government, a sister state, or foreign nation. What is not so clear is what the positive content of the new concept of legitimacy is. Kennedy says that at least certain sorts of "moral interests" are not legitimate. O'Connor says that animus is not legitimate. Can we give a general theory of the emerging new concept of "legitimacy"?
    Possibilities So where might the Court go from here? Here are some possibilities:
      --The Eclectic Option. The Court might not try to systemitize and generalize the new concept of legitimacy. We might end up with a laundry list of forbidden interests without a unifying general account. Of course, academics and lawyers will try to find a pattern, even if the Court provides few clues.
      --The Libertarian Option. The Court might take Justice Kennedy's discussion of liberty, morality, and harm seriously. If so, then the Court would be moving in the direction of constitutional libertarianism.
      --The Public Reason Option. The Court might move in a Rawlsian direction, distinguishing between those interests that can be derived from public reason and those which rest on sectarian doctrines or particular moral theories.
    It is too early to tell in which direction the Court might move. And of course, this is the Supreme Court. Given that Court cares little for stare decisis, a change of personnel could easily result in some new direction entirely.
    Jettisoning Legitimacy And all of this brings me to my final question. Has the concept of a "legitimate state interest" outlived its usefulness? We are now in a position to take a very broad view of the notion of legitimacy that the Supreme Court has employed for about 100 years. We now can see a familiar pattern. Language that was initially used for one purpose (sphere of authority) is adapted to a quite different purpose (minimally sufficient weight) and then morphs into something else entirely. It is no longer clear that the Supreme Court has any coherent view of what constitutes a "legitimate state interest." And it is far from clear that the emerging new concept of a "legitimate state interest" will have any relationship to the concept of legitimacy. In all likelihood, this conceptual incoherence will not bother the Supreme Court. After all, the Supreme Court, like Humpty Dumpty, can say "When we use 'legitimate state interest,' it means just what we choose it to mean--neither more nor less." But there is another possibility worthy of consideration. The Supreme Court might jettison the phrase "legitimate state interest" altogether. The Court might try to craft language that captures its meaning with clarity and precision. The Court might take seriously its obligation to speak to the people and the legal profession in language that is crafted for comprehension.
    Conclusion "Legitimate state interest" is a phrase worthy of the oracle at Delphi. Such obscure utterance may be useful to the Court. Delphic pronouncements may facilitate compromise among the Justices. Twisting borrowed phrases may cover innovation with a thin vaneer of precedent. And because the Justices have the last word and life tenure, they face a great temptation to focus on the needs of the Court. That is only human. But the power of the last word implies a duty to facilitate accountability. Words that are final should be clear. Words that are binding should be comprehensible. It is perhaps ironic that the Supreme Court, an institution that must always be mindful of its own legitimacy, should find itself in danger of so torturing the word "legitimate," that the constitutional concept of "legitimate state interest" is in danger of losing its meaning.

Monday, July 07, 2003
New Papers on the Net Here is the roundup:
    Hanoch Dagan (Tel Aviv University) and Carolyn Frantz (University of Chicago) upload Properties of Marriage, forthcoming in the Columbia Law Review. From the abstract:
      This paper articulates and examines one ideal for the institution of marriage - marriage as an egalitarian liberal community. Under this vision, the communal values of marriage, where spouses share with each other without reference to individual desert, are combined with a concern for non-subordination and a protection of individual autonomy, notably free exit. We argue that, contrary to the common assumption that these goals are incompatible, they can be accommodated to a remarkable degree. We then trace the implications for this vision of marriage for marital property law. We use it to defend the equal division rule of existing marital assets, as well as a broad scope for marital property, including notably both the spouses' increased (and decreased) earning capacity during the pendency of their marriage. We also discuss alimony, endorsing generally the current practice of rehabilitative alimony, and property governance, arguing for community property rules for spouses during marriage.
    Lucian Bebchuk (Harvard) and Jesse Fried (U.C. Berkeley) post Executive Compensation as an Agency Problem. Here is the abstract:
      This paper provides an overview of the main theoretical elements and empirical underpinnings of a 'managerial power' approach to executive compensation. Under this approach, the design of executive compensation is viewed not only as an instrument for addressing the agency problem between managers and shareholders but also as part of the agency problem itself. Boards of publicly traded companies with dispersed ownership, we argue, cannot be expected to bargain at arm's length with managers. As a result, managers wield substantial influence over their own pay arrangements, and they have an interest in reducing the saliency of the amount of their pay and the extent to which that pay is de-coupled from managers' performance. We show that the managerial power approach can explain many features of the executive compensation landscape, including ones that many researchers have long viewed as puzzling. Among other things, we discuss option plan design, stealth compensation, executive loans, payments to departing executives, retirement benefits, the use of compensation consultants, and the observed relationship between CEO power and pay. We also explain how managerial influence might lead to substantially inefficient arrangements that produce weak or even perverse incentives.
    Douglas Irwin (Dartmouth, Economics) posts Causing Problems? The WTO Review of Causation and Injury Attribution in U.S. Section 201 Cases. From the abstract:
      U.S. safeguard actions have run into problems with the WTO's Panel and Appellate Body reviews for failing to ensure that injury caused by non-import factors is not attributed to imports. This paper reviews the subtle legal and economic differences between U.S. trade law (Section 201) and the WTO's Agreement on Safeguards on the non-attribution issue. The paper then resurrects the Kelly (1988) method of attributing injury to various factors as a potential method by which the ITC can ensure that future decisions conform with the Safeguards Agreement. The method is shown to yield results that are consistent with recent ITC safeguard decisions.
    William Davey (University of Illinois) offers The WTO Dispute Settlement Mechanism. Here is the abstract:
      This working draft first considers issues relating to the philosophy of dispute settlement - what approach works best: one emphasizing settlement of disputes through negotiations or one emphasizing more judicial-like means. Next, it reviews the basis for dispute settlement under the General Agreement on Tariffs and Trade (GATT) and evaluates the successes and shortcomings of the GATT dispute settlement system. The core of the article describes in detail the World Trade Organization (WTO) rules on dispute settlement. In concluding sections, it reviews the operation of the WTO dispute settlement system to date and discusses several proposed reforms, such as the establishment of a permanent panel body and various ways to improve the effectiveness of remedies in cases of noncompliance with WTO decisions.

Volokh on Buchanan Read this very good post.

Platonic Guardians of the World, Unite! Another interesting piece from NRO, this time from Stuart Taylor Jr., on the leftward drift of the Supreme Court. Here is a taste:
    To me -- as one who joins liberals in despising discrimination against gays, and conservatives in despising discrimination against whites and Asians -- it's better to have justices taking their cues from the Establishment than from, say, the Rev. Jerry Falwell or the Rev. Al Sharpton. But it would be nice if they were a bit less confident that they know better than anyone else how to run the country. "It would be most irksome," as Judge Learned Hand wrote in 1958, "to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

Lawrence and the Role of Morality in Legislation Thanks to Stuart Buck (The Buck Stops Here) for a pointer to this piece by Jonathan F. Cohn in NRO:
    Nonetheless, the dissent [by Justice Scalia in Lawrence v. Texas is ultimately incorrect in its conclusion that the Court's decision means the end of morals legislation. Paradoxically enough, the decision confirms that morality is a viable basis for law. The Court's decision was all about morality, the justices' morality. There is no other way to explain the result. As noted above, the Constitution's text and this country's history and traditions do not recognize a right to homosexual sodomy. And Supreme Court precedent is equally unsupportive, as less than 20 years ago the Court reached the opposite conclusion to the one it formed last week. Finding no basis for its decision in the Constitution, history, or precedent, the Court majority had no choice but to rely on its own collective moral judgment.
I hope to post something about the relationship between legitimacy and morality in the next few days.

Sovereignty & Citations to Courts of Other Nations In an uncommonly silly piece, on NRO online, Quin Hilyer argues that Justice Kennedy's opinion in Lawrence undermines U.S. Sovereignty. Here is the way he starts the argument:
    In the course of overturning existing Supreme Court precedent, Justice Kennedy also, at least slightly, undermined the very sovereignty of this nation and its Constitution.
    The highly objectionable reasoning came in the course of a bizarre, long-winded attempt to argue that there really isn't a centuries-old tradition of outlawing homosexual sodomy. Kennedy's point was to refute an assertion by then-Chief Justice Warren Burger in the 1986 Bowers v. Hardwick case that rejected a "right" to private sodomy. Burger had written, seemingly unremarkably: "Decisions of individuals relating to homosexuality have been subject to state intervention throughout the history of Western civilization."
And he continues
    But on a deeper level, the citation borders on the subversive. If the authority of extra-national courts is held to be even partially dispositive in the United States (especially without a formal treaty yielding a specific measure of American sovereignty on a particular issue), then the same foreign authority cited in supposed defense of liberty could be cited to take an American individual's liberty away.
Hilyer is an editorial writer for the Mobile Register, so perhaps is unaware of the thousands of times (countless, really) that U.S. Courts have cited the extranational courts on a variety of mundane issues, from commercial law to torts. Perhaps Hilyer does not understand the distinction between persuasive and binding authority. If the U.S. Supreme Court had rested the Lawrence holding on customary international law, that would have been radical but it didn't, and it didn't even come close.
Update: Jack Balkin has a nuanced and well-developed critique of Hilyer here.

Twenty Questions Howard Bashman's wonderful 20 Questions feature is up today. His subject is judge Ruggerio Aldisert. Read the whole interveiw, but I was especially taken with Question 15:
    Bashman: You have written that ninety percent of all appeals tend to be relatively straightforward to decide. How should judges go about deciding the remaining ten percent, and what role, if any, should their personal or political preferences play in those close calls? Also, is there an objective way to identify judicial activism, or is it all in the eyes of the beholder? Aldisert: I have said that 90 percent of all appeals tend to be relatively straightforward to decide. They come within Judge Cardozo's first two categories: (1) the law is clear and the application of the facts equally plain; or (2) where the law is clear and the sole question is its application to the facts found by the factfinder. I turn to Roscoe Pound for assistance in deciding the remaining ten percent -- where the law is not clear. In the first category of this inquiry, we must find the law by using inductive generalization from a host of decided cases to form a guiding principle or to make a choice between competing principles. Involved in the former is inductive reasoning. The latter involves the exercise of a value judgment which should be supported by reasons why. In the second category of cases where the law is not clear, the legal precept may be identified, but the problem is interpreting -- the fertile field of statutory construction or interpreting clauses of the Constitution. Max Weber, the important European social theorist, suggested that the term "value judgment" refers to "practical evaluation of a phenomenon which is capable of being . . . worthy of either condemnation or approval." He distinguished between "logically determinable or empirically observable facts" and "the value judgments which are derived from practical standards, ethical standards or . . . views." I think we draw the same distinction here. Each judge has his or her own preferences among a sea of legal standards, any one in principle respectable. And we make our selections. Sometimes we select extra legal standards, making a choice from ethical, moral, social, political or economical concepts offered by diverse teachers or philosophers. Because a value judgment figures in the choice of competing precepts interpretations and application how can a judge arrive at this decision without being considered arbitrary? Roger J. Traynor reminded us that "one entrusted with decision, traditionally above base prejudices, must also rise above the vanity of stubborn pre-conceptions, sometimes euphemistically called the courage of one's convictions. He knows well enough that he must severely discount his own predilections of however high grade he regards them, which is to say he must bring to his intellectual labors a cleansing doubt of his omniscience, indeed of his perception." In the law, as well as in life itself, judging is the act of selecting and weighing facts and suggestions as they present themselves, as well as deciding whether the alleged facts are really facts and whether an idea suggested is a sound idea or merely a fancy. What we should expect from our judges, at a minimum, is a willingness to consider alternative solutions to a problem. A "result-oriented" judge, in the sense condemned, is one who consistently resists considering arguments contrary to initial impression or pre-existing inclination. We cannot expect judicial minds to be untainted by their first impression of a case. What we can expect is that the initial impression will be fluid enough to yield to later impressions. We can also expect that judges will be intellectually interested in an outcome based on sound reasoning. What we can demand is that judge employ logically sound techniques of intellectual inquiry and reflection when making value judgments, and then explain both their premises and their conclusions to us in clear language evidencing impeccable logical form.

Sunday, July 06, 2003
Justice Jackson on Independence Check out this speech, at Is That Legal.

Saturday, July 05, 2003
July 4th Weekend & the Oldies But Goodies Department Here is a post of which I am particularly fond, from a few months ago. I will be posting very lightly over the weekend. Enjoy:
    Feasibility One of the most important, but least theorized, issues in debates over law and public policy concerns the question: what is the set of feasible choice? That is, which choices are realistic and which are utopian? How can we tackle this issue? Here are some ideas garned from recent writing by legal theorists:
      --Second Best Analysis. Contemporary legal theory is most familiar with the problem of feasible choices from the literature on the second-best, starting, of course, with R.G. Lipsey & Kelvin Lancaster’s famous article, The General Theory of the Second Best, 24 Review of Economic Studies 11 (1956). But this literature has little to say about the crucial question, what counts as a constrained variable? Why are some choices outside the feasible set?
      --Slippery Slopes. Eugene Volokh's superb article, The Mechanisms of the Slippery Slope (long version in HTML or PDF) provides another angle of attack on the feasible choice set question. Volokh is interested in how a choice at one time (t1) can constrain the feasible choice set at another time (t2). Eugene's article is very helpful, because it contains a rich, analytically-sharp analysis of the various mechanisms by which choices are constrained. Although this analysis is set in the context of slippery slopes, it actually has much wider application and would provide a helpful starting point for a general theory of feasibility. (BTW, there is a short version of Eugene's article here, but read the long version.)
      --Possible Worlds Semantics. Yet another tool for analyzing feasiblity suggested by one of all-around super genius Gottfried Leibniz's best ideas--the notion of a possible world. Here is the one-minute philosopher's version:
        Possible world semantics is a precise and illuminating way of talking about modal concepts, such as possibility and necessity. “Possible world” is the name philosophers give to a possible state of affairs. Frequently, when legal theorists speak of feasiblity or possibility, their statements are ambiguous. Possible worlds semantics provides a way of translating ambiguous talk about possibility into much more precise expressions. Here is how it works. We translate the modal assertion, “H is possible,” into the statement “H is true in some possible world.” In other words, if I say, “It is possible that Griffin is a Yankee’s fan,” that translates into “Griffin is a Yankee’s fan in some possible world.” Possible worlds semantics then allows us to distinguish the various senses in which we say that “H is possible,” or “J could have happened.” Let’s take the broadest notion of possibility, logical possibility. “J is logically possible” translates to “J is true in at least one possible world in which there are no logical contradictions.” Logicians and philosophers use the word “accessibility” to define sets of possible worlds with respect to various senses of possibility. Thus, the possible worlds in which there are no logical contradictions are logically accessible. The possible worlds that obey the laws of science are nomologically accessible. The possible worlds that are consistent with everything that we know are epistemologically accessible. The possible worlds that share the history of the world up to the present moment are historically accessible. The possible world that we now inhabit is the actual world. The worlds that are historically accessible from the actual world are the possible worlds that share the history of the actual world up until now.
      By precisely specifying what accessibility relationships are relevant to the determination whether a given choice is in the feasible set, we can make ambiguous talk about possibility quite precise.
      --Feasibility and Framing. The way an issue is framed frequently is relevant to what constitutes the feasible choice set. The most compelling example of this phenomenon is time frame. Here is one version. Some choices are outside the feasibility set in the short run, but inside the set in the long run. For example, in my recent discussion of political ideology in judicial selection, I argued that neoformalism was outside the short-run set of feasible choices, but inside the set in the long rune.
    Why is all of this important? Applied legal theory is almost always constrained by considerations of feasibility. We always have an eye on the world of the second best, even when we are engaged in first-best analysis. But without clear analysis of feasibility, it is easy to have a debate without clash, a conversation without engagement. Precise specification of the constraints on the set of feasible choices should be mandatory in any second-best analysis of legal policy! Ok, Ok, I'll get off my soapbox.

Lipkin on the Holding in Lawrence Robert J. Lipkin writes re my post on the holding in Lawrence (and Balkin's prior post):
    One relatively minor point. I wonder whether Justice Kennedy isn't trying implicitly or explicitly to replace "privacy" with "liberty." Although in citing the relevant caselaw, Justice Kennedy, of course, needs to refer to "privacy" (since the cases emphasize this term), when he writes in his own voice, interestingly, he seems to replace "privacy" with "liberty." I'd have to reread the case to fully document this claim, but I wonder what you think. One advantage of ditching "privacy" for "liberty" is that it obviates the necessity for proponents of the right in question to attempt to rebut the objection that "privacy" isn't in the Constitution. "Privacy" may not be in the Constitution but "liberty" certainly is. Indeed, replacing the 'substantive due process right to privacy' with "liberty" might have both conceptual and practical advantages. Of course, a proponent of this switch must respond to the charge of substantive due process to which proponents of all such rights must respond.
Yes, except for the "minor" part. If you read Kennedy's opinion for all its worth, and assume that he really means what he said about "liberty," that isn't minor at all. It's too early to tell, but if Kennedy's opinion implies that constitutional liberty has replace privacy as the relevant category, there could be very major implications.

New Papers on the Net Here is the roundup:
    H. Mocan (Colorado at Denver, Economics) and Erdal Tekin (Georgia State, Economics) post Guns, Drugs and Juvenile Crime: Evidence from a Panel of Siblings and Twins. From the abstract:
      Using a nationally-representative panel data set of U.S. high school students (AddHealth data) that contains a relatively large sample of siblings and twins, the paper investigates the impacts of gun availability at home and individual drug use on robbery, burglary, theft and damaging property for juveniles. Using a variety of fixed-effects models that exploit variations over time, the results show that gun availability at home increases the propensity to committing robbery, burglary and theft by about two percentage points for juveniles but has no impact on damaging property. It is unlikely that gun availability is merely a measure of the unobserved home environment because gun availability does not influence other risky or bad behaviors of juveniles. The results show that having access to guns increases the probability of being cut or stabbed by someone and of someone pulling a knife or gun on the juvenile. Estimates obtained from models that exploit variations over time and between siblings and twins indicate that the median impact of cocaine use on the propensity to commit various types of crimes is 23 percentage points. The impact of using inhalants or other drugs is an increase in the propensity to commit crime by 14 and 18 percentage points, respectively.
    Brian Weatherson (Brown, Philosophy) posts My Favourite Puzzle. From the abstract:
      We can write fictions in which the historical facts are different, in which the laws of nature are different, and even some say in which the laws of mathematics and logic are different. But attempts to write fictions in which the laws of morality are different seem to always end in failure. Why might this be? The puzzle is more interesting than any solution I might have to offer, but I suspect it connects up with some fairly interesting facts about how we imagine complex states of affairs.

Friday, July 04, 2003
The Holding in Lawrence I agree with Jack Balkin's analysis of the holding in Lawrence. Here is what Jack said:
    Lawrence extends the fundamental right of privacy to same-sex intimate relationships. It does not strike down Texas' sodomy law on the ground that it fails the test of rationality, as Justice Scalia seems to assume. Nor does it hold that appeals to morality cannot be a legitimate government interest under the rational basis test for ordinary social and economic legislation. Rather, it holds only that when a fundamental right or interest is involved moral disapproval is not a sufficient interest to overcome the fundamental right.
This is absolutely right--assuming, of course, that the "fundamental rights" category really is doing any work. The fact that moral disapproval is not even a legitimate interest does not change the fact that most of Kennedy's opinion is devoted to establishing that liberty encompasses the sexual relationships between consenting adults in private. If Lawrence really were a rational basis opinion, none of the discussion of Griswold, Roe, Casey, and the rest would have being doing any substantive work at all. The rational basis interpretation of Kennedy's opinion in Lawrence takes one sentence as the whole basis for the holding, and turns the rest of the reasoning (including every single citation to prior caselaw) into dicta. I know that many thoughtful scholars are reading Lawrence this way, but they have missed a whole forest by focusing on a single tree.
Update: Check out Law, Politics and Press for more on Lawrence.

Balkin on Rehnquist Surf here for Jack Balkin's reflections on the young Rehnquist's views on majoritarianism and the Court.

Marston on Hamilton Read Brett Marston's very nice commentary on Marci Hamilton's defense of the Rehnquist Court. Here is a taste:
    [B]oth Hamilton and Solum ignore what is probably the Rehnquist Court's most important legacy at this point, though: an aggressive adherence to judicial supremacy. As Sanford Levinson put it in the Village Voice recently: the "common motif" in Rehnquist Court decisions has been "a highly self-confident group of judges unafraid to exercise their power," sometimes in a liberal direction, more often in a conservative one.
For my take on Hamilton, scroll down or click here.

Oman on Coke I highly recommend Nate Oman's post on Lawrence and the role of tradition. Here is a taste:
    Coke argued that historical practice was entitled to legal force because customs and practices that universally persisted over long periods of time were consented to by the people in a way that conferred upon them unique legitimacy. Coke and the great historical jurists of the sixteenth century who followed him – Selden and Hale – are in some sense transitional figures between the legal ideology of the late middle ages and the birth of modern liberalism in the 18th century. Thus one might view their theory of consent as a kind of half baked groping toward true democracy, a second best theory of consent adopted in the absence of democratic institutions like universal suffrage or elected legislatures in the modern sense. However, I think that there is a deeper point to Coke's theory. One can actually argue that the consent created by the institutions of democracy – voting, legislation, etc. – is actually a thin and episodic kind of consent. It depends on the vagaries of shifting coalitions, the manipulation of decision procedures, and the swirls of momentary public opinion. In contrast, a Cokian consent rests on a much thicker notion of ratification, one that can only exist when practices prove themselves over long periods of time and across many subcommunities. Rather than conceptualizing consent in formalistic terms, the Cokian position looks to thick reality of social practice.

Woeful Ignorance Christianity Today has a piece on the Supreme Court's "rejection" of "natural law" in Lawrence. Here is a taste:
    On the face of it, the U.S. Supreme Court's ruling that the government should stay out of people's bedrooms seems reasonable enough. Had law evolved "ex nihilo"—from nothing—then indeed why not strike down Texas' ban on private consensual sex between adults of the same gender? But until now there seemed to have been a consensus among societies with monotheistic traditions that all civil law was rooted in natural law, which is written upon created order and, as the apostle Paul put it, "graven on the heart of man." Natural law is God's witness even to societies, which do not acknowledge him. Since time immemorial most healthy cultures have shared a belief that it is wrong to murder, steal, lie, commit adultery—and commit certain sexual acts considered deviate.
It is a sad commentary on the gap in understanding between religious and legal communities that a respected journalist would be so ill-informed about the law as to believe that until last week, American jurisprudence was grounded in the natural law tradition. Not to mention, the grave misunderstanding of what that tradition is!

Star Power Great piece in the Boston Globe on celebrity academics. Here is a taste:
    The hunt for stars has become serious business in higher education. More second-tier private universities and top public campuses are getting into the game, hoping for a big score that will impress donors and alumni and generate media interest in their school (especially from the US News & World Report's college rankers, the most influential shapers of college reputations for most Americans). Top universities like Harvard, Princeton, and Columbia are also recruiting aggressively, with the huge financial advantage of their endowment gains from the go-go '90s. For even the best schools, stars are increasingly central to their financial fortunes and high ambitions. Columbia, for instance, recently poached Harvard economist Jeffrey Sachs to run its $80 million Earth Institute and capitalize on his role as special adviser to UN Secretary General Kofi Annan, in the hopes of building a lucrative, prestige niche in global sustainable development.

Volokh on Victim's Rights Eugene Volokh's MSNBC piece opposing the Victims' Rights Amendment can be found here.

New Papers on the Net Here is today's roundup:
    Kenneth Winston (Harvard, Kennedy School) posts On the Ethics of Exporting Ethics: The Right to Silence in Japan and the U.S.. From the abstract:
      At the end of WWII, U.S. occupation forces transformed Japan from an autocratic polity into a constitutional democracy. Part of the plan called for transplanting the constitutional right to silence for criminal defendants, to replace the traditional Japanese emphasis on confessions. The failure of this effort is the starting point in this essay for reflecting on the possibilities of ethical deliberation across cultures. It is argued that U.S. legal experts failed to appreciate what is compelling in the Japanese view that citizens have a moral duty to be accountable to one another for their conduct. To facilitate this appreciation, the essay assesses standard justifications of the right to silence in the U.S. and discusses the duty of confession in a context more accessible to U.S. scholars - college tribunals - which is a resource for reflecting on Japanese practice. Connecting these different contexts is the claim that, in determining whether a right (such as the right to silence) should be recognized or not, the crucial determinant is the nature of valued relationships. Rights are not freestanding attachments of individuals but constituent components of associational ideals.
    Cary Coglianese (Harvard, Kennedy School) uploads The Internet and Public Participation in Rulemaking. Here is the abstract:
      Recent advances in information technology make possible new avenues for the public to participate in the development of government regulations. This paper illustrates the potential of the Internet by reference to several innovations in regulatory practice that could increase the transparency of regulatory policymaking and facilitate greater involvement by the public in this process. However, even though transparency and public participation may be desirable characteristics of policymaking procedures, the way government uses the Internet to transform the rulemaking process should be analyzed as carefully as any other policy proposal. In considering whether to modify the rulemaking process to take advantage of the Internet, decisionmakers should specify clear goals to be sought by any such modifications and carefully consider both the positive and negative effects such changes might bring. The novelty of the Internet and its potential application to the rulemaking process merits neither optimism or skepticism, but rather simply good analysis and empirical assessment.

Thursday, July 03, 2003
Diversity on the Supreme Court Check out this editorial in the Washington Post. Here is an excerpt:
    The advantage of the ideological diversity the court has demonstrated is that its majorities can draw from a variety of intellectual currents that offer useful strategies for interpreting the Constitution. This court still has its pathologies: a certain grandiosity, and an imperial attitude toward the other branches of government. But with the court's current composition -- which now appears likely to remain unchanged for at least another year -- a majority for any kind of radical conservatism seems a fading risk. This is a generally conservative court, but its tendencies do not translate neatly or automatically into any particular favored outcome of political conservatives.
But what does the Post mean by "useful strategies for interpreting the Constitution"? "Useful" to whom or by which criteria? OK, it is only an editorial, but surely the Washington Post's editorial staff can do better than this.

Is the Supreme Court Politicized?
    Perfect Legitimacy Is today's Supreme Court politicized? Marci Hamilton argues that the answer is no in her findlaw column today. Here is how she begins:
      For the last several years, there has been a deafening drumbeat in the media with respect to the Supreme Court. Liberal commentators have claimed, over and over again, that the Court is anti-civil rights, and improperly politicized - and therefore illegitimate. But saying these things simply does not make them so. Nothing could have furnished better proof of the falsity of these claims, than the opinions the Court recently issued, at the end of its 2002-03 Term. Liberals' jaws dropped at the results: A strongly pro-gay rights opinion, going even further than it had to? A middle ground on affirmative action? An opinion upholding the federal Family Medical Leave Act? Commentators seemed stunned. But they should not have been. These end-of-Term decisions make plain what has always been true: The Court is centrist, not on the far right. It is not hostile to civil rights claims. It does not consult the political winds. And for all these reasons, it is perfectly legitimate.
    Wow! "Perfectly legitimate." "Centrist." "Does not consult the political winds." What is Hamilton up to?
    Hamilton's Obvious Error Much of Hamilton's column is devoted to the enterprise of showing that the Supreme Court's decisions are not ideological in the sense that they are anti-civil rights or extremely pro-state's rights. Read Hamilton's column. She is on the money on these scores. But then she makes an obvious error. Hamilton equates "centrist" with "does not consult the political winds." Here is another brief passage:
      In sum, when its opinions are examined from a neutral perspective, rather than a politically driven agenda, it is plain that the current Court is centrist. It ought to go down in history that way - not as the arch-conservative Court it is wrongly caricatured as being.
    But of course, "centrist" is not a synonym for "apolitical." Rather, a centrist court is, by definition, a politicized court. Centrist politics are still politics. Indeed, it is only by "consult[ing] the political winds" that the Court can know where the political center is, and move there.
    Centrism and Legitimacy But let's put Hamilton's mistake aside. Perhaps, she still has an argument for her bottom line. Perhaps, a centrist court is "perfectly legitimate," precisely because it reflects the political center, and hence the will of the majority. But this is a very weird constitutional theory. The idea is that the Supreme Court should act as sort of superlegislature or "council or revision," correcting the political process, not because majorities (or coalitions of Madisonian factions) have trampled on constitutional norms (or even extraconstitutional individual rights), but because state legislatures and Congress are not themselves sufficiently majoritarian. The Supreme Court simply isn't designed for this job.
    The Rule of Law I would like to suggest that the Supreme Court court's legitimacy does not rest on its political centrism. The Supreme Court's legitimacy rests on its adherence to the law. The cardinal virtue of a judge is "justice," the disposition to decide cases in accord with the law. In the case of the Constitution, this means in accord with the text, original meaning, settled constitutional practice, and precedent. When the judges (or "justices") decide on the basis of their own policy preference or the preferences of the political center, they act contrary to justice. A centrist court is a politicized court.

Wednesday, July 02, 2003
Cornyn on "Advice and Consent" Here is the text of Senator Cornyn's letter to the Washington Post:
    Advice and Consent -- After the Fact Tuesday, July 1, 2003; Page A12 Arguing for a diminution of presidential power in selecting Supreme Court nominees, David S. Broder committed a serious error of omission in his June 25 op-ed column. Selectively excerpting Article II of the Constitution, Mr. Broder wrote that it is "the president 'by and with the advice and consent of the Senate,' " who appoints justices of the Supreme Court. He used this fragment (interestingly, a phrase about appointments, not nominations) to argue for presidential consultation with the Senate "prior to the selection" of a Supreme Court nominee. This echoed the recent arguments of some Senate Democrats that the Senate should have control over not just the confirmation but also the selection of judicial nominees. The constitutional provision that discusses nominations, though, begins with the phrase "[the president] shall nominate." Only then does it say, "and by and with the advice and consent of the Senate, shall appoint." Mr. Broder's omission involves just a few words, but they are critical. The role of the president is to nominate. The role of the Senate is to advise him on the merits of that selection. The Constitution wisely allocates power in this manner, because the Founders understood that the important power of nominating judges should be handled by one person, not by a group. Few things would politicize our judiciary more than to hand over control of the process for selecting Supreme Court nominees to individual members of the Senate. JOHN CORNYN U.S. Senator (R-Tex.)

Confirmation Wars Department: Fiscal Escalation Courtesy of Howard Bashman, the Washingpost Post has a story on the lobbying effort for confirmation of Supreme Court Justices. Here is a brief excerpt:
    Corporate lobbyists are pushing the Senate to confirm President Bush's judicial nominees at the same time the lobbyists' clients are arguing cases in courts where those nominees would serve. Ten of the 15 members and directors of the Committee for Justice, which was formed to garner political support for Bush's nominees, work for law firms representing corporations with lawsuits before federal judges. Among their corporate clients are Citigroup Inc., R.J. Reynolds Tobacco Co. and Microsoft Corp. Two other members have ties to companies that are defendants in federal court lawsuits.
Of course, any lawyers who take a stand on the confirmation process and its defects are likely to have clients!

New Papers on the Net Here are some new papers from hither and yon:
    Laura Langer (University of Arizona, Political Science), Jody McMullen (University of Arkansas, Political Science), Nicholas Ray (University of Arizona, Political Science) and Daniel Stratton (University of Arizona, Political Science) post Recruitment of Chief Justices on State Supreme Courts: A Choice between Institutional and Personal Goals, forthcoming in the Journal of Politics. From the abstract:
      We examine career patterns of 257 associate state supreme court justices and the conditions under which some of these justices were elevated to chief justice. We posit that recruitment of chief justice is used to advance judges' personal policy preferences in some instances, but in other states recruitment of this position is used to appease actors who can punish judges for objectionable decisions. We further hypothesize that chief justice control over opinion assignment shapes the recruitment process and the probability any given justice will become chief justice. Results show that the recruitment process leads associate justices to choose chief justices based on policy goals when this position is afforded the power to control opinion assignment. In these states, the median member of the court has the greatest probability of becoming chief justice. Alternatively, when the chief justice lacks opinion assignment control, institutional goals influence the decisions made by associate justices.
    Stephen Nicholson and Robert Howard (Georgia State, Political Science) post Framing Support for the Supreme Court in the Aftermath of Bush v. Gore, forthcoming in the Journal of Politics. From the abstract:
      Public support for political actors and institutions depends on the frames emphasized in elite debate, especially following a political controversy. In the aftermath of Bush v. Gore, the Supreme Court made itself the object of political controversy because it effectively ended the 2000 presidential election. Opponents of the decision framed the Supreme Court ruling as partisan and "stealing the election," while supporters framed it as a principled vote based on legal considerations. Using survey data, we examine how framing the controversy in these terms shaped the Court's public support. In so doing, we examine the distinction between (e.g., confidence in officeholders) and (e.g., institutional legitimacy). We find that framing the decision in terms of partisan decision making influences specific support, but it does not affect diffuse support. However, framing the justices’ motives in terms of ending the election, a specific consequence of the decision, reduces diffuse support.
And some additional papers of interest:

Tuesday, July 01, 2003
Robin Hanson I've seen several links to GMU economist Robin Hanson recently. You must check out his 14 wild ideas.

Greenhouse Reviews the 2002-03 Supreme Court Term Linda Greenhouse's review of the just completed term can be found here on the NYT website.

Marston on the Federal Marriage Amendment Brett Marston has a good post on Marstonalia on the proposed Federal Marriage Amendment.

Welcome to the Blogosphere I've just caught up with Publius Minor--a group blog subtitled "Contributions to a Critique of Politics, Law, Anthropology, and Literature" with contributions from Tom Donahue, Kate Curtis Donahue, and Bill Donahue. Check it out.

Review of the The Rule of Lawyers Philip K. Howard reviews The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law by Walter K. Olson in the Los Angeles Times. Here is a taste:
    Olson shows how in a justice system that honors the right to argue rather than right and wrong, literally any result is possible. The silicone breast implant cases, for example, were based on a supposition, as a lawyer argued, that the "ooze of slimy gelatin" must cause illness. A Houston lawyer named John M. O'Quinn took out advertisements asking "Are dream breasts to die for?" and sent a colleague on television to talk of "time bombs" in women's chests. O'Quinn went to juries arguing that companies that made silicone were "just plain evil," securing a verdict in one case for $25 million. Pretty soon his small law firm had thousands of cases, and he was negotiating million-dollar settlements for women whose only illnesses were unverifiable aches. The "truth" was supplied by a few experts who, without valid evidence, were willing to hypothesize terrible consequences. One doctor in Houston made $2 million per year selling his expert testimony and printed brochures for lawyers touting the benefits of his services. But it was all a sham. In 1994, the New England Journal of Medicine published a Mayo study showing no link between implants and any illness. Several more studies in the next year confirmed these findings. Did the studies end the charade? Certainly not. In a judicial system in which almost any argument is allowed to go to a jury, authoritative studies were little more than an inconvenience, easily neutralized by experts-for-hire. The lawyers issued press releases saying studies showed the opposite. I keep thinking of "The Music Man," where pool halls were the supposed evil — "Ya got trouble right here in River City Trouble with a capital 'T' and that rhymes with 'P' and that stands for pool!"

Rosen on Lawrence Check out this piece in the New Republic. Here is a taste:
    Indeed, the grandiosity of the Lawrence decision reveals how little liberal and conservative justices have learned about the hazards of activism in the 30 years since Roe was decided. There were moments on the Rehnquist Court when it seemed as if the justices had gotten out of the business of reading broad rights of personal autonomy into the Constitution--most notably in the right to die case in 1997, where they unanimously refused to create a broad right of physician-assisted suicide. But in a single, unnecessarily dramatic gesture, those bipartisan murmurings of restraint went out the window. The fact that the Court is likely to get away with its activism--as a political matter, few Americans will march to the barricades on behalf of sodomy laws--can't undo the damage of another self-inflicted wound. For when the next confirmation conflagration comes, the conservative minority that has lost the culture war in the political arena will be able to attack the Supreme Court for having turned them into victims, rather than being forced to acknowledge their failure to convince their fellow citizens of the rightness of their cause. "The Court has taken sides in the culture wars," Scalia charged in a foreshadowing of the conservative attacks to come. Absent Lawrence's muddled reasoning, on the other hand, the truth would have been impossible for conservatives to ignore: Far from taking sides in the culture wars, the Court only ratified a national consensus in favor of sexual autonomy after it was too obvious to be denied.

Evolutionary Psychology Department Economist Ted Bergstrom reviews Florian Herold's paper Carrot Or Stick: Group Selection and the Evolution of Reciprocal Preferences on NAJ Economics. Here is the review:
    This paper has the most interesting answer that I have seen to the question: How could natural selection produce creatures who get angry and bear costs to punish bad behavior even if no repeated encounter is likely? The paper also proposes an explanation of why some people will bear costs to reward good behavior, even without hope of reciprocity. The paper uses a "haystack model" in which individuals are randomly assembled into groups where they interact and reproduce. The number of offspring that a player has is her payoff in an n-player prisoners' dilemma game in her group after account is taken for punishments and rewards. If there are enough punishers or enough rewarders in a group, it pays everybody in the group to cooperate. Otherwise they all defect. The paper shows that with this setup, there exists an evolutionarily stable equilibrium in which all players are programmed to engage in costly punishment and where everyone therefore cooperates. It also shows that there is a polymorphic equilibrium in which some individuals reward cooperation and that there is no equilibrium in which nobody rewards cooperation. Here is a glimpse of how a population of costly punishers can be stable. If almost everybody in the population at large is a punisher, then in almost all groups, there is a preponderance of punishers and so everybody chooses to cooperate. So punishers never have to bear the costs of punishing. The only way that a non-punisher could have a different payoff from a punisher would be if the random matching process puts her in a group of enough non-punishers so that everybody in the group plays defect. The remarkable thing that Herold notices is that when non-punishers are rare in the population at large, the expected payoff to non-punishers will actually be lower than the expected payoff to punishers.

More on Strauss and the Neocons Gary Sauer-Thompson has an excellent post with a very nice set of links on

Law and Facism from Hart Hart Publishing has announced Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions, Edited by Christian Joerges and Navraj Singh Ghaleigh with a Prologue by Michael Stolleis and an Epilogue by J.H.H. Weiler. Here is the abstract:
    The legal scholarship of the National Socialist and Fascist period of the 20th century and its subsequent reverberation throughout European law and legal tradition has recently become the focus of intense scholarly discussion. This volume presents theoretical, historical and legal inquiries into the legacy of National Socialism and Fascism written by a group of the leading scholars in this field. Their essays are wide-ranging, covering the reception of National Socialist and Fascist ideologies into legal scholarship; contemporary perceptions of Nazi Law in the Anglo-American world; parallels and differences among authoritarian regimes in the Third Reich, Austria, Italy, Spain, and Vichy-France; how formerly authoritarian countries have dealt with their legal antecedents; continuities and discontinuities in legal thought in private law, public law, labour law, international and European law; and the legal profession’s endogenous obedience and the pains of Vergangenheitsbew?ltigung. The majority of the contributions were first presented at a conference at the EUI in the autumn of 2000, the others in subsequent series of seminars.