Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Links for Legal Theory Blog
--Lawrence B. Solum (My Homepage at the University of Illinois)
--My College of Law Directory Page
--My Philosophy Department Directory Page
--Legal Theory Annex
(All the theory that does not fit.)
--Legal Theory Lexicon
(Basic concepts in legal theory for first year law students.)
--My Publications on SSRN
Hiring Trends at 18 "Top" American Law Schools
2005-06 Report on Law School Entry Level Hiring
2004-05 Report on Law School Entry Level Hiring
2003-04 Report on Entry Level Hiring
Legal Theory Bookclub: Lessig's Free Culture
Getting to Formalism
Water Wells and MP3 Files: The Economics of Intellectual Property
Do Humans Have Character Traits?
The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?
Part I: The Three Step Argument
Part II: Stare Decisis and the Ratchet
Part III: Precedent and Principle
Fear and Loathing in New Haven
A Neoformalist Manifesto
Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy
Breaking the Deadlock: Reflections on the Confirmation Wars
Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts
09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006
--Displacement of Concepts
--Freedom to Tinker
--The Garden of Forking Paths
--Is That Legal?
--Law & Society Weblog
--The Leiter Reports
--Paper Chase @ Jurist
--The Right Coast
--Sentencing Law and Policy
--Statutory Construction Zone
Websites of Interest
+Arts and Letters Daily
+Economic Theory News
+Encyclopedia of Law and Economics
+Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository
+Law and Politics Book Reviews
+Metapsychology Book Reviews
+Notre Dame Philosophical Review
+Online Papers in Philosophy
+SSRN Most Recent Uploads
More Blogs of Interest
--The Blawg Review
--The Buck Stops Here
--A Copyfighter's Musings
--The Curmudgeonly Clerk
(John and Jessie Rosenberg)
--The Importance Of
--The Indiana Law Blog
(Marcia J. Oddi)
(Jeremy Phillips and Ilanah Simon)
--Law and Economics Blog
--Letters of Marque
--The Light of Reason
(Gary Sauer-Thompson )
--Public Defender Dude
--Rodger A. Payne's Blog
--Susan Crawford blog
--A Taxing Blog
--That's News to Me
--Thoughts Arguments and Rants
--Three Years of Hell to Become the Devil
--The Trademark Blog
Legal Theory Programs & Websites
--Arizona State Committee on Law and Philosophy
--Cambridge Forum for Legal and Political Philosophy
--Columbia Law School Center for Law and Philosophy
--Columbia Legal Theory Workhsop
--Georgetown University Law Center--Colloquium on Constitutional Law and Theory
--Jurisprudence and Social Policy Program (U.C. Berkeley)
--Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley)
--NYU Colloquium in Legal, Political and Social Philosophy
--Oxford Jurisprudence Discussion Group
--Oxford Legal Philosophy
--Oxford Centre for Ethics & Philosophy of Law
--Queen's University Belfast Forlum for Law and Philosophy
--Rutgers Institute for Law and Philosophy
--UCLA Legal Theory Workshop
--University of Pennsylvania Institute for Law and Philosophy
--University College London: Colloquium in Legal and Social Philosophy
--University of Chicago Law And Philosophy Workshops
--University of Chicago: John M. Olin Program in Law and Economics Workshop
--University of San Diego Institute for Law and Philosophy
--University of Texas Law and Philosophy Program
--Yale Law School: Legal Theory Workshop
Links to Law School Workshops
+Australian National University Faculty Events
+Columbia Center for Law and Economic Studies
+George Washington--IP Workshop Series
+Georgetown Colloquium on Intellectual Property & Technology Law
+Georgetown Law Workshops
+Georgetown Law and Economics Workshop
+Georgetown Law & Economics Workshop Series
+University of Illinois
+Lewis & Clark
+New York University
+NYU Legal History Colloquium
+Northwestern Law Colloquium
+Oxford Law Events
+Stanford Center for Internet & Society
+Stanford Law School Olin Series
+UCLA Legal History Workshop
+UCLA Tax Policy
--University of Chicago: John M. Olin Program in Law and Economics Workshop
+University of Michigan Law and Economics
+University of San Diego Colloquium Series
+University of Texas Colloquium Series
+Vanderbilt Scholarly Programs & Events Calendar
+Washington & Lee Faculty Workshops
+Yale Law, Economics & Organizations Workshop
Calendars & Events
+British Society for Ethical Theory
+Events in Analytic Philosophy in Europe (and Overseas Countries)
+The Philosophical Calendar
+Philosophy Now Calendar
+Political Science Online Upcoming Conferences
+SSRN Professional Announcements
--Australian National University, Research School of Social Science, Philosophy Seminars
--Boston University Philosophy Colloquia
--Brown University Philosoophy Upcoming Events
George Mason Workshop in Philosophy, Politics, and Economics
--Harvard University, Philosophy Colloquia
--MIT Philosophy Colloquia
--New York University, Philosophy Events
--Oxford: Events at the Faculty of Philosophy
--Princeton University: Philosophy Department Talks
--Princeton University: Political Philosophy Colloquium
--Princeton University: Public Law Colloquium
--Princeton University: Seminar in Law and Public Affairs
--Tulane Philosophy and Center for Ethics & Public Affairs Seminars
--University College, London: Political Theory Seminars
--University of Arizona Philosophy Colloquia
--University of Bristol Philosophy Research Seminars
--University of California at Berkeley Philosophy Events
--University of California at San Diego Philosophy Colloquia
--University of Chicago Political Theory Workshop
--University of London, School of Advanced Study, Philosophy Programme
--University of Manchester Politics & Philosophy Research Seminars
--University of Melbourne Philosophy Events
--University of North Carolina: Philosophy Speakers
--University of Pennsylvania: Philosophy Colloquiua
--University of Pittsburgh Philosophy Calendar
--Yale Philosophy Department Talks
Some Legal Theorist Homepages
--Robert Alexy (Christian Albrechts University Kiel)
--Randy Barnett (BU)
--Brian Bix (Minnesota)
--Jules Coleman(Yale Law & Philosophy)
--Ronald Dworkin(NYU & University College)
--John Finnis(Oxford and Notre Dame)
--John Gardner (Oxford)
--Brian Leiter (Texas)
--Micahel Moore (Illinois)
--Dennis Patterson (Rutgers, Camden)
--Stephen Perry (NYU)
--Richard Posner (University of Chicago & USCA7)
--Joseph Raz (Oxford and Columbia)
--Jeremy Waldron (Columbia
More to come!
Journals Specializing in Legal Philosophy
--American Journal of Jurisprudence
--The Journal of Philosophy, Science, and Law
--Law and Philosophy
--Law and Social Inquiry
--Oxford Journal of Legal Studies
Legal Theory Resources on the Web
Entries from the Stanford Encyclopedia of Philosophy
+justice, as a virtue
+legal philosophy, economic analysis of law
+legal reasoning, interpretation and coherence
+naturalism in legal philosophy
+nature of law
+nature of law, legal positivism
+nature of law, pure theory of law
From the Oxford Handbook of Jurisprudence
+Natural Law Theory: The Modern Tradition
From the Oxford Handbook of Legal Studies
+Law as an Autonomous Discipline
From the Examined Life
A Critical Introduction to Liberalism
Papers & Articles
+American Political Science Association(APSA)
+American Society for Political and Legal Philosophy (ASPLP)
+Association of American Law Schools(AALS)
+Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR)
+Law and Society Association
+Midwest Political Science Association (MPSA)
My Postal Address
Lawrence B. Solum
University of Illinois College of Law
504 East Pennsylvania Ave
Champaign, IL 61820
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:
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):
2. Gregory Keating, ³Pressing Precaution Beyond the Point of Cost-Justification² 56 Vanderbilt Law Review 653 (April 2003), forthcoming, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=424609.
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
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:
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 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.
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 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 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.
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.
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 Consumeralert.org:
--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."
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:
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:
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:
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:
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:
Call for Papers
Domain Name Policy Anupam Chander (UC Davis) post The New, New Property, forthcoming in the Texas Law Review on SSRN. Here is the abstract:
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:
New Papers on the Net Here is today's roundup:
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
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:
Other Reactions from Hither and Yon
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.
Context Here is a bit from near the start of Cohen's article that puts his argument in context:
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:
Three Premises Cohen's main argument has three premises. Here they are:
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."
"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."
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?
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.)
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:
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.
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:
Bogart on Hume Lawyer and philosopher John Bogart writes with respect to Hume on the move from is to ought:
New Papers on the Net Here is today's roundup:
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:
Lorne Falkenstein (University of Western Ontario) presents Hume and Reid on the Nature of Consciousness.
Mark Collier (Stanford) presents A new look at Hume’s theory of probabilistic inference.
Claudia Schmidt (Marquette University) presents Hume, Kant, and Hegel on the Use of Teleological Principles in Historical Narrative.
Peter Fosl (Transylvania University) presents Hume’s Skeptical Naturalism.
Dmitri Kuryshkin (Moscow State University) presents Searching for Objective Social Foundations: David Hume’s Analysis of the Origin of Law and Government.
Gerald Lang (Oxford University) presents Hume’s Remedy for Instrumentalism.
Arthur L. Morton (University of Cincinnati) presents Intelligibility and Error in Hume’s Theory of the Understanding.
Elisa Hurley (Georgetown University) presents Sentimentalism and the Moral Point of View in Hume’s Moral Theory.
Peter Millican (University of Leeds) presents Hume, Miracles, and Probabilities: Meeting Earman’s Challenge.
Saul Traiger (Occidental College) presents Prior Fictions.
Abraham S. Roth (University of Illinois, Chicago) presents The necessity of necessity: The Significance for Hume of the Idea of Necessary Connection.
Session on Imagination in Hobbes and Hume:
Jani Hakkarainen (University of Tampere) presents Imagination in Hobbes and Hume.
Martin Bertman (University of Helsinki)presents Imagination: Hobbes and Hume.
Coherence and the Loose Idea: Brandon Watson (University of Toronto) presents Mental Impulse in Hume’s Theory of the External World.
Session on Hume and the Monkish Virtues:
Will Davie (University of Oregon) presents Revisiting Monkish Virtues.
Jean-Pierre Schachter (Huron University College) presents Hume’s Principles of World Construction.
Joseph Filonowicz (Long Island University/Brooklyn Campus) presents Are Ethical Propositions Statistical? C.D. Broad’s Critique - and Defense - of Hume’s Subjective Theory of Moral Judgments.
Bethany Hoffman (Harvard University) presents Hume’s Theories of Belief.
Session on Chas. Hendel’s Studies in the Philosophy of David Hume:
Craig Walton (University of Nevada, Las Vegas) presents Comments on Charles W. Hendel’s Studies in the Philosophy of David Hume (1925; 1962).
Peter Loptson (University of Guelph) presents Charles W. Hendel and Hume: A Review and Reconsideration.
Anne Jaap Jacobson (University of Houston) presents Hume and Representation: Understanding Duration and Abstraction.
Rachel Cohon (SUNY Albany) presents Why Hume Thinks Reason is Not a Motive to the Will.
Kevin Meeker (University of South Alabama) presents Hume on Certainty, Knowledge, and Probability: Anticipating the Disintegration of the Analytic/Synthetic Divide?.
Don Baxter (University of Connecticut) presents The Criterion of Identity and the Principium Individuationis.
Session on H. H. Price’s Hume's Theory of the External World:
Peter Thielke (Pomona College) presents The Price of Gap-Indifference: Hume, Kant, and Objective Successions.
Fred Wilson (University of Toronto) presents Price’s “Hume’s Theory of the External World”: An Appreciation.
Monday, July 28, 2003
Metaethical Prejudice: More Remarks on Ethical Naturalism
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:
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:
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:
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:
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.
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:
Sunday, July 27, 2003
Evans on Dawkins Matt Evans (The Buck Stops Here) criticizes Richard Dawkins for proposing a "naturalistic ethics,"
Hume on Is and Ought In his Treatise of Human Nature (online version here) (1739), David Hume makes the following argument:
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:
A Thought Experiment I find the following thought experiment helpful:
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:
Conference: Reasonable Partiality
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:
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:
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:
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:
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:
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:
New Papers on the Net Here is today's roundup:
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:
Call for Papers: Human Good Dignity, Equality, and Diversity
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:
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:
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:
New Papers on the Net Here is today's roundup:
Kenji Kutsuna (Kobe University - Graduate School of Business Administration), Janet Kiholm Smith (Claremont McKenna College - Department of Economics) and Richard Smith (Claremont Graduate University - Drucker Graduate School of Management) post Banking Relationships and Access to Equity Capital Markets: Evidence from Japan's Main Bank System.
Stefan Grundmann and Florian M?slein (Friedrich Alexander Universit?t Erlangen Nürnberg - Law School) post Golden Shares - State Control in Privatised Companies: Comparative Law, European Law and Policy Aspects.
George H. Zanjani (Federal Reserve Bank) posts Regulation, Capital, and Organizational Form in U.S. Life Insurance.
Claudio Montenegro (World Bank) and Carmen Pages (Inter-American Development Bank post Who Benefits from Labor Market Regulations? Chile 1960-1998.
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:
Wednesday, July 23, 2003
New Papers on the Net Here is today's roundup:
Brian Hall (Harvard University - Negotiations, Organizations and Markets Unit) posts Six Challenges in Designing Equity-based Pay, forthcoming in the Journal of Applied Corporate Finance.
Yuntsai Chou (Yuan-Ze University - Graduate School of Social Informatics) posts Allocating Spectrum Institutionally: A Study of Property Right & Policy Credibility.
Ralph Chami , Mohsin Khan and Sunil Sharma (International Monetary Fund) post Emerging Issues in Banking Regulation.
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:
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:
Pryor The NYT has an editorial opposing confirmation of William Pryor to a seat on the Eleventh Circuit. Here's a taste:
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:
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:
11:30-1:00 John Ferejohn
3:00-4:30 Rae Langton
11:30-1:00 Richard Holton
3:00-4:30 Philip Pettit
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:
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
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:
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:
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.
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 GlennReynolds.com.
New Papers on the Net Here is today's roundup:
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:
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:
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:
New from Hart Hart publications has announced a few new legal theory titles:
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:
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:
Samuel Gross and Daniel Matheson (University of Michigan) post What They Say at the End: Capital Victims' Families and the Press, forthcoming in the Cornell Law Review.
Julian Alworth (Bocconi University), Giampaolo Arachi (Bocconi University), and Rony Hamaui (Università Cattolica) post Adjusting Capital Income Taxation: Some Lessons from the Italian Experience.
Jean-Yves Pitarakis (Southampton, Economics) and George Tridimas (University of Ulster at Jordanstown, Policy Studies ) post Joint Dynamics of Legal and Economic Integration in the European Union.
Erik Berglof (Stockholm School of Economics) and Mike Burkart (Stockholm Institute of Transition Economics) post European Takeover Regulation.
Whose Republic.com? Anupam Chander (U.C. Davis) has posted Whose Republic? on SSRN. Here is the abstract:
New Papers on the Net 1 Once again, there are many new papers on SSRN. Here is the first installment for today:
Yener Kandogan (University of Michigan at Flint, Management) posts Power Analysis of the Nice Treaty on the Future of European Integration.
Dianne Otto (University of Melbourne, Faculty of Law) posts Addressing Homelessness: Does Australia's Indirect Implementation of Human Rights Comply with its International Obligations?, forthcoming in PROTECTING HUMAN RIGHTS, Tom Campbell, Jeffrey Goldsworthy, and Adrienne Stone, eds., Oxford University Press, 2003.
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:
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.
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:
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:
Second, Petit seems to think that the following point is relevant:
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.
Mandle on Rawls Jon Mandle at Crooked Timber has a post on Rawls's The Law of Peoples. Here is a taste:
Schauer on Neutrality Frederick Schauer (Harvard, Kennedy School) has posted a revised version of Neutrality and Judicial Review on SSRN. Here is a taste:
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):
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:
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:
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:
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:
Monday, July 14, 2003
Scrivener's Error, Part I: "Logical Vacuum"
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.
Petit's Criticism C.E. Petit offered the following criticism of my argument on Scrivener's Error:
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:
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:
Guinn v. Nevada State Legislature
Coverage on the Volokh Conspiracy Eugene Volokh has done some excellent blogging on Guinn. Here, here, and here.
Call for Papers on Law and Democracy
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:
New Papers on the Net Here is the roundup:
Anthony Catanach and Shelley Rhoades (Villanova, Business) offer Enron: A Financial Reporting Failure?, forthcoming in the Villanova Law Review. From the abstract:
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:
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":
Night of the Living Dead Constitution, Part 2 of 3
(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).
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 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.
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:
Scroll up for Parts 1 and 2.
Fast Forward Richard Posner's Aimster opinion includes the following:
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:
(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).
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.
Copynorms & Litigation Costs
Litigation Costs and Procedural Justice Consider the three standard models of procedural fairness:
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.
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:
Wednesday, July 09, 2003
Die, Constitution, Die
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:
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):
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
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:
A Bit of History
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:
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:
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:
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"?
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:
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:
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 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 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.
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 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"?
--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.
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:
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:
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:
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:
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."
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:
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:
--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:
--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.
Lipkin on the Holding in Lawrence Robert J. Lipkin writes re my post on the holding in Lawrence (and Balkin's prior post):
New Papers on the Net Here is the roundup:
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:
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:
Oman on Coke I highly recommend Nate Oman's post on Lawrence and the role of tradition. Here is a taste:
Woeful Ignorance Christianity Today has a piece on the Supreme Court's "rejection" of "natural law" in Lawrence. Here is a taste:
Star Power Great piece in the Boston Globe on celebrity academics. Here is a taste:
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:
Thursday, July 03, 2003
Diversity on the Supreme Court Check out this editorial in the Washington Post. Here is an excerpt:
Is the Supreme Court Politicized?
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:
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:
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:
New Papers on the Net Here are some new papers from hither and yon:
Miriam Gur-Arye posts Legitimating Official Brutality: Can the War against Terror Justify Torture?
Jennifer K. Robbennolt, John M. Darley, and Robert J. MacCoun upload Symbolism and Incommensurability in Civil Sanctioning: Decision Makers as Goal Managers.
Yuval Feldman and Robert J. MacCoun offer Some Well-Aged Wines for the "New Norms" Bottles: Implications of Social Psychology for Law and Economics
Robert D. Cooter presents Who Gets On Top in Democracy? Elections as Filters.
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:
Rosen on Lawrence Check out this piece in the New Republic. Here is a taste:
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:
More on Strauss and the Neocons Gary Sauer-Thompson has an excellent post with a very nice set of links on philosophy.com.
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: