Legal Theory Blog

All the theory that fits!


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

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Sunday, August 31, 2003
Legal Theory Calendar
    Thursday, September 4 Friday, September 5 Saturday, September 6
      At Oxford on Saturday, there will be a Colloquium in Honour of Christopher Taylor. Here is the lineup:
        Sir Anthony Kenny (Oxford) topic to be confirmed Professor Jonathan Dancy (Reading): "What Reasons Do" Professor Gavin Lawrence (UCLA): "Aristotle and Free Time" Dr Roger Crisp (Oxford): "Hedonism Reconsidered" Professor Christopher Taylor (Oxford) `Courage and Wisdom in the 'Protagoras' and the 'Nicomachean Ethics''.

Muller on the National Constitution Center Eric Muller blocs on the National Constitution Center over at the Conspiracy. Muller agrees with my observation that the centerpiece of the museum (an multimedia presentation combining a live actor with high tech visual images and audio) doesn't actually say much about the Constitution itself. He continues:
    But I do not view this as a flaw, especially in a museum that is trying to reach John and Jane Q. Citizen, not John and Jane Q. Law Professor. I saw the presentation as drawing attention to two things: the originality, promise, and perpetual reworking and renewal of the American constitutional experiment in self-rule (on the one hand), and the (primarily equality-based) flaws embedded in that experiment (on the other). Sure, neither of these themes turns on a precise reading of Articles I, II, or III. But don't those themes capture the essence of American constitutional history about as well as you're going to be able to do for the general public in 18 minutes?
I couldn't disagree more. Perhaps Eric and I have vastly different ideas about the intelligence and capacities of the American public. I believe that John and Jane Q. Citizen have the interest and ability to learn something of substance about the Constitution. And this is especially true of those who have decided that they want to go to the National Constitution Center--a self-selected audience that is likely to be eager to learn something about what the Constitution actually says. I agree with Eric that popular sovereignty and equality are important themes in American constitutional theory, but would it have detracted from those theme to mention the 14th amendment to the Constitution or some of the provisions of the bill of rights or the idea of limited powers in Article One? Perhaps, Eric and I simply disagree about what could be accomplished in 18 minutes. Obviously, that span is insufficient for depth, but it is more than ample to serve what should be the Center's mission--to interest those who attend in what the Constitution itself says and how that language has made a difference to our history. Sadly, the Center fails on that score. Eric's own example--the complete failure of the Center to confront the Korematsu case is itself compelling evidence of the tragically wasted opportunity.

Saturday, August 30, 2003
Blogging from Philadelphia: Natural Law in a Secular Society
    It is Saturday afternoon in Philadelphia at the annual meeting of the American Political Science Association. The panel is hosted by the Committee on the Political Economy of the Good Society, and it is title Roundtable on Natural Law a Secular Society. The Chair is Robert George (Princeton, Politics). (Frustratingly, the speakers are limited to 10 minutes. This is a terrible format for scholarly presentations.) He begins with a critique of title of the symposium, by questioning the assumption that America is a secular society. And George is right, the category of the secular is frequently substituted for the category of the pluralist. The United States is a pluralist society but not a secular one. George begins to stray from the topic of the panel, discussing the meaning of the religion clauses and the religious test clauses, but finally works his way round to the topic of natural law. George then introduces the panel.
      Randy Barnett is up first. (You can download his paper from SSRN: here is the link.) Barnett is well known for his theory of natural rights, and he begins his talk by observing that the theory of natural rights is not well-known among those in the legal academy. (I wonder if Barnett is as right about this today as he was when he first made this claim several years ago.) Barnett’s view is that natural-law and natural-rights reasoning have the structure of a hypothetical imperative: Given the nature of X if you want achieve Y, then you must do Z.
        Comment: Barnett consciously elides the question whether ends themselves are given by nature. This move is fair enough—Barnett’s point is to avoid the strong assumptions required by the idea of natural ends. But in an important sense the natural law (as opposed to natural rights) tradition is all about the naturalness of ends.
      Natural rights then are principles of action that required for humans to achieve their ends, given the nature of humans and the world in which they live. What their ends? Barnett’s answer is “to pursue happiness.” Natural rights theory simply identifies the space (or sphere of autonomy) that is necessary for humans to achieve the ends that all humans share. Barnett emphasized the difference between natural rights and natural law, which as Barnett understands it is concerned with what individual actions are conducive to happiness.
      Herman Belz (University of Maryland) is next. He asks: is there a natural law, what is it, how is it to be made effective, and what does it have to do with religion, what is the metaphysical ground of natural law? Belz says that the significance of natural law is to constitute an order to human flourishing. Belz then quickly moves through a laundry list of recent natural law scholarship. Belz then shifts to the question whether “natural law” is a useful bit of terminology, quoting Russell Hittinger for the proposition that it is not. He then jumps again, talking about “natural law” as a theory of law and legal authority. Belz then argues for a position that directly contradicts Barnett, arguing that unless natural rights begin with moral premises, they lack moral standing. At this point, Belz’s argument is completely obscure; I simply had no idea what he might be trying to say.
      Stephen A. Simon (University of Maryland) follows Belz. Simon disarmingly admits his status as a graduate student. He asks: “How do we recognize natural rights discourse, where do we find it, does it make a difference?” He signals that he we also address the question as to what role natural rights play in constitutional discourse? Simon complains that the Supreme Court frequently reduces rights to a balancing of interests and suggests that natural rights discourse offers alternative to this. He then turns to the word “liberty” in the 14th Amendment of the United States Constitution. Simon then turns to the question whether natural rights analysis is sufficiently determinate to guide particular constitutional decisions. Unfortunately, he runs out of time, just as things are starting to get interesting.
      Karol Soltan (University of Maryland) follows. Soltan starts by making a distinction between the natural law of the natural law versus positivism debate. And natural law can also be a distinct body of law. What kind of law is this? (Soltan refers to the famous “natural law . . . is discovered” passage from Cicero’s De Re Publica.) Natural law, he says, is universal and unchanging. Soltan notes that these claims of universality and atemporality is seen as implausible. Soltan notes that the usual reason given here is epistemic but that Cicero’s claims are ontological. Natural law can be unchanging, even if opinion about its content changes. Soltan then briefly suggests a possible connection between natural law and basic human rights.
      Christopher Wolfe (Marquette University) is the next speaker. Wolfe suggests four conception of natural law: (1) human beings have natures that direct how we should live—a very general and abstract but indeterminate conception; (2) there is a stable human nature that sets limits on the means by which humans can achieve a satisfactory existence; (3) a natural order of beings whose fulfillment consists in their realizing their innate potential (e.g. development of the human excellences or virtues); (4) natural law as understood by Aquinas, connected to the grasping of self-evidence first principles. Wolfe then suggests “natural law liberalism,” a common good the emphasizes the individuality and dignity of each individual, the plurality of ways of human life, and the importance of liberty.
      Discussion: The initial discussion focuses on Barnett’s distinction between natural law and natural rights. George is particularly interested in the relationship between his account of the common good as the end of society, which does suggest the importance of liberty, but which George argues requires more than rights. George argues that common good is the key concept. Barnett does not disagree with the abstract formulation, and emphasizes that even on his libertarian view, rights are not the whole story. Barnett uses “rightful” and “wrongful” and “good” and “bad.” What law can do, Barnett argues, is prohibit wrongful activity. It can regulate but not prohibit rightful activity. Wolfe asks whether it would be a violation of the rights of others to disobey a conscription law? Barnett replies that conscription laws are themselves violations of natural rights. Barnett notes, however, that this goes to the substance of one’s theory of natural rights—as opposed to the general structure of natural rights, per se. George then throws this question on the floor: Can there be natural law if strict materialism is true? Unfortunately, this topic is dropped and the discussion turns to the question whether religion is necessary at what I would call a “rhetorical” or “psychological” level. George himself suggests that religion can open one to the idea of a moral order, or, in the case of some religions, close one to that idea. Sotiris Barber jumps with a question for George on whether this openness or closedness should be a criterion by which one selects are religion—a question that seemed to take the discussion far afield of the topic at hand.
    All in all, a stimulating if somewhat unfocused and bombastic session. It is shame that George and Barnett could not have gone at each other directly--now that would have bee a show!

Download of the Week Each Saturday, I recommend one of the new papers discussed on this blog from Sunday through Saturday as the download of the week. This week my recommendation is Mark Tushnet's Clarence Thomas's Black Nationalism, forthcoming in the Howard Law Journal. Tushnet is without doubt one of the most creative, thoughtful, and intellectually rigorous constitutional theorists working today. He was, of course, one of the most important members of the Critical Legal Studies movement, and he continues to write with unusual clarity and depth about the fundamental issues of constitutional theory. If you already know Mark's work, you have likely downloaded the paper already. If you do not, you are in for a treat.

Barnett on Natural Rights at APSA Today at the American Political Science Association meeting in Philadelphia, Randy Barnett is presenting The Imperative of Natural Rights in Today's World on SSRN. Here is the abstract:
    If there is any group that really needs to understand the concept of natural rights, it is professors of constitutional law. The document they teach was written by a generation who uniformly believed in natural rights, used the concept to justify a violent revolution from their mother country, and professed their continued commitment to natural rights long after the separation - a commitment that only intensified in the years that culminated in the Civil War and the adoption of the Fourteenth Amendment. Yet few constitutional law professors know much, if anything, about this fundamental concept even as a historical matter, much less as a concept worthy of continued application in today's world. The prime evidence of their lack of knowledge is the fact that they use the terms "natural rights" and "natural law" interchangeably despite the historical and theoretical distinctness of these terms. In this paper prepared for a panel sponsored by the Political Economy of the Good Society to be held at the annual meeting of the American Political Science Association, I will provide what I hope will be viewed as a readily accessible explication of these concepts that has as much practical application today as it did in the days of John Locke or James Madison. Although this is decidedly my take on natural law and natural rights, I think it is true to the heart of the concept and can be used to make sense of historical materials that are otherwise inexplicable to modern constitutional scholars. And this vision of natural rights is as important today as it was in 1776 or 1868.

Friday, August 29, 2003
Blogging from Philadelphia: Pluralism and Political Virtue
    This morning at APSA, I am blogging from Room 106A of the Philadelphia Convention Center. The panel is entitled Pluralism and Political Virtue. The room is full, and I see many distinguished political philosophers and theorists in the room—Philip Pettit (Princeton) is sitting in the row ahead of me, and William Galston is four rows ahead. Nancy L. Rosenblum (Harvard) introduces the panel, and asks “Who wants to go first?”
      Michael Kochin (University of Tel Aviv & Yale) volunteers. His paper is titled The Unity of the Political Virtues, and he moves quickly past Aristotle and to the question, “What are the qualities of a good American citizen?” and “Are there a plurality of good lives?” Paraphrasing Sabl, Kochin says that one life is a political life, and that a political life can be lived well or badly. Now, Kochin switches to the question whether Americans do or should aspire to the highest political office, the Presidency. Kochin riffs on the theme that wanting to be a professional politician in general or President in particular is a sign of dysfunction. Switching key, Kochin is now improvising on Churchill’s novel Savarola. Political life has decayed, Kochin says, from the noble politics of patronage to the ignoble politics of ideology. He ends on a sour note, ridiculing the notion that politics today could be seen as a noble calling. What happened to the unity of the political virtues? Must be case of topic change twixt the program and the event.
      Mariah Ananda Zeisberg (Princeton) is next up. Her paper is titled Value Pluralism and Constitutional Meaning. Zeisberg’s paper was about one of the central questions in constitutional theory—whether the constitution should settle issues or actually facilitate disagreement. Zeisberg’s thesis is that the constitution should, at least with respect to some issues, allow issues to be unsettled, acting as a locus for dispute and disagreement. To illustrate the way in which constitutional meaning can be “ussettled,” Zeisberg emphasizes the phenomenon of constitutional conflict, giving as an example the tension between “national security” and “freedom of speech.” The constitution, she argues, is silent on the question of how these two constitutional commitments are to be reconciled. Zeisberg then argued that constitutional conflict leads to political benefits. For example, she argued that groups mobilize to make constitutional claims, leading to retheorizing of the underlying value conflicts. In other words, constitutional conflict can serve as a catalyst for the rethinking of important normative issues. Zeisberg then turns to what she calls the settlement thesis. The constitution, she argues, is not designed to settle disputes, but often is designed to enable or initiate them. (Equal protection, she argues, is an example.) The struggle to create constitutional meaning is a form of democratic politics.
        Comment on Zeisberg: I thought this was a smart and interesting paper, but based on the oral presentation, I was a bit puzzled about the way the full normative argument would work. In particular, although I could see that unsettled constitutional meaning has advantages, I wondered how Zeisberg would respond to the conventional litany of disadvantages. For example, unsettled constitutional meaning may undermine rule of law values—by leaving fundamental issues in a perpetual state of uncertainty. Although constitutional conflicts open up opportunities for democracy to operate, they also close democratic channels, especially insofar as judges rather than democratically elected officials are charged with resolution of the constitutional conflicts. I’m sure that Zeisberg has responses. Hopefully, she will put her paper up on the web!
      Andy Sabl (UCLA) presents the final paper, Political Virtues and Value Pluralism. He says that paper is about liberal virtues, and Sable mentions Stephen Macedo, William Galston, Michael Walzer, and Amy Gutmann as among those who have worked on these problems. But, Sabl argues, these accounts of virtue are incompatible. Macedo argues for Millian virtues, while Galston emphasizes bourgeois virtue, and Gutmann Deweyian virtue. Walzer wants to accept more conflict and hence less cooperation. So, Sabl, says, what explains the conflict? We need to distinguish core virtues and ideal virtues. Some virtues really are necessary for the survival of liberal democracy. Everything else is part of a certain idea. There is a debate about where democracy out to be going, and this debate will not be resolved. Sabl continues to argue that virtues are pluralistic. First, because of value pluralism--not everyone can reflect all the virtues. People are different and occupy different roles and fulfill different responsibilities. Furthermore, the political virtues are episodic—things are virtues at one time in history and not at others. Sabl ends with the thesis that civic virtue and political virtue do not overlap. Ordinary citizens do not need to help those in need as do politicians.
        Comments on Sabl: Sabl’s paper was very interesting, but also problematic:
          First, Sabl doesn’t seem to have any concept of a “virtue” operating. As I was listening to his talk, I began to substitute “action” or “behavior” for “virtue,” and nothing seemed to change. This is quite worrisome, as talk of virtue without a concept of virtue can be quite empty. For example, Sabl’s claim that political virtues differ from civic virtues is empty until there is a relatively determinate conception of virtue on the table.
          Second, the distinction between core and ideal virtues—while valuable—misses the important mark. Sabl is trying to cope with disagreement about the virtues, but the core versus ideal distinction doesn’t track the distinction between virtues on which there is consensus and virtues on which there is dissensus. Some virtues in Sabl’s core will be the subject of disagreement, while others which are ideal will be the subject of agreement. A more apt distinction is between thick and thin theories of the virtues. Thin theories make weak assumptions. A thin theory of the virtues is one that can be affirmed by those who disagree on substantive political ideals. A thick theory of the virtues makes strong assumptions. It specifies those virtues are implied by the controversial assumptions of particular controversial political doctrines. A thin theory can become the subject of an overlapping consensus between those who disagree about political substance.
      Jeffrey Tulis (University of Texas, Austin) is the discussant. He finds little to say about Kochin, noting the lack of evidence for Kochin’s thesis politics has “decayed.” Tulis remarks favorably on Zeisberg’s paper, noting that Zeisberg might want to take on Larry Alexander (University of San Diego) and Fred Schauer (Harvard) who argue for the settlement thesis, or something like it. On Sabl, Tulis begins with a well-received joke, noting that he must be getting old, given Sabl’s distinction between the early and late periods in the work of Stephen Macedo. Tulis criticizes Sabl’s distinction between the core and ideal virtues—along lines similar to those I sketched above.
      In the ensuing discussion period, many interesting points are made. Kochin disagrees with Sabl over the role of politicians, with Kochin disagreeing with Sabl’s characterization of citizens as those in need. Sabl addresses the question whether the instrumental view of political virtue is self-undermining, responding that he does not worry about this, since no one listens to political theorists. I ask Andy Sabl what he means by virtue, noting that much of his discussion could be about either action or attitude. Sabl gives a most unsatisfactory answer—saying that this is a problem, but that he doesn’t mean anything deep by virtue but rather is mere dispositions to act. O.K., but then nothing is added by the term “virtue.” Mere dispositions to act are simply actions. Without something deeper—without an account of the mechanism of disposition—there is no point to using “virtue” as the framework for discussion. Philip Pettit asks an eloquent and deeply smart question, which the panel does not quite seem to get. Later, Jacob Levy (University of Chicago) and Zeisberg have a good exchange.
      In further discussion, William Galston makes a few points, one of which is that a functional account of virtue makes the specification of the end the determinant of what counts as a virtue. He emphasizes that Deweyian democracy and socialist democracy are not necessarily liberal democracy. His own account of the virtues, he argues, is based on a particular ideal of liberal democracy. Galston emphasizes that then the importance of virtue becomes an empirical question, quoting Kant’s famous remark about a nation of devils: if we get the institutions right, the distribution of virtues may not matter. Galston says he his own project was to show that Kant was wrong on empirical grounds. As Galston continues to speak, the audience ceases to fidget and listens with rapt attention. His remarks are so illuminating and penetrating that they bring the whole session together in a way that is rare and fine. Sabl responds, but his answer seems confused. He says that the empirical inquiries are value laden, but then talks as if Galston had said that what constitutes “liberal democracy” is an empirical question—missing the point of Galston’s remarks. The discussion continues a bit, with Galston noting that Sabl seems to refer to “equality” as a virtue, an obvious mistake. Sabl writes a promissory note for a vindication of his remarks on this last point.
    The session ends, and I'm off to lunch.

Conference Announcement: Law, Loyalty, and Treason
    On October 10, 2003, the University of North Carolina will host a conference entitled Law, Loyalty, and Treason: How Can the Law Regulate Loyalty without Imperiling It?. Here is the description:
      How should the law regulate loyalty? As recently as three years ago, the Constitution's Treason Clause seemed a dead letter, and concerns about national loyalty seemed a relic of a bygone era. The September 11 terrorist attacks changed that. Since then, accusations of treason have swirled around a number of American citizens, including the "American Taliban" John Walker Lindh, the journalist Peter Arnett, the men and women who traveled to Iraq to serve as "human shields" against American military action, and even prominent musicians and actors. Arabs and Muslims in the United States have seen their loyalties questioned on account of their ethnicity and their faith. The Attorney General has equated criticism of the Administration's antiterrorism efforts with support for America's enemies and an assault on American unity. With these issues of treason and allegiance back in the spotlight, this Symposium will gather leading legal scholars and historians at the University of North Carolina School of Law to examine the past, present, and future of the law's relationship to loyalty. Scholars from fields as diverse as labor and employment law, constitutional history, and the philosophy of the criminal law will provide a rich account of the challenges of regulating loyalty by law. And an impressive array of historians and legal scholars will examine conflicts and crises of loyalty that arose at key moments in American history, including the early Republic, Reconstruction, both World Wars, the Korean Conflict, the Cold War, and Vietnam. From these presentations, both conceptual and historical, the Symposium will invite debate and reflection on how law can both enforce and imperil loyalty during times of crisis.

Goode on the Whole Person Today at the University of Texas law faculty workshop series, Steve Goode does an internal workshop titled "Meeting of the Committe of the Whole Person."

New Papers on the Net Here is today's roundup:
    Juridical and Jurisdictional Disconnects Mark Drumbl Washington and Lee University School of Law Abstract:
      Although extraterritorial trials for human rights abusers certainly achieve some justice, this Article posits - through a case-study of post-genocide Rwanda - that the effects of such trials are circumscribed by the fact they may have little meaning among perpetrators and victims in post-conflict societies. This limited meaning particularly attaches to trials conducted extraterritorially through international tribunals as well as trials conducted in foreign national courts through the exercise of what loosely is called "universal jurisdiction." This circumscribed meaning results in these trials' having limited deterrence effects, although they may go some way to satisfying the deontological need to punish aggressors. Incommensurabilities may arise when the legal culture in which the trial is conducted contrasts with the legal culture of the post-conflict society. These incommensurabilities may reflect deeper divides between "us" in the West and "others" in the rest of the world. These divides are prompted by the fact that international human rights law as implemented through international tribunals is proffered as a putatively "universal" construction, but this may belie its perceived origins in Western legal norms. Moreover, those national courts exercising universal jurisdiction over human rights abuses generally are Western courts, and the subject matter of the jurisdictional exercise often are abuses in the developing world. Assuming the existence of some sort of international legal duty to prosecute systemic human rights abusers, then whatever meaning extraterritorial trials might convey could be enhanced if such trials are carefully constructed and take into account contextual elements such as local culture, law, and history. This way, trials may be geographically extraterritorial, but not as legally, culturally, spiritually, and socially extraterritorial. By way of prescription, this Article offers some preliminary insights relevant to the ongoing prosecutions of Taliban fighters and al-Qaeda terrorists.
    The Juridical Management of Factual Uncertainty International Journal of Evidence and Proof, Vol. 7, p. 1, 2003 Ronald Allen and Craig Callen Northwestern University Law School and Michigan State University-DCL College of Law Abstract:
      Civil presumption doctrine in the United States is unnecessarily complex and essentially unnecessary. Evidence law affords a number of evidentiary devices for managing uncertainty, which civil presumptions, at best, merely replicate, but in a different vocabulary with the attendant unnecessary complexity. We survey the critical similarities of evidentiary devices, which can save time and expense, but seldom affect the final outcome of litigation, and demonstrate the manner in which civil presumptions are mere substitutes for other well known evidentiary devices. We further show the unnecessary complexity introduced by instructions on presumptions. The potential that presumption instructions have for harmful effects on jurors, and the effort required to master the intricate formalities of presumptions, suggest that the main reason for their continued existence is distrust of jurors, and perhaps appellate court distrust of trial courts, and that an appreciation of the extent to which presumptions duplicate other evidentiary devices can be the key to sorely needed reform.
    Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts Harvard Environmental Law Review, Vol. 27, p. 295, 2003 Daniel Barnhizer Michigan State University-DCL College of Law Abstract:
      This Article explores the feasibility of using "givings recapture mechanisms" to promote effective land use management on coastal floodplains. Specifically, current government responses to floods and flood risks-typified by regulatory restrictions on floodplain land use, structural protections, and flood insurance or disaster relief-transfer substantial "givings" to private property owners. These givings have dramatically increased the value of coastal properties and continue to promote or maintain in place unwise and unsustainable coastal floodplain development. Ironically, increased coastal property values resulting from such givings have rendered prohibitively costly one land use management technique that has proven effective at reducing flood losses - public acquisition of high-risk or environmentally sensitive private property. While many scholars and commentators have approached this problem from the perspective of eliminating subsidization of floodplain development, my analysis is unique in that it recommends that government attempt to recapture past givings by offsetting those givings as a credit against the compensation the government must pay when it acquires private floodplain property. Such an approach would protect legitimate investment-backed expectations of landowners while effecting a long-term retreat from coastal floodplains threatened by rising sea levels and increasing hurricane risks.
    Making Sense of the Eleventh Amendment: International Law and State Sovereignty Northwestern University Law Review, Vol. 96, p. 1027, 2001-2002 Thomas Lee Fordham University - School of Law Abstract:
      The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
    Now that abstract is short and sweet!
    Privacy Wrongs in Search of Remedies Hastings Law Journal, Vol. 54, 2003 Joel Reidenberg Fordham University School of Law Abstract:
      The American legal system has generally rejected legal rights for data privacy and relies instead on market self-regulation and the litigation process to establish norms of appropriate behavior in society. Information privacy is protected only through an amalgam of narrowly targeted rules. The aggregation of these specific rights leaves many significant gaps and fewer clear remedies for violations of fair information practices. With an absence of well-established legal rights, privacy wrongs are currently in search of remedies. The American public is beginning to demand that data privacy violators be held accountable. In a recent survey, Internet users overwhelmingly called for sanctions ranging from jail time to blacklisting of organizations that failed to respect privacy policies. Public enforcement actions and private law suits in the United States are just emerging as an important force in the creation of adequate protection for citizens' personal information in American society. This Article first describes privacy rights and wrongs that frame the search for remedies in the United States. In particular, this section focuses on two different types of harm created by the misuse of personal information and the desire to find protective rights: personal or private wrongs and public or societal wrongs. Next this Federal Trade Commission and state Attorneys General have become important "enforcers" against personal wrongs, but their efforts fall short of accomplishing systematic change and fail to provide individual victims with any real remedy. The third part of this Article examines private claims for privacy wrongs. This section explores some tortured efforts to obtain redress for privacy violations and offers a few theories for unexploited and unexplored claims. Finally, this Article concludes with an instrumentalist view of the search for remedies. The current mismatch between privacy wrongs and remedies creates a destabilizing force that will ultimately push in favor of enhanced legal rights for data privacy.
    Everyday Indignities: Race, Retaliation, and the Promise of Title VII Columbia Human Rights Law Review, Vol. 34, Summer 2003 Terry Smith Fordham University - School of Law Abstract:
      The racial gap . . . can only be closed by recognizing it, and by recognizing why it exists. That will not come to pass as long as we insist on dividing people into different camps and then swearing that differences don't count or that repeated blows to the soul shouldn't be taken seriously. For the truth is that the often hurtful and seemingly trivial encounters of daily existence are in the end what most of life is.
    Adverse Selection in Insurance Markets: An Exaggerated Threat Peter Siegelman Fordham University School of Law Abstract:
      Adverse selection is the process by which insureds who know their own risk of loss take advantage of this information to choose insurance coverage in a way that works to the detriment of their insurer. This paper demonstrates that the views of law and economics scholars studying insurance, as well as policy makers and judges, have been shaped by a fear of adverse selection, a fear that I claim is overstated. After documenting the existence of these fears, I demonstrate that the empirical basis for the importance of adverse selection is limited, the economic theory underlying the phenomenon is not robust, and that there are alternative plausible theories of insureds' behavior that lead to startlingly different results. Adverse selection does sometimes occur, but it has cast too large a shadow on insurance law and regulation.
    Is Land Special? The Unjustified Preference for Real Property in Regulatory Takings Law Eduardo Penalver Fordham University - School of Law Abstract:
      In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court, by limiting the scope of its new per se rule to real property, made clear that it viewed property in land as entitled to a higher degree of protection against regulatory takings than other forms of property. In so doing, it made explicit what had been an implicit favoritism towards real property in the modern law of regulatory takings. The Court gave two reasons in Lucas for its favoritism towards land: the historical treatment of land in the American legal tradition and the expectations of property owners themselves. Neither of these explanations, however, can carry the weight of the Supreme Court's distinction. Nor can the Court turn to normative theory in support of its position. Libertarianism, utilitarian theory, personhood theory, public choice theory, and natural law theory, which together constitute a comprehensive cross-section of the normative accounts of property and takings law, all fail to support a categorical distinction between real and personal property in the regulatory takings context. Because favoritism towards land within regulatory takings law is unjustified, the Lucas doctrine (and, indeed, regulatory takings doctrine as a whole) should apply equally to real and personal property or not at all. The Court's own apparent discomfort with the implications of applying Lucas's per se rule in the context of personal property suggests problems with the Lucas rule itself. And, to the extent that the modern expansion of regulatory takings law has been made more palatable by its artificially narrow focus on land, the unjustified nature of that narrow focus may be a reason for rethinking that expansion.

Thursday, August 28, 2003
My Dinner with Dennis
    Earlier Today As you know, I'm blogging from the annual meeting of the American Political Science Association in Philadelphia. The meeting is, of course, mostly political scientist, but as is usually the case, I've run into quite a collection of philosophers, law professors, and others. I've already blogged about the panel on just-war theory that I attended earlier today. But I wanted to briefly comment on a few other odds and ends. This morning I went over to the National Constitution Center--the very model of a modern multimedia museum. Very well done . . . but somewhat of a disappointment, because the exhibition really focuses NOT ON THE CONSTITUTION but on the history of the American people. For example, the high-tech multimedia film combined with a live narrator that starts the exhibit hardly mentions any of the substance of the constitution AT ALL. The preamble is read, but not a word about Article I, II, or III. No mention of James Madison. Not a word about Marbury v. Madison--or any other case. Nothing on the any of the specific provisions of the Bill of Rights or the Reconstruction Amendments.
    Redemption But the Center is redeemed by the final exhibit, a wonderful set of life-sized statues of the signers of the Constitution. They are very well executed, and if you know their writings and speeches, they almost come to life. I was charmed by Madison, with his kind and scholarly face, and a bit put off by Hamilton, who was something of a dandy. Highly recommended.
    And then . . . I almost always have great fun at academic gatherings. As you can probably guess, I love to go to the papers. Sometimes they are terrible, other times dull, but I almost always find panels that are very interesting. There are several at this year's APSA. But everyone knows that the real reason to go to an academic conference is for the conversations in the hall and the dinners with colleagues. I was very fortunate to be included in a small gathering hosted by the Dennis Patterson, the philosopher/academic lawyer from Rutgers Camden (Law) and Rutgers New Brunswick (Philosophy). Patterson is an extraordinary legal scholar. If you want an absolutely a treat try his Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. Pa. L. Rev. 335 (1988). Or even better, his book, Law and Truth, (Oxford University Press 1996). Dennis considers himself a post-modernist--a view against which I have rather powerful prejudices, but Dennis does it with real persuasive power and analytic rigor. The dinner and the conversation were a real delight.
    Good night from Philadelphia!

Gardbaum on the Constitution in the Private Sphere Stephen Gardbaum (UCLA) has posted The "Horizontal Effect" of Constitutional Rights on SSRN. Here is the abstract:
    This article proposes a rethinking of the U.S. position on the reach of constitutional rights into the private sphere, both in domestic and comparative terms. This issue is standardly deemed resolved by the state action doctrine: with one exception, constitutional rights bind only governmental and not private actors. This, however, provides only a partial answer to the general issue for the fact that private actors are not bound by constitutional rights is consistent with various different positions on the extent to which such rights govern their legal relations with one another, and thereby impact what they can lawfully be permitted or required to do. The U.S. answer to this important, second dimension of the scope of individual rights is to be found not in the interpretive labyrinths of the Fourteenth Amendment's state action requirement but more simply and straightforwardly in the Supremacy Clause, which mandates that all law, including private law, common law, and the law relied on in litigation between private actors, is directly, fully, and equally subject to the Constitution. Accordingly, there should be no separate threshold issue of "state action" when the constitutionality of any law - private or public - is challenged, the only genuine issue is the substantive one of whether that law violates the Constitution. This full answer does not render private actors bound by the Constitution but it does mean that in governing their legal relations with one another, constitutional rights have significant impact upon them - limiting which of their interests, preferences, and choices may be protected by law. Comparatively, this position is in fact quite radical and belies the conventional understanding of the United States as creating a rigid public-private distinction in constitutional law. Indeed, in this respect, constitutional rights have structurally greater impact on private actors here than in countries such as Germany and Canada, long thought to be more "horizontal" in approach than the "purely vertical" United States. This insight provides the basis for a revised and clarified spectrum of possible positions on vertical and horizontal effect in comparative constitutional law. The article concludes by analyzing the substantive issue on a comparative basis to assess the constitutionality of various actual and hypothetical laws touching on private race and sex discrimination, and regulating speech between such private actors as employers and employees. The upshot is that the actual impact of constitutional rights on private actors in the United States is not fixed, as the state action axiom suggests, but will vary with changes in their substantive interpretation. For example, a change in the disparate impact rule under the Equal Protection Clause would not merely have significant effects on tax, regulatory and other public laws but would also substantially increase the Clause's impact on private actors. This, finally, suggests the deep interconnection between the structural issue of scope and the substantive issue of the content of constitutional rights.
Gardbaum's paper is forthcoming in the Michigan Law Review.

Blogging from Philadelphia: Just War Theory Revisited
    I am writing this post in Room 201B of the Philadelphia Convention Center on Thursday afternoon. The occasion is the annual meeting of the American Political Science Association. The session is titled “Roundtable on Just War Theory: Walzer’s Just and Unjust Wars revisited.” Dick Arneson put together an excellent panel, drawing an audience of luminaries. Bruce Ackerman is sitting in the row ahead of me, Randy Barnett is to my right and William Galston is just a another yard or two away.
    The first speaker is David Estlund (Brown, Philosophy):
      Estlund’s question is an interesting one. What should a soldier do if she finds herself in an unjust war? The soldier isn’t being asked to commit atrocities, and has volunteered to be in the armed forces. This topic is a fascinating one—I blogged on a paper on this topic several months ago. Estlund’s suggested an honest mistake standard. Analogizing to a police officer participating in a raid, Estlund suggested that an officer can and should participate in a drug raid he knows to be wrong if it is based on an honest mistake by his superiors, but not if the raid was motivated badly, e.g. for reasons of revenge or corruption. This analogy struck me as particularly inapt. Why? Because in the badly-motivated drug raid case, the officer, by participating in the raid, is acting contrary to lawful authority. She is committing a crime, knowingly so. In the case of an ordinary soldier fighting an unjust war, this is simply not the case. In is interesting to think about how the service academies handle this question—one that is of more than theoretical interest to future military officers.
    The next speaker is David Luban (Georgetown):
      Luban’s topic is the justification for the war in Iraq, and in particular, he is concerned on the preventive war argument. This rationale, as everyone agrees, is a revision (probably a significant revision) of the traditional theory of legitimate wars of self-defense. Preventive war, Luban argues, is like preemptive war involving an imminent threat, but without the imminence. Any interesting section of Luban’s paper addressed the concepts of sovereignty and self-determination, which play an important role in Walzer’s argument for the traditional idea that preventive wars are not permitted. Walzer argued that the right of sovereign nations not to be invaded derives from an individual right to self-determination. But Walzer’s idea of self-determination is very, very thin. No democracy is required—mere independence from foreign domination is sufficient. But if that is what self-determination means, then it is not clear that there is any important individual right to self-determination. Luban, however, believes that there is another justification for the international-law prohibition on wars of aggression—simply that war is very, very bad. But this argument does not really apply to the preventive wars against rogue states that pose a large threat. Luban uses Hitler as an example. But, Luban, argues, a very general doctrine of preventive war would lead to too many wars and wars that are too routine. As I listen to Luban’s argument, it seems to be me that he is making a classic slippery slope argument—not necessarily a flaw, but a potential problem to be noted. Luban argues this implies that there is a need for a very narrow doctrine of preventing war—perhaps limited to rogue states with weapons of mass destruction. Luban’s presentation was extraordinarily lucid—typical for Luban, whose writing and speaking is always engaging.
    After Luban, the next up is Jeremy Waldron (Columbia, Law and Philosophy):
      Waldron is interested in a question that I believe is absolutely crucial to this topic—the fact of moral disagreement about the criteria by which wars can be sorted into the just and unjust. Waldron notes that Walzer recognizes the fact of disagreement and debate about what constitutes a just war. Of course, Waldron says, disagreement does not prevent us from theorizing about just war theory, but, Waldron insists, we should not lose sight of the disagreement. Waldron thinks that Walzer’s work is weak, because he imagines that there is a “We” who can argue and reach agreement, and that “We” (as Walzer discussed it) was something like, “We in the United States.” Walzer had in mind disagreements within the U.S. about the justice of the Vietnam war, when he said there is a “we,” who disagree. But disagreements about just wars often cross vast national and cultural divides. Disagreements about just wars frequently are between different moral communities, who have radical disagreements. And now Waldron turns to Kant. Noting that Walzer never mentions Kant in his book, and then presenting Kant’s view—which was in opposition to just-war theory. Kant was skeptical about just war theory, in part because there was no authority to enforce a rule against unjust wars, but also because of the fact of a lack of a common moral framework. Waldron’s final topic was “neutrality,” and in particular the duties of neutral states, which were asymmetrical between just and unjust parties to an unjust war—leading to the obvious problem that the parties to the war are unlikely to agree on who is in the wrong, creating grave difficulties for neutral parties. In international law, this problem led to the emergence of the view that neutral parties were not obliged to take a stand on who was the unjust party. And this view was rejected by the United States in World War II, when we took the view that despite our neutrality we were obliged to help Great Britain against an unjust aggressor.
    After Waldron, the final speaker is Richard Arneson (U.C. San Diego)—whose work I have long admired:
      Arneson begins with the issue of noncombatant immunity, the flouting of which is part of our definition of terrorism. Arneson’s first move is to question whether the fire bombing of German cities really violates noncombatant immunity. Under the traditional theory, it is permissible to bomb munitions factories. Arneson then asks why one cannot bomb the factory workers when they are at home. After all, one can bomb combatants when they are not in combat. Arneson focuses on other ways that noncombatants can become legitimate targets—if they are where they have no right to be, for example. Arneson also touches on Estlund’s topic, noting that the usual view is that soldiers are excused from guilt for fighting in an just war, but Arneson is skeptical of this view, arguing that this view does not accord with our usual view, at least insofar as ignorance or coercion is the basis for the excuse. My reaction to Arneson’s argument here was that he failed to focus on the crucial issue—authority. For example, Arneson argues that he would not be excused from killing his neighbors just because his normally trustworthy wife told him to do so. But this case is not like the case of a soldier in a war, precisely because it differs with respect to authority. Arneson’s wife has no authority to order executions, but officers do have authority to order soldiers into battle. Authority is the key here—not excusable ignorance or coercion.
    All in all, a marvelous session!

Lawson on Wolfenstein & Workshops At Boston University's workshop series today, Gary Lawson, presents "Workshops and Wolfenstein." Lawson's is doing a metaworkshop, i.e. a law school workshop which is about law school workshops. Here is a taste of his very sensible paper:
    The internal workshop is a familiar feature of the law school environment. Such workshops serve both social and intellectual functions within the faculty community. Socially, they are among the few occasions during which large numbers of faculty members assemble in the same room to do anything other than argue about appointments matters or the academic calendar. They are also often the primary, or even the only, way in which faculty members learn what their colleagues in different fields are doing. Intellectually, workshops are intended to improve the work product of the presenters and to sharpen or expand the thinking of the audience members. In practice, however, workshops are often an intellectual disappointment. That is not surprising. There is a powerful tension between the social and intellectual functions of workshops: the features of workshops that make them useful social events often prevent them from being useful intellectual events, and vice versa. And in workshops as they currently exist at every American law school of which I am aware, the social function tends to dominate at the expense of the intellectual.
I would urge you to read Lawson's paper, but sadly it is not available online. He makes a number of very telling points, both critical and constructive about the current state of the workshop. I would like to add one observation: the posting of workshop papers online is beginning to change the workshop dynamic. Lawson sees the social function of workshops as a cause of intellectual disappointment. Perhaps. But I would emphasize a different cause. Some workhsop topics elicit broad interest. Everyone has some interest in the big public law topics. But if you don't work in those areas, you may be disappointed by the lack of intellectual depth your paper generates. (Of course, this all varies hugely from faculty to faculty.) But a workshop accompanied by an online version of the paper, plus some publicity, can change things considerably. I've gotten comments from literally dozens of outside scholars about Internet accessible papers & I think this is becoming increasingly more common. Of course, this raises another question: why hold the live event? Perhaps, in part, because of the social and educative functions that Lawson identifies. One of Lawson's best suggestions is for more early stage workshops. Bravo! And let me add, that it is possible to put together a very good short paper that presents the core of an article lenghth idea in a form that will permit online interaction. Having read dozens (egad, maybe hundreds) of SSRN papers over the last year or so, one trend that I see is the 20 page "idea" paper--the online equivalent of the early stage workshop. Perhaps Gary will put his paper up for us!

Conference Announcement: The State of Play: Law, Games, and Virtual Worlds
    The State of Play: Law, Games, and Virtual Worlds November 13-15, 2003 A Conference Sponsored By Institute for Information Law and Policy at New York Law School and Information Society Project at Yale Law School to be held at New York Law School in New York City From the international Olympics to football pools, communities, both public and private cohere through games. All cultures play. Games reflect our fantasies and reinforce our values. We spend much of our time playing games that immerse us in the world and values of a game designer and inculcate the norms of imagined cultures. With the advent of digital technologies, some games have become multimedia but often solitary and isolating experiences of play, the refuge of "anti-social geeks.” Other computer games have evolved into networked games where any number of participants can play together within the framework and rules of the game. Even those who rarely play multimedia computer games can play networked versions of bridge, cards and other traditional games in cyberspace. Now, with the launch of massive multiplayer on-line gaming, electronic games have gained an even broader reach. A vast number of participants can play together in a game space and the rules of play are dynamic and evolving. The new environments of electronic games, especially those that are massively multiplayer, are not just gamespaces; they are cultures unto themselves. Like real societies, they grow and evolve as their members create rules and norms. Some norms in games are cooperative and democratic, others are dictatorial and dystopic. This interdisciplinary conference will examine the state of play today in an effort to understand the phenomenon of digital games and the virtual worlds they create and to discuss the complex social, psychological, and legal issues to which they give rise. To submit a proposal or for more information, please e-mail: Mr. Chun Li,, Program Director of the Institute for Information Law at New York Law School. Registration and schedule available at

Wednesday, August 27, 2003
Buck and Tusnet Stuart Buck comments on a recent paper by Mark Tushnet, here.

Barnett on Constitutional Theory & More on Posner's Review of Farber Over at the Conspiracy, Randy Barnett blogs on the value of a written constitution and in defense of originalism, here and here. And over at Discriminations, John Rosenberg responds to Posner's review of Farber's book on Lincoln's constitutiton.

Two from Tushnet Superstar constitutional theorist Mark Tushnet (Georgetown) has just posted two new papers on SSRN. Here is the low down:
    Transnational/Domestic Constitutional Law, forthcoming in the Loyola of Los Angeles Law Review:
      The Supreme Court's references to non-U.S. law in deciding constitutional cases, new treaty institutions associated with NAFTA and the WTO, and recent advocacy urging that U.S. courts should make non-U.S. law a rule of decision more often than they have - all these have generated a new critical literature arguing that these developments threaten domestic sovereignty and self-governance. This Essay attempts to describe precisely what the objections are, distinguishing between discrete objections focusing on particular constitutional problems and sovereignty-based objections. I argue that the discrete objections are not terribly strong and that the sovereignty-based ones re-state familiar arguments about judicial activism. The context is new, but the nature of the arguments is not. I conclude by suggesting that the critical literature is a form of interest-group advocacy of precisely the same kind that the literature criticizes as undermining domestic sovereignty and self-governance - which suggests that neither form of advocacy is really troubling.
    Clarence Thomas's Black Nationalism, forthcoming in the Howard Law Journal:
      This Essay examines Clarence Thomas's opinions in education cases, extracting from them themes of black nationalism and strict individualism. These themes are in some tension with each other. I use a similar tension exhibited in two controversies over editorials W.E.B. Du Bois wrote for the NAACP magazine The Crisis as a way of exploring whether the tension can be reconciled. I argue that much of the tension can be resolved by treating black nationalism either as a choice made by African Americans as individuals or as a second-best strategy for strengthening the black community when its members lack effective choice in education. Some tension in Justice Thomas's opinions remains, however, and I suggest that the residual tension derives from Justice Thomas's personal experience in being regarded by dominant legal elites as unqualified for the position he holds.
My very first cite checking assignment as a second year student at Harvard was work on Tushnet's famous and truly excellent article, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harvard Law Review 781 (1983), and my reaction to it has been a shaping experience in the development of my own approach to constitutional theory.

New Papers on the Net Here are the new papers from SSRN:
    The Origins of Felony Jury Sentencing In The United States Chicago-Kent Law Review, Vol. 74, 2003 Nancy King Vanderbilt University School of Law Abstract:
      This article traces the development of jury sentencing in non-capital felony cases in Virginia and Kentucky, as well as the rejection of jury sentencing in Pennsylvania, in the late 18th Century. Several of the explanations that modern commentators on jury sentencing have offered for the adoption of jury sentencing are questioned. In Virginia, where party politics may have affected the choice of jury over judge, pockets of judicial sentencing power remained, inconsistent with a strong preference for the democratic judgment of a jury in punishment over the professional decisions of the judiciary. Kentucky's experience suggests that settlement patterns and legal heritage, as well as distrust of judges, were prime determinants of that state's sentencing policy. An appendix listing early sentencing law for several states is included.
    September 11 in History: A Watershed Moment? Introduction SEPTEMBER 11 IN HISTORY: A WATERSHED MOMENT, Mary L. Dudziak, ed., Duke University Press, Forthcoming Mary Dudziak University of Southern California Law School Abstract:
      Within hours after the collapse of the Twin Towers, the idea that the September 11 attacks had "changed everything" permeated American popular and political discussion. As the Introduction to this edited volume argues, in the period since September 11, the notion that 9/11 changed the nation and the world has been used to justify profound changes in U.S. law, public policy and foreign relations. Bringing together leading scholars of history, law, literature, and Islam, September 11 in History asks whether the attacks and their aftermath truly marked a transition in U.S. and world history or whether they are best understood as part of pre-existing historical trajectories. From a variety of perspectives, the contributors to this collection scrutinize claims about September 11. Essays range from an analysis of terms like Ground Zero, Homeland, and "the Axis of Evil" to an argument that the U.S. naval base at Guantanamo Bay has become a site for acting out a repressed imperial history. Examining the effect of the attacks on Islamic self-identity, one contributor argues that Osama bin Laden enacted an interpretation of Islam on September 11 and asserts that progressive Muslims must respond to it. Other essays by legal scholars focus on citizenship and the deployment of Orientalist tropes in categorizations of those "who look Middle Eastern," the blurring of domestic and international law evident in a number of legal developments including the use of military tribunals to prosecute suspected terrorists, the question of whether September 11 should cause a paradigm shift in international law, and the justifications for and consequences of American unilateralism. This collection ultimately reveals that everything did not change on September 11, 2001, but that some bedrocks of democratic legitimacy have been significantly eroded by claims that it did. Contributors include: Khaled Abou el Fadl, UCLA Law School; Mary L. Dudziak, USC Law School; Christopher L. Eisgruber, Woodrow Wilson School, Princeton University; Laurence R. Helfer, Loyola Law School; Sherman A. Jackson, Department of Near Eastern Studies, University of Michigan; Amy B. Kaplan, Department of English, University of Pennsylvania; Elaine Tyler May, Departments of History and American Studies, University of Minnesota; Lawrence G. Sager, University of Texas Law School; Ruti G. Teitel, New York Law School; Leti Volpp; American University Law School; Marilyn B. Young, Department of History, New York University.
    Partial Cross Ownership and Tacit Collusion David Gilo and Yossi Spiegel Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Faculty of Management Abstract:
      This paper shows how competing firms can facilitate tacit collusion by making passive investments in rivals. In general, the incentives of firms to collude depend in a complex way on the whole set of partial cross ownership (PCO) in the industry. We show that when firms are identical, only multilateral PCO may (but need not) facilitate tacit collusion. A firm's controller can facilitate tacit collusion further by investing directly in rival firms and by diluting his stake in his own firm. In the presence of cost asymmetries, even unilateral PCO by an efficient firm in a less efficient rival can facilitate tacit collusion.
    German and U.S. Telecommunications Privacy Law: Legal Regulation of Domestic Law Enforcement Surveillance Hastings Law Journal, Vol. 54, p. 751 Paul Schwartz Brooklyn Law School Abstract:
      The legal systems of Germany and the United States contain detailed rules that regulate the surveillance of telecommunications by domestic law enforcement agencies. An initial question about this surveillance concerns the relative levels of such activity in Germany and the United States. This Article demonstrates, however, that the available statistics do not permit the drawing of conclusions about the relative amount of surveillance in the two countries. Any comparison based on these data sets proves to be illusory - the official statistics in Germany and the U.S. measure different phenomenon. Despite an absence of a basis for an empirical exploration of relative levels of telecommunications surveillance in Germany and the U.S., it is possible to compare the applicable legal regulations in the two countries. This Article examines both constitutional and statutory regulations. It finds that the U.S. Supreme Court has developed a restrictive vision of the Fourth Amendment that extends its protections only to telecommunications content, but not telecommunications attributes. In contrast, the German Federal Constitutional Court has interpreted Article 10 of the Basic Law, the postwar German constitution, as protecting not only telecommunications content but also telecommunications attributes. This Article also examines the statutory law that governs telecommunications surveillance in Germany and the U.S. It evaluates six categories: (1) legal protection for telecommunications information; (2) legal protection for connection data; (3) legal protection for stored data; (4) legal requirements for data retention or data erasure; (5) legal protection for contents of telecommunications; and (6) the nature of available remedies. In a final section, this Article examines three possible "X" factors, beyond the surveillance regulations expressed in legal regulations, that may affect law enforcement behavior in carrying out telecommunications surveillance in the two countries.
    Myths of Voluntary Compliance: Lessons from the StarLink Corn Fiasco William & Mary Environmental Law & Policy Review, Vol. 27, p. 591 Rebecca Bratspies University of Idaho Abstract:
      On September 18, 2000, a coalition of consumer and environmental groups detected DNA fragments from StarLink corn in Taco Bell taco shells sold in grocery stores. StarLink corn, a genetically modified ("GM") variety of corn, had only been approved for use as animal feed, and not for human consumption. Overnight, StarLink became a "Frankenfood" posterchild-the incarnation of GM critics' worst nightmares. By November of 2000, the FDA exercised its enforcement authority to recall nearly three hundred types of adulterated snack chips, corn flour, and other corn foods. The ensuing crisis paralyzed an entire sector of American agriculture and food production, and badly shook consumer confidence. One company, with one GM crop, managed to contaminate food for millions of households and brought an international commodities market to a standstill. This Article explores the StarLink crisis in some detail to understand how things went so disastrously awry. After a detailed analysis of the regulatory approval process that vetted StarLink corn, the paper uses StarLink corn to explore the structural flaws in this process and to draw lessons about how market forces can support or undercut regulatory regimes. Ultimately, the paper suggests that the deficiencies highlighted by the StarLink fiasco are part of a broader ideological struggle over the proper role of government in the marketplace. Claiming that StarLink corn experience undermined a cornerstone assumption of the United States' regulatory strategy: that voluntary self-policing can be a viable, long-term strategy for managing this revolution in agriculture, the paper proposes a new regulatory approach for GM crops, grounded in both science and in the realities of a market economy. This new approach is aimed at providing the regulatory oversight needed to ensure public health and safety, while still permitting an exploration of biotechnology's promise.
    Irrelevant Internalities, Irrelevant Externalities, and Irrelevant Anxieties David Haddock Northwestern University - School of Law and Department of Economics Abstract:
      Due to the high transaction cost that would be necessary for large numbers of people to negotiate with each other, even those who are sanguine about private markets become reserved when externalities affect large populations. The distinction between private and societal interest is well understood for pecuniary externalities, but neglect of Buchanan and Stubblebine's article Externality has left the same distinction widely unrecognized for non-pecuniary ones. If only a few parties on either side experience a relevant externality within Buchanan and Stubblebine's relevant/irrelevant distinction, private interactions can appropriately internalize costs and benefits across the entire population. Regardless of the perceptiveness of legal and cultural institutions in placing entitlements, and regardless of the level of transaction cost among the universe of the affected, a surprising number of externalities will readily fix themselves. The desirability of corrective intervention is much too easily conceded.

Tuesday, August 26, 2003
Posner Reviews Lincolon's Constitution Richard Posner's review of Daniel Farber's book, Lincoln's Constitution is available on the New York Times website. Here is a taste:
    Those who think it would have been disastrous had the secession succeeded will be inclined to believe that Lincoln was right to suspend habeas corpus. Was he legally right? That is a different question. One answer is that whatever measures are necessary to save the nation from suicide are, if not compelled, at least permitted by the Constitution, whatever the text, history or precedents might seem to imply. There are no limits to lawyers' ingenuity, and Farber is able to generate plausible arguments for the constitutionality of most of Lincoln's acts. With a little more effort he could defend all of them as lawful. For example, Farber endorses a particularly facile ''legal'' justification for Lincoln's suspension of habeas corpus: that since the president can use deadly force against rebels, he should be allowed to detain them indefinitely. But habeas corpus enables a court to determine whether a detained person is a rebel. That is why we try criminals rather than lynch them. (Moreover, Farber slides too easily from the question of whether Lincoln was authorized to suspend habeas corpus to whether he was authorized to flout Chief Justice Roger Taney's order granting habeas corpus, as he did. Officials are obliged to obey judicial orders even when erroneous.) There is a pragmatic argument against this approach, an argument for saying that Lincoln was right to do what he did -- in fact had no choice -- but that what he did violated the Constitution. In this view, it would have been a kind of treason had Lincoln been scrupulous in observing the limitations that the Constitution placed on his authority.
And I think that there is something to Posner's position, but it raises some very interesting questions. In particular, was Lincoln's action unconstitutonal but nonetheless legally valid. Now, that would be an interesting argument!

Volokh on Religion in the Public Square Eugene Volokh had a marvelous post yesterday on the role of religious reasons in public policy. Highly recommended. Volokh is trying to get at an interesting and important distinction. His argument begins with an appealing intuition--that we should tolerate those who violate religious laws for religious reasons. Volokh uses religious toleration of Hindus as an example. Hindu religious practice violates is contrary to a variety of norms deeply embedded in the Judeo-Christian tradition, but very few Americans would support legal prohibition of these practices. But some Americans who would oppose criminalization of Hindu religious practice support criminalization of homosexuality--on the basis of religious commandments that seem relevantly similar to those which would seemingly support criminalization of Hindu religious practices. How can we explain this seeming anomaly? Volokh argues that our deeply held convictions about religious toleration for Hindus should lead to tolerate homosexuality. I urge you to read Eugene's excellent post, and I would suggest the following wrinkles and complexities:
    --Historical Context. When thinking about religious toleration, it is always edifying to remember that religious toleration emerged in a particular historical context in the West. Western culture did not always value religious toleration. Toleration (and the liberal political tradition) emerged after the Wars of Religion in the Sixteenth Century. It was only at the point in our history that it became clear that the fact of pluralism had become a permanent feature of European cultures. The value of toleration emerged from within religious traditions. That is, Protestants and Catholics reinterpreted their own religious traditions and found within them the resources to support the value of toleration. Crucial to this process was the doctrine of free faith, the individual must come to faith through individual choice rather than coercion. Deeply religious adherents of various faiths now believe that their own deep religious beliefs support the toleration.
    --The Role of Religious Belief in Public Policy And here is another wrinkle. For many persons of deep religious faith, there is no line of separation between religious belief and beliefs about political morality. It is all part of a whole, and it is religious through and through. Of course, this varies from faith to faith and individual to individual. Some deeply religious individuals do separate their political beliefs from their religious beliefs, but many do not. If you believe in a comprehensive religious theory of the right and the good, then your stand on every public policy issue is religious. You believe that murder, theft, breaking contracts, etc., are all subject to legal sanction for reasons that rest on deep religious foundations.
    --Contemporary Pluralism in the United States. But of course, in a modern democratic, pluralist, society, there are many different religions and religious views. In the United States, this pluralism has evolved over time. In the colonial period, religious pluralism was seen in terms of Catholics, Protestants, and Jews. (The faiths that slaves brought with them from Africa and that Native Americans already had were ignored by those who wielded power.) Today, the national polity is much more inclusive, with large numbers of Moslems, Buddhists, Hindus, Sikhs, Shintoists, Taoists, and adherents of dozens (or hundreds) of other faiths. And many Americans have deep belief systems that are not easily categorized as religious, not to mention agnostics, atheists, and those who simply do not think about these issues. The pluralism that characterizes contemporary American society is much broader and deeper than the kind of pluralism that emerged in Europe after the Wars of Religion and then migrated with religious dissidents to North America.
    --Public Reason. In such a radically pluralistic society, there is a problem with basing public policy on religious reasons. In the colonial period, there was pluralism, but that pluralism was located in a Judeo-Christian context, in which the majority shared a set of religious texts (the Christian bible, which differed marginally from sect to sect, and the Old Testament which was shared (again with variations) by Jews as well). In this context, the ten commandments, for example, could be taken as common ground. (So engraving them on a courthouse wall would not be seen as a threat to religious liberty or the value of toleration.) "Public reason," the reason shared by all citizens, could include not just common sense, the shared lessons of history, and science--public reason could also include a common religious heritage. But today, this is not the case. If public policy is to be supported by public reason, then explicitly religious views are problematic. Even the most general and abstract religious propositions are controversial, once the relevant group includes Hindus, Buddhists, and atheists.
    --An Ideal of Public Reason. So as a matter of political morality, a pluralist society needs an ideal of public reason. An ideal of public reason is not a law. An ideal of public reason is a standard of political morality. It helps to define an ideal of good citizenship, of what it means to be a good citizen in civic solidarity with fellow citizens who have radically different ideas about God and good. For us, for citizens of a pluralist democracy, the ideal of public reason is likely to require that public policies be justified (or at a minimum, justifiable) on the basis of public reasons. My own preference is what might be called an inclusive ideal of public reason. "Inclusive" in the sense that it says to citizens: bring all your reasons into the public square, both the deep reasons from your religious or philosophical beliefs about ultimate questions, and you shallow reasons--the values (like toleration, liberty, and equality) that are part of our public political culture.
And this brings me back round to Eugene Volokh's argument. Because I am not sure that Eugene's argument works:
    First, I think that Eugene's argument elides an important distinction. Those who oppose toleration of homosexuality on religious grounds do not believe that this issue is relevantly similar to religious toleration. Why not? Because religious liberty is supported by religious reasons. From within a fundamentalist faith, one has the resources to believe that the state should not interfere with religious practice. Many faiths also have resources from within to support a similar legal recognition of pluralism in the case of homosexuals, but not all. From the fact that I believe that the state should not enforce the Ten Commandments insofar as they regulate religious practice, it does not follow that I must believe that the state should not enforce other provisions of the Commandments. (Think murder.)
    Second, I think that Eugene's argument goes astray, because it implicitly assumes that persons of deep faith make a distinction between religious and secular reasons for public policy. Some do. Some don't. And for those who don't, Eugene's argument does not work. Because if you believe that all public policy must ultimately be justified on religious grounds, then it follows that toleration for homosexuality must be given a religious foundation.
But despite these quibbles, I think that I agree with the ultimate thrust of Eugene's argument, which I would put just a bit differently. What I would say is that even persons of deep religious faith, have good reasons to affirm an inclusive ideal of public reason. Of course, working out the details of the argument requires that we get inside the perspectives of various faiths, but we can still see the intuitive core of the argument: an inclusive ideal of public reason is supported by same religious values that support toleration. If you believe in the inherent worth and dignity of the individual and if you believe that religious toleration is a very great political value, then you have the premises from which to build an inclusive ideal of public reason. Here is a simpler version: if you would not want to live in a society where law was justified based on the sectarian premises of a faith that is alien to your own, then you have good reason to affirm the principle that law should be justified on the basis of public reasons--reasons accessible to reasonable persons who share common political values but who differ about deep questions about God and good. And that is why I think that those who advocate the criminalization of homosexuality on the basis of sectarian religious reasons violate an important norm of political morality.

20 Questions Crescat Sententia's latest installment of their interview feature is up. This week the legal theorist Randy Barnett answers 20 questions.

Call for Papers: The Jurisprudence of Justice Ginsburg
    CALL FOR PAPERS: THE JURISPRUDENCE OF JUSTICE GINSBURG To commemorate the visit of United State Supreme Court Justice Ruth Bader Ginsburg to City University of New York (CUNY) School of Law on March 11, 2004, the New York City Law Review plans to publish a special issue focusing on the work and jurisprudence of Justice Ginsburg. The New York City Law Review invites all authors to submit for publication original papers related to Justice Ginsburg. Paper topics may range from Justice Ginsburg’s own gender discrimination work to her majority and dissenting opinions written for the courts on which she has served. We welcome articles from law professors, practicing attorneys, judges and other legal professionals, as well as law students. Contributions should reflect the mission of the New York City Law Review and CUNY Law School: public interest law in the service of human needs. Contributors are encouraged to submit abstracts. Abstracts must be received by September 30, 2003, and should be submitted by via e-mail (in Word format) to Papers must be submitted by December 15, 2003. Papers may be submitted electronically (in Word format) to or on disk via mail to New York City Law Review, Attn: Symposium Editor, CUNY Law School, 65-21 Main Street, Flushing, NY 11367. Anyone wishing to clarify substantive issues relating to the scope of the article should contact Julie Graves, symposium editor, via e-mail at or via telephone at 718-340-4344.

Workshop at Florida State At Florida State, J.B. Ruhl does an internal workshop titled Methodology and the Endangered Species Act.

Monday, August 25, 2003
New Weekend Features Two regular features have been added to Legal Theory Blog. On Saturday, there is the Download of the Week, a recommendation from all the downloadable papers posted from Sunday through Saturday. On Sunday, I will post the Legal Theory Calendar, which will highlight workshops and conferences from the upcoming week. (Yesterday's calendar features workshops at Florida State, Boston University, and the University of Texas.) If you would like your event listed in the calendar or if you can send me information on a workshop/colloquium schedule, please email: lsolum AT sandiego DOT edu.

Constitutional Legitimacy Will Baude of Crescat Sententia and PG of Half the Sins of Mankind have been discussing the topic of constitutional legitimacy. Why should we regard ourselves as bound by a constitution written by the dead hands of generations long past? This question is particularly pressing for constitutional theories that incorporate originalist theories of constitutional interpretation, because such theories privilege the intentions or understandings of the generation that ratified the Constitution (or provisions thereof). Contemporary ratification theories such as that advanced by Justice Brennan (and in a more sophisticated form by Jack Balkin and Sandy Levinson) avoid this problem while incurring others. So what makes a constitution legitimate? Before answering let's get this bit straight:
    Constitutional legitimacy has two dimensions, descriptive and normative. Descriptive constitutional legitimacy is de facto acceptance of the constitution as legitimate. Normative constitutional legitimacy is a concept of political morality.
    One more distinction: legitimacy and justice (or overall rightness) are distinct. A constitution that is just may be illegitimate and vice versa--depending on one's theory of legitimacy and the facts.
So, how can an originalist constitution be regarded as legitimate given the dead-hand problem? That's the subject of a really big book, not even a law review article, much less a blog post, but here are some blog bites:
    --Popular sovereignty. The core idea here is that the constitution has been ratified by "We the People," whereas ordinary legislation is promulgated by our mere agents, the legislators. In contemporary American constitutional theory, this view is strongly identified with Bruce Ackerman, but it is a classic position in constitutional theory, developed in many different forms by many theorists.
    --Reliability. This view associates constitutional legitimacy with the tendency of the system to produce just outcomes. A reliability theory maintains that a constitutional system if legitimate if it meets a threshold requirement for the likelihood that it will produce just outcomes. In contemporary American constitutional theory, Randy Barnett is associated with this view.
    --Comparative legitimacy. This view maintains that a system with a written constitution is legitimate in comparison with the alternatives. For example, the dead-hand problem may be real, but if the alternative is a dictatorship of unelected judges or unconstrained legislative power, following the original meaning of a written constitution may simply be the least-bad alternative.
And there are many other theories as well. If you are interested in this topic, I recommend Randy Barnett's article, Constitutional Legitimacy (click on the title to go to the download page).

New Papers on the Net Here is today's roundup:
    Matthew Stephenson (Harvard University - Department of Government) posts Court of Public Opinion: Government Accountability and Judicial Independence. Here is the abstract:
      This paper contributes judicial politics literature by analyzing the conditions under which the public's ability to hold the elected government accountable might enable courts to exercise independent authority over policy. Using a model of policy-making in a system characterized by formal separation of powers, judicial dependence on government support, asymmetric information between the voters and the government, and political accountability of the policy branch, I show the conditions under which the public will force the government to cede power to the courts. This formal analysis makes three contributions to the literature. First, the model provides a theoretical justification for, and suggests limits to, the common assumption that disregard for judicial decisions is politically costly for the elected branches. Second, the model suggests a systematic account for a number of empirical observations about judicial politics. Third, the model demonstrates how systems of unified or separated powers can emerge endogenously.
    Mario Bergara (Universidad de la Republica (University of Uruguay) - Department of Economics ), Barak Richman (Duke University - School of Law ) and Pablo Spiller (University of California, Berkeley - Business & Public Policy Group) post Modeling Supreme Court Strategic Decision Making: The Congressional Constraint. Here is the abstract:
      This paper addresses the contradictory results obtained by Segal (1997) and Spiller & Gely (1992) concerning the impact of institutional constraints on the U.S. Supreme Court's decision making. By adapting the Spiller & Gely maximum likelihood model to the Segal dataset, we find support for the hypothesis that the Court adjusts its decisions to presidential and congressional preferences. Data from 1947 to 1992 indicate that the average probability of the Court being constrained has been approximately one-third. Further, we show that the results obtained by Segal are the product of biases introduced by a misspecified econometric model. We also discuss how our estimation highlights the usefulness of Krehbiel's model of legislative decision making.
    Amitai Aviram (George Mason University - School of Law) and Avishalom Tor (Harvard University - John M. Olin Center for Law, Economics, and Business) post Information Sharing in Critical Infrastructure Industries: Understanding the Behavioral and Economic Impediments. Here is the abstract:
      This paper is a specialized version, abbreviated and focused on application to critical infrastructure protection, of our paper titled "Overcoming Impediments to Information Sharing." Impediments to information sharing between firms operating critical infrastructure have been identified as a key security concern in the recently promulgated National Strategy for the Physical Protection of Critical Infrastructures and Key Assets. This paper identifies economic and behavioral impediments to information sharing among rivals in general, and rivals operating critical infrastructure in particular. The paper then assesses conditions affecting the severity of these impediments. Finally, the paper takes first steps in developing a framework that will predict more accurately when private information sharing would be suboptimal and suggest how better to align private information sharing with social optimality.
    Brian Kalt (Michigan State University-Detroit College of Law) posts The Exclusion of Felons from Jury Service, forthcoming in the American University Law Review. Here is the abstract:
      The lifetime exclusion of felons from jury service is the majority rule in the U.S., used in thirty one states and in federal courts. The result is that over 6% of the adult population is excluded, including about 30% of black men. The parallel issue of felon disenfranchisement has drawn considerable scholarly attention, despite its lower, declining, and less racially charged numbers. The racial composition of juries has been widely discussed in the literature as well. By contrast, felon jury service has been almost entirely ignored, despite a mass of legislation and appellate litigation, and despite glaring racial disparities. One can hardly argue that the biggest problem with the American legal system is that our juries do not have enough felons on them. Nevertheless, the question of whether and when felons (principally "ex-felons") should serve as jurors involves several larger issues. This article surveys the current law of felon exclusion and surveys its history. It then surveys and proposes constitutional arguments for and against felon exclusion, and concludes that it is constitutional either to exclude felons from juries, as most jurisdictions do, or to include them, as others do. While this result is fairly clear from current doctrine, it exposes flaws and ambiguities in that doctrine. It also undermines the principal justifications for felon exclusion (protecting the probity of the jury, and eliminating inherently biased jurors). Because both exclusion and inclusion are legal, the remainder of the article considers policy arguments for and against felon exclusion: first, the nature of the jury, and whether felon exclusion is compatible with it; next, a similar analysis regarding the treatment of felons; and finally other, general policy arguments. The discussion concludes with a recommendation that while some felon exclusion may be appropriate, it should be carefully considered and should not be based on inflexible generalizations about crimes, criminals, and trials. Instead, felons who are worthy should have a chance to contend as individuals for a seat on a jury, under the same constraints as everyone else.

Sunday, August 24, 2003
Three by Kaplow Louis Kaplow (Harvard) has three new papers up on SSRN:
    The Value of a Statistical Life and the Coefficient of Relative Risk Aversion. Here is the abstract:
      Individuals' risk preferences are estimated and employed in a variety of settings, notably including choices in financial, labor, and product markets. Recent work, especially in financial economics, provides estimates of individuals' coefficients of relative risk aversion (CRRA's) in excess of one, and often significantly higher. However, it can be shown that high CRAA's imply equally high values for the income elasticity of the value of a statistical life. Yet estimates of this elasticity, derived from labor and product markets, are in the range of 0.5 to 0.6. Furthermore, it turns out that even a CRRA below one is difficult to reconcile with these elasticity estimates. Thus, there appears to be an important (additional) anomaly involving individuals' risk-taking behavior in different market settings.
    Public Goods and the Distribution of Income. Here is the abstract:
      This article addresses conceptual issues concerning the distributive incidence of public goods. Solutions depend on the specific purposes for asking the question of distributive incidence - notably, assessing the extent to which various public goods should be provided, determining how the provision of public goods affects the desirability of income redistribution, and providing a meaningful description of the distribution of well-being. In the course of the analysis, a simple and intuitive version of the benefit principle of taxation (qualitatively different from those commonly advanced in pertinent literatures) is presented, and some of the problems confronting empirical attempts to measure the distributive incidence of public goods are resolved.
    Taxation and Redistribution: Some Clarifications. Here is the abstract:
      This essay revisits certain basic features of tax systems as they relate to redistribution. It focuses on how the actual differences between proportional and graduated taxes with regard to redistribution diverge in important ways from what many believe or implicitly assume. The analysis seeks to clarify tax policy debates, including those surrounding classic treatments of progressivity and contemporary flat tax proposals.

The Legal Theory Calendar I am experimenting with some weekend features for Legal Theory Blog. Yesterday, I put up the first Download of the Week. Today, I am trying out Legal Theory Calendar. As the academic year is gearing up, I will be posting again on workshops, conferences, and other events of interest to the readers of this blog. My custom has been to post on an event the morning of the day it happens, but starting this week, I will also post a Sunday Calendar, with a summary of the events for the upcoming week. Here is the first installment:
    Tuesday, August 26 Thursday, August 28 Friday, August 29
      Workshop at the University of Texas Today at the University of Texas law faculty workshop series, Steve Goode does an internal workshop titled "Meeting of the Committe of the Whole Person."

Saturday, August 23, 2003
Download of the Week Frequent blogsurfers know that Saturday is traditionally the slowest day in the blogosphere. Over the course of the next few weeks, I'll be experimenting with some regular Saturday features. The first of these is the Download of the Week, my top recommendation of a downloadable paper of all those mentioned on Legal Theory Blog from Sunday through Saturday morning. Here goes:Happy downloading. Tomorrow, I will introduce a new Sunday feature.

Judge Moore and the Some Fine Legal Distinctions Over at 306Taint.Us, there is a post about Judge Moore, with the following observations:
    Although Moore couldn’t make a consistent argument to save his life, he later seemed to be arguing that he wasn’t subject to the federal court’s orders because he was acting in his “judicial capacity.” I would agree with this. Federal courts can’t order state courts to interpret their own laws a certain way. A failure by a state court to correctly adjudicate a question of federal law can only be remedied by an appeal to a federal court (e.g. the US Supreme Court) or by “collaterally” attacking the verdict as provided in the Constitution – usually referred to as “habeas corpus.” None of these things involve ordering a state court to find a certain way or “obey” a federal court. In fact, I have heard state court judges say quite plainly: unless the US Supreme Court rules on the matter, I am not bound by the federal courts’ interpretation of it. On the other hand, a party to a matter before a state court may be bound by a federal court’s order NOT to pursue a matter. Also even if the Supreme Court has spoken, state courts are under the “supervisory power” of the Supreme Court, so, for example, a the Supreme Court might declare a high contempt fine to be unconstitutional but they would probably not specifically tell a state court the exact amount that a contempt fine could be. (I have a law review article coming out which touches on this issue.)
Some observations:
    First, in the ten commandments controversy Moore was acting in his administrative and not his judicial capacity.
    Second, federal courts do have the power to issue direct orders to state courts. Congress has limited that power in the Anti-Injunction Act and there are exceptions built into those limitations. For example, a federal court may enjoin a state court when an injunction is necessary to the preservation of the federal court's jurisdiction.
    Third, in Judge Moore's case, there is no action pending in the Alabama system. The only judicial proceeding is in federal court. As a consequence, direct attack would be an appeal in federal court. Any action in Alabama would be a collateral attack. (Collateral attack is not limited to habeas corpus, but can take place through a variety of procedural mechansims, including but not limited to an injunction from one court to another.)
    Fourth, although the Supreme Court does have appellate jurisdiction over decisions of state court's involving an issue of federal law, the Supreme Court has no "supervisory jurisdiction" over the state courts. "Supervisory jurisdiction" is a term of art, and it imports the implication of administrative as opposed to strictly judicial power.
    Fifth, it is absolutely correct that the lower federal courts (i.e., the United States District Courts and the United States Courts of Appeal) cannot hear appeals from state court. Furthermore, a somewhat arcane Rooker-Feldman doctrine precludes the lower federal courts from exercising original jurisdiction in a manner functionally equivalent to appellate jurisdiction.
How do I know all this stuff? Ironically, I am the author of the volume of Moore's Federal Procedure that covers these issues!

Crimes Against Humanity Norman Geras's series of posts on Crimes Against Humanity now has five installments. Here is a guide to the five parts:Recommended.

Less Moore Associated Press reports:
    Alabama's chief justice was suspended Friday for his refusal to obey a federal court order to remove his Ten Commandments monument from the rotunda of his courthouse. Roy Moore was automatically suspended with pay when the nine-member Judicial Inquiry Commission referred an ethics complaint against him to the Court of the Judiciary, which holds trial-like proceedings and can discipline and remove judges.

Halpin versus Coase Andrew Halpin (University of Southampton Faculty of Law) has posted a paper entitled Disproving the Coase Theorem? Here is the abstract:
    This essay explores the detailed argument of the Coase Theorem, as found in Ronald Coase's "The Problem of Social Cost" and subsequently defended by Coase in The Firm, the Market, and the Law. Fascination with the Coase Theorem arises over its apparently unassailable counterintuitive conclusion that the imposition of legal liability has no effect on which of two competing uses of land prevails, and also over the general difficulty in tying down an unqualified statement of the theorem. Instead of entering the debate over what exactly the theorem holds, this article suggests that the core of Coase’s reasoning is flawed and to the extent that any version of the theorem relies upon this reasoning it can be disproved. It is further suggested that a version of the theorem which avoided the need for Coase's core argument by focusing on "the efficiency thesis" at the expense of "the invariance thesis" would be insufficiently significant to merit the status of a theorem.

Friday, August 22, 2003
Barnett on the Original Meaning of the Judicial Power Randy Barnett (Boston University) has posted The Original Meaning of the Judicial Power on SSRN. Here is the abstract:
    In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, I shall demonstrate that the original meaning of the "judicial power" in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the "judicial power" included the power to nullify unconstitutional laws.
Barnett is one of our most original constitutional theorists. I always look forward to this papers. Download it while it's hot!

More Moore News CNN reports:
    Alabama state officials have made plans to remove a 5,300-pound monument inscribed with the Ten Commandments from the rotunda of the state judicial building, attorneys for those demanding the removal told CNN Friday. The plans to remove the statue are going forward despite the protests of Alabama Chief Justice Roy Moore, who has opposed a federal judge's order to take the monument away from the building.

Lessig on WIPO and Open Source Software Larry Lessig has a post on Microsoft's efforts to get the United States Government to ask WIPO to cancel a meeting on open source software. Here is a taste:
    According to the Post, Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said “that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights.” As she is quoted as saying, “To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.”

Ides on Habeas Allan Ides (Loyola Marymount) has a wonderful article up on SSRN. The title is Habeas Standards of Review under 28 U.S.C. Section 2254(d)(1): A Commentary on Statutory Text and Supreme Court Precedent, and it is forthcoming in the Washington & Lee Law Review. Here is the abstract:
    The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") extensively revised of the law of habeas corpus as practiced within the federal judicial system. One of those revisions is found in 28 U.S.C. section 2254(d), which limits a federal court's authority to grant writs of habeas corpus on behalf of persons held in state custody. Consistent with this section, a federal court's jurisdictional authority is constrained by three specified standards of review, two pertaining to errors of law and one pertaining to errors of fact. The focus of this article is on subsection (d)(1), which creates the critical review standards applicable to errors of law. A mere seventy-six words in length, subsection (d)(1) is enormously important because it controls all "error of law" access to federal habeas review. As a practical matter, the operational scope of subsection (d)(1) depends on the interpretation of its two key textual components. The first limits the grant of federal habeas to state court decisions that contravene "clearly established Federal law, as determined by the Supreme Court." Careful attention to these words is required to appreciate the nature and scope of the claims that may be asserted on habeas. The second component creates two alternative standards of review, one pertaining to state court decisions that are "contrary to" that clearly established federal law, and the other pertaining to state court decisions that "involve an unreasonable application of" that law. This article presents a detailed examination of the text of section 2254(d)(1) and a close examination of all the key Supreme Court precedents interpreting and applying that text, including the quartet of section 2254(d)(1) decisions issued during the October 2002 Term of the Court. The goal is to capture a sense of how one might navigate this text in the real world of habeas litigation. The author's ultimate conclusion is that the text is more significant than the precedents construing it and that properly understood the text is not the draconian measure many have assumed it to be.
Allan's article is both meticulous and insightful, and despite its technical nature, the issue involved is fascinating and jurisprudentially significant. Download it while it's hot!

Yu on Copyfighting Peter Yu (Michigan State University-DCL College of Law) posts The Escalating Copyright Wars (forthcoming in the Hofstra Law Review) on SSRN. Here is the abstract:
    Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry loses billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies include the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster, the Supreme Court's rejection of the copyright bargain theory in Eldred v. Ashcroft, and the recording industry's recent success in RIAA v. Verizon Internet Services. Notwithstanding these victories, the war is expanding and has become even more difficult for the industry to fight than it was a year ago. Today, copyright law is no longer a complicated issue that is only of interest and concern to copyright lawyers, legal scholars, and technology developers. Rather, it is a matter of public significance, affecting all of us in our daily lives. The ground has shifted. If the entertainment industry does not pay attention to the public and if it continues to use its ill-advised battle strategies, it eventually might lose the war. Delivered as part of the 2003 Frontiers in Information and Communications Policy Lecture Series at Michigan State University, this Article examines the strategies used by the entertainment industry to fight the copyright wars: lobbying, litigation, and self-help. It also explores the impact of Eldred v. Ashcroft on these strategies, the decision's ramifications on future constitutional challenges to copyright laws, and recent developments in the international copyright arena. It concludes by arguing that the entertainment industry should change its existing strategies in light of the proliferation of peer-to-peer file-sharing networks and the increased consciousness of copyright issues.

New Papers on the Net Here is today's roundup:
    Pierre Salmon (Université de Bourgogne) posts The Assignment of Powers in an Open-ended European Union. Here is the abstract:
      A major characteristic of the European Union is its transitional or evolving nature, in particular with regard to the assignment of powers between the two main levels of government. More precisely, under current constitutional arrangements, this evolving nature takes the form of an integration process which tends to be monotonous, that is, which can only with great difficulty be reversed. The paper is mainly devoted to the explanation of how this comes about and what effects this has on other features of the process. As a concluding remark, however, it suggests that an additional criterion for judging -- or an additional indicator for reading -- proposed constitutional reforms can be derived from the analysis. This criterion or indicator should be of some value independently of the position adopted with regard to European integration.
    Jean-Pierre Benoet (New York University - Department of Economics) and Juan Dubra (Universidad de Montevideo - Department of Economics) post Why Do Good Cops Defend Bad Cops?. Here is the abstract:
      Policemen are known to support colleagues who are the subject of criminal investigations. While we might expect guilty officers to defend each other, why do law-abiding policemen defend those who have broken the law? We investigate under what conditions it is in the interest of a group to defend its "bad" members.
    Debbie Bassett (Michigan State University - Detroit College of Law) posts The Hidden Bias in Diversity Jurisdiction, forthcoming in the Washington University Law Quarterly. Here is the abstract:
      Commentators have repeatedly debated the continued viability of diversity jurisdiction. These debates have tended to focus on two points: the existence of local bias (which contributes to arguments favoring the retention of diversity jurisdiction) and the workload of the federal courts (which contributes to arguments favoring the abolition of diversity jurisdiction). What has been missed in this debate is that, far from being an antidote to local bias, diversity jurisdiction today embodies, and indeed promotes, a form of bias by its very existence - a bias against rural areas so pervasive as to require the abolition of diversity jurisdiction.
Other papers of interest:

Conference Announcement: Supreme Court Preview
    The Institute of Bill of Rights Law is pleased to announce the sixteenth annual Supreme Court Preview, September 19 & 20, 2003, at William & Mary School of Law, in Williamsburg, Virginia. WHAT TO EXPECT FROM THE 2003-2004 TERM The Institute of Bill of Rights Law is putting on the 16th annual Supreme Court Preview conference at which leading legal scholars, lawyers, and Supreme Court journalists will discuss and analyze the Court’s upcoming term. The conference will begin on Friday night with a moot court argument of one of the Court’s most important pending cases, Locke v. Davey. In this case, the Court will determine whether a Washington state regulation that excludes students studying theology from receiving state-funded scholarships violates the Free Exercise Clause of the First Amendment. This case constitutes an important follow-up to the Court’s landmark school voucher decision of 2002. Erwin Chemerinsky of the University of Southern California Law Center will represent the state of Washington (he has helped write an amicus brief on behalf of the state), while Jay Sekulow of the American Center for Law and Justice will represent the aggrieved student (as he will in the actual argument before the Supreme Court). We have assembled our own “Court” of nine distinguished legal scholars and journalists to hear the argument and render a decision. Following the moot court argument, we will examine and critique the process by which Supreme Court justices and lower court judges are appointed by the President and confirmed by the Senate, and then explore the implications of the Court’s landmark Lawrence v. Texas decision in June 2002 striking down the Texas anti-sodomy statute. On Saturday, a series of panels will discuss the leading cases on the Court’s docket for the 2003 term. These cases include constitutional challenges to campaign finance legislation, politically gerrymandered electoral districts, police roadblocks, and Title II of the Americans with Disabilities Act. We will also consider the implications of the failure to warn suspects of their Miranda rights as well as several other legal issues. This conference is ideal for journalists, editorial writers, lawyers, law professors, and government teachers who want an in-depth look at the Court’s upcoming term. Each registrant will receive a 500-page notebook of materials that will provide detailed information about the Court’s pending cases. We will offer up to 7 hours of CLE credit (no ethics) for those attending the conference. Participants:
      Joan Biskupic, USA Today Erwin Chemerinsky, University of Southern California Law School Marcia Coyle, National Law Journal Walter Dellinger, O'Melveny & Myers, Duke University School of Law Lyle Denniston, Boston Globe Neal Devins, William & Mary School of Law Dave Douglas, William & Mary School of Law Chai Feldblum, Georgetown University Law Center Mike Gerhardt, William & Mary School of Law Susan Herman, Brooklyn Law School Charles Lane, Washington Post Paul Marcus, William & Mary School of Law Alan Meese, William & Mary School of Law Tony Mauro, Legal Times John McGinnis, Northwestern Law School David Savage, Los Angeles Times Jay Sekulow, American Center for Law & Justice Suzanna Sherry, Vanderbilt Law School David Strauss, University of Chicago School of Law Kathy Urbonya, William & Mary School of Law Steve Wermiel, American University College of Law

Thursday, August 21, 2003
Bertram on Honderich Controversy Chris Bertram blogs on philosopher Ted Honderich and his controversial book After the Terror.

More Moore Alabama Supreme Court Chief Justice Moore and the ten commandments generates more commentary, this time from Jack Balkin, here and here.

Two by Helfer Laurence Helfer (Loyola Marymount), whose work I greatly respect, has two new papers on SSRN that went up today:
    Whither the UDRP: Autonomous, Americanized or Cosmopolitan?. Here is the abstract:
      Recently, assessments of the performance of the Uniform Domain Name Dispute Resolution Policy (UDRP) have stressed the need for institutional and procedural reforms relating to issues such as forum shopping, panel selection, and pleading rules. Far less attention, however, has been paid to a different set of issues critical to assessing the UDRP's performance: its relationship to national courts and to national intellectual property laws. There are three different ways in which this relationship might evolve to change the present structure and functions of the UDRP. First, the UDRP might be made more autonomous in character, transforming it into a body of non-national rules and procedures distinct from any one nation's laws and largely insulated from review in national courts. Second, the UDRP might become more Americanized by interpreting its substantive rules in harmony with U.S. statutes and case law, and by funneling judicial challenges to panel decisions into U.S. courts. Third, the UDRP might be made more cosmopolitan, enhancing the influence of a diverse array of national laws and legal institutions and generating new modes of interaction among national and non-national legal systems. This Essay explores these three evolutionary pathways and the critical questions each presents for institutions such as the Internet Corporation for Assigned Names and Numbers (ICANN) and the World Intellectual Property Organization (WIPO), for national lawmakers and national courts, and for those advocating procedural reforms of this new dispute settlement system.
    Constitutional Analogies in the International Legal System, forthcoming in the Loyola of Los Angeles Law Review. Here is the abstract:
      This Article explores issues at the frontier of international law and constitutional law. It considers five key structural and systemic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, I survey the international legal landscape and consider the salience of potential analogies to domestic constitutions, drawing upon and extending the writings of international legal scholars and international relations theorists. I also offer some preliminary thoughts about why some treaties and institutions, but not others, more readily lend themselves to analysis in constitutional terms. And I distinguish those legal and political issues that may generate useful insights for scholars studying the growing intersections of international and constitutional law from other areas that may be more resistant to constitutional analogies.

The Blawg Review Courtesy of Greg Goelzhauser, I've just come across The Blawg Review, which posts on new issues of law reviews as they come out. The Legal Theorist thinks this pretty nifty.

Copynorms Department
    Copynorms are the informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
I have been bloggin on copynorms. Here is a guide to resources, my posts, and blogospheric reactions:

Wednesday, August 20, 2003
The Soul and Politics Over at The Examined Life, John Christodoulou has a piece entitled Soul and Politics in Aristotle's Politics. This covers a lot of ground in a few paragraphs!

Josh Cherniss on Neo-Conservatism I recommend this post, scroll down for more. Also Matthew Yglesias here.

More Moore More the Judge Moore of Ten Commandments fame. Matthew Yglesias posts here--with lots of comments. And Jonathan S. Gradowski posts here. Jonathan notes that the Third Circuit has refused to reconsider its ruling that a 1920 ten-commandments plaque did not violate the establishment clause, setting up a potential circuit split with a decision in Moore's case:
    I am no Supreme Court expert, or even a lawyer, no less a law school student (I study Government and Economics at the London School of Economics), but logic tells me that the Supreme Court will almost certainly be forced to hear these two cases. The main reason, most obviously, is that they conflict. A plaque or a monument of the Ten Commandments, no matter how old or historical, is inherently a religious symbol.
Two quick points: (1) the Supreme Court refuses to grant certiorari in circuit splits all the time. I don't think anyone has counted, but I would bet money that there at least hundreds and more likely thousands of unresolved circuit splits. (2) The two cases are easily distinguishable, because of the historic nature of the plaque in the Third Circuit case. This does not mean that I think the Third got it right (or wrong), but the issues are different because historical preservation changes the context.

Trends in Legal Scholarship Department: Law and Economics and the Role of the Legal Academy As I was preparing this morning's New Papers on the Net (below), I was struck by the fact that most of the new downloadable papers on SSRN (basically one day's worth) involved cross-disciplinary collaboration. Here is an observation based on my impressions formed after scanning the new uploads on SSRN almost every day for several months:
    Within the law and economics paradigm, there is a considerable amount of co-authoring involving multiple disciplines. Academic lawyers with business school faculty members. Economists with academic lawyers. Economists in economics departments with economists on business school faculties. Of course, many of the academic lawyers have substantial formal training in economics.
These collaborations include law faculty members from the very top-tier of American law schools. What are the implications? Not so long ago, it was the conventional wisdom in the legal academy that legal studies programs in business schools were not important as a source of legal scholarship. Who knows if the conventional wisdom was right? Legal academics didn't read the scholarship coming out of the business schools, so how would they know? But with the advent of law and economics, the old conventional wisdom is breaking down. Without doubt law and economics scholarship is mainstream legal scholarship--it is no longer a specialty (mostly confined to a few law schools) that can be bracketed when making judgments about the legal academy as a whole. And this leads me to the following provocative assertion:
    The legal academy is losing its comparative advantage as the primary locus of legal scholarship.
This is not to say that another discipline is about to grab the primary role. But as perceptions shift and legal academics begin to recognize that important legal scholarship is now diffused among law schools, business schools, economics departments, and increasingly political science and philosophy departments, we can expect that the sociology of the legal academy will begin to shift in subtle ways. Here is one prediction:
    Lateral moves between law schools and business schools will become increasingly common.
Why business schools as opposed to economics departments or political science departments? I think there will be interdisciplinary movement affecting those disciplines as well, but it is not likely to be a two way street. Why not? Money. I am just guessing, but my guess is that most political science departments will be unwilling to pay the premium to lure someone away from the legal academy, when for the same price tag, they could acquire a high prestige political scientist. Will the law schools try to use their big salaries and light teaching loads to lure economists, political scientists, and philosophers away from the the letters and sciences? Well, this is already happening on a small scale, but there is a barrier--the J.D.
    Business schools can compete with law schools for J.D./M.B.A. or J.D./PhD graduates on salary, but only a few departments in the letters and sciences can do this.
Most law school faculties are unwilling to appoint more than one or two token faculty members who do not have formal legal training. Why? Because the law schools are still professional schools. The advanced doctorate in law (the J.S.D. or S.J.D.) is simply not the pathway into legal academics. And what does that mean? It means that no major American law school's prestige derives from its post-professional graduate programs, and hence, hiring is driven by the professional degree program. And what does this all mean? I'm really not sure. But from where I sit, it sure looks like change is in the wind.

New Papers on the Net Here is the roundup:
    Bruce Hay (Harvard Law School) and Kathryn Spier (Northwestern University - Kellogg School of Management) post Manufacturer Liability for Harms Caused by Consumers to Others. Here is the abstract:
      This paper investigates whether manufacturers should be liable if consumers, through the use of a product, cause harm to others. If consumers have deep pockets then consumer-only liability is socially desirable. With consumer insolvency, however, consumer-only liability leads to inadequate consumer precautions, inadequate safety features, and excessive economic activity. With homogeneous insolvent consumers, the best rule is "residual-manufacturer liability" where the consumer bears primary responsibility and the manufacturer bears the shortfall in damages. When consumers' willingness-to-pay is correlated with social harm they cause then residual-manufacturer liability distorts the market quantity. When consumers differ in their wealth then residual-manufacturer liability creates an inefficient cross-subsidization and an overprovision of safety features. In both cases, consumer-only liability may be preferred to residual-manufacturer liability. Applications, including gun manufacturer liability, are discussed.
    Law, Economics and Business) post Amitai Aviram (George Mason University - School of Law) and Avishalom Tor (Harvard University - John M. Olin Center for Law, Economics and Business) post Overcoming Impediments to Information Sharing. Here is the abstract:
      When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of compatibility, a key to producing positive network effects, typically requires information sharing. Understanding the hitherto neglected impact of sub-optimal information sharing is important not only for many areas of antitrust law, but also for developing effective policies towards network industries and critical infrastructures more generally, as well as for improving those procedural rules that concern information exchange among litigating parties. This paper therefore advances the legal analysis of impediments to efficient information sharing in a number of significant ways: First, it shows that the strategic behavior of competitors may erect an economic barrier to information sharing that has not been previously addressed in the literature - the fear of degradation. This form of strategic behavior involves the strategic refusal to share information when the refusal inflicts a greater harm on one's rivals than on oneself, and thus generates a competitive advantage. Second, the paper reveals a hitherto unrecognized set of behavioral impediments to information sharing, wherein rivalry norms and managers' risk attitudes bias competitors' judgments of the prospects of information sharing and the status-quo bias and ambiguity aversion lead these decision makers to avoid such arrangements. Third, it integrates these economic and behavioral insights with the findings of the extant literature to create a new framework for predicting when private information sharing will be suboptimal. Finally, we suggest how the alignment of private information sharing with social optimality may be promoted, based on the framework developed here.
    Roland Kirstein (Saarland University - Center for the Study of Law and Economics ) and Neil Rickman (University of Surrey - Department of Economics) post 'Third Party Contingency' Contracts in Settlement and Litigation, forthcoming in the Journal of Institutional and Theoretical Economics. Here is the abstract:
      We present, for the first time, a model of recent institutional developments in litigation funding across several European jurisdictions. Recognizing the financing constraints that British cost rules may impose on litigants, these new contractual arrangements combine contingency fees with third party cover for cost in the event of losing the case: we call these "Third Party Contingency" (TPC) contracts. Signing a TPC contract can make filing a suit credible and may increase settlement amounts. This does not, however, increase the likelihood of going to trial, since TPC contracts are only of mutual benefit to the plaintiff and the third party when the case settles out of court. We also find that the mere availability of TPCs may generate the above strategic effect.

Tuesday, August 19, 2003
Fleischer is Exuberant Victor Fleischer (UCLA and A Taxing Blog) posts The Rational Exuberance of Structuring Venture Capital Startups. Victor is a very welcome presence in the blogosphere. Here is the abstract of his article:
    This Article takes the bursting of the dot com bubble as an opportunity to reevaluate the tax structure of venture capital startups. By organizing startups as corporations rather than as partnerships, investors and entrepreneurs seem to leave money on the table by failing to fully use tax losses - especially since the vast majority of startups fail. Conventional wisdom attributes the lack of attention paid to losses to a "gambler's mentality" or optimism bias. I argue here that the use of the corporate form is, in fact, rational, or at least that there is a method to the madness. I make four main points. First, the tax losses are not as valuable as they might seem; tax rules prohibit many investors from capturing the full benefit of the losses. Second, the VC professionals who structure the deals do not personally share in the losses, so they have little reason to care about the tax effects of the losses. Third, gains are taxed more favorably if the startup is organized as a corporation from the outset, and again, this favorable treatment of gains is especially attractive to the VC professionals - further evidence that agency costs may be playing a role here. Fourth, corporations are less complex than partnerships: organizing as a corporation minimizes legal costs and simplifies employee compensation and exit strategy.

eroG .v hsuB on ebirT Laurence Tribe has posted his original Bush v. Gore piece on SSRN, making it easier to follow the ongoing debate online--that link and this one take you to Randy Barnett's pointers to the debate.. Click on the title: eroG .v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors. It is in print at 115 Harv. L. Rev. 170 (2001). Here is the abstract of Tribe's article:
    My objective in this essay is to dispel the suspicion that Florida's highest court played fast and loose with the state's election statutes, while showing that in Bush v. Gore the U.S. Supreme Court acted in a manner wholly inconsistent with its constitutional responsibilities, whether viewed in terms of equal protection and due process or in terms of Article II; that the U.S. Supreme Court had no warrant to interfere with the political process as it did; but that its having done so was sadly of a piece with much that the Court has done in recent years. Part I sets the stage with a description of the lawsuits that culminated in Bush v. Gore. Part II demonstrates that the entire Article II issue that has so fascinated many commentators is a red herring and that observers on both sides have conjured an Article II problem where none really exists. Part III explains that the failing of the Chief Justice Rehnquist's concurring opinion for himself and Justices Scalia and Thomas is not that it asked an inadmissible Article II question, but that it gave an indefensible answer. Far from changing, breaking, or even bending anything in state law, the Florida Supreme Court was adhering faithfully to both the letter and the spirit of the statutory scheme that the Florida Legislature put in place and made applicable to presidential elections pursuant to its duty under Article II, Section 1, Clause 2. The image of a partisan state court run amok, which seemingly drove the Court's majority and continues to haunt its defenders, dissolves under close analysis, leaving in its place the straightforward picture of a workmanlike judicial tribunal doing its best, under trying and unprecedented circumstances, to apply an admittedly imperfect set of election rules. In light of the Florida legislature's acceptance of judicially supervised partisan struggle as a way to facilitate democratic choice; its explicit declaration that election officials are presumed to tabulate votes fairly in that partisan environment; its unequivocal embrace in 1999 of an increasing number of election contests and, thus, of more manual recounts; and its overwhelming preference for standards over rules in the election context, it is not the resolution of the Florida Supreme Court, but instead the model of resolution Chief Justice Rehnquist advances, that would have required the Florida courts to depart from the legislative scheme. Part IV demonstrates that the majority's equal protection holding invalidating the Florida court's remedial recount is completely without merit. The Court's "one person, one vote" doctrine cannot be understood to support the Court's substantive decision - at least, not without calling into question the constitutionality of the way votes have been counted in numerous statewide elections in our nation's history, including, most importantly, the official count of the votes in Florida that was certified by the Florida Secretary of State as a result of the Court's intervention in Bush v. Gore itself. Nor can the decision be explained by any newfangled equal protection doctrine, or by reference to procedural or substantive due process. Therefore one cannot escape the conclusion that Bush v. Gore rests on about nothing more than the simple intuition of a majority of the Court that Florida's procedures for deciphering ballots, common though they may be, just won't do because they offend the Court's own notion, more aesthetic than constitutional in character, of how ballots should be tabulated. Much of the remainder of the article is devoted to addressing the possible sources of the Court's unease about the "intent of the voter" standard under which similar looking ballots might be interpreted differently at different times and places, and demonstrating that the Court's unease either is constitutionally unwarranted or, if warranted, would point not to ending the recount but to invalidating the entire election, certainly in Florida and perhaps throughout the nation. The Court added insult to injury by denying the State of Florida the opportunity to remedy the defects that the Court identified - and, remarkably, the Court did so through an indefensible reading of Florida's own state law, which the Court implausibly claimed the Florida Supreme Court had construed to require an end to the vote - counting less than two hours after the Court issued its decision. Nothing in One can read the Florida statutes backwards and forwards without finding even the slightest clue that the state legislature ever decided that all recounts in a contested presidential election must stop by December 12 - at whatever cost. Worse still, reading the laws of Florida, as the Court did, to mandate this purchase of electoral security at the price of tossing out into the sea thousands of ballots, many of which clearly expressed the intent of the voters who cast them, would by the Court's own lights have been flatly unconstitutional. Part V shows that the Bush challenge to the recount presented a political question for resolution by Congress rather than a justiciable question for an Article III court. A court ordinarily need not and should not decline from considering a pre-election constitutional challenge to a state system for conducting presidential elections; but challenges to a state's actions in the course of a particular presidential election - challenges like this one that reach the Court so close to the election that it appears no decision other than one stepping on Congress's Twelfth Amendment toes seems possible - should be regarded as nonjusticiable. The Bush v. Gore Court simply but mistakenly took for granted its authority to weigh in and essentially to decide the presidential election. Moreover, the Court's stretching of the constitutional fabric was not necessary to protect the nation itself from being torn apart. Part VI explains why my critique of the Supreme Court's holdings does not presume partisan motives, arguing that what the Court did is perfectly understandable in terms of several unfortunate pathologies generally manifested in its recent jurisprudence. This Court exhibits a regrettable staggering belief that it alone is capable of confidence in its own ability to define and prioritize values of constitutional magnitude and decide which measures are needed to realize those values. High on that list of values is the preservation of a stable political order and of an appearance of regularity. Low on that list is an energized, politicized, unruly electorate struggling to find its way toward concrete outcomes in such forms as the election of a president. The Court's self-confidence in its own infallibility in matters constitutional is matched only by its disregard for the meaningful participation of other actors in constitutional debate. As many of the Court's recent decisions have demonstrated, the Justices in the Bush v. Gore majority have little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with "We the People" as the ultimate source of sovereignty in this republic. Part VII discusses comments on the exceptionality of Bush v. Gore. Finally, Part VIII draws some lessons for the future, concluding that the real challenge is not to strip the Justices of their power but to expose and erase the flawed vision of our Constitution that has animated so many of their recent decisions and to reinvigorate the work of democracy in a way that can give the lie to that vision, inspiring the successors of today's Justices, if not them, to join in a more noble constitutional venture.
I am tempted to comment, but the truth is I am just not well enough informed to contribute anything other than an opinion formed by instinct rather than deliberation. Surely, the Bush v. Gore debate has more than enough of those.

Loquendum ut vulgus, sentiendum ut docti Here.

Manheim on the Recall Litigation Karl Manheim comments on the latest hearing in the recall litigation here. Here is a taste:
    Here are some highlights of the hearing today before Judge Steven Wilson in the ACLU suit to postpone the recall election until the punch card voting machines are replaced in 6 California counties that still use them. First, some general impressions. Judge Wilson did not feel himself terribly constrained by the consent decree in the Common Cause case (also before Wilson), in which the Secretary of State agreed to decertify the punch card machines by March 1, 2004. Wilson stated on several occasions that the findings in the decree were those of the parties, not of the court. Perhaps as a result, Wilson also did not seem terribly worried about the state’s res judicata argument. The matter came up only at the end of the 90 minute argument. Wilson also said he didn’t feel bound by Bush v. Gore, at one point asking “what does Bush v. Gore have to do with this case”? He said he thought the case was limited to its facts, and cited the per curiam opinion’s statement to that effect.
For all things recall, follow Rick Hasen's stunning Election Law Blog.

More Moore Chief Justice Moore of the Alabama Supreme Court lacks the virtue of justice--he is not disposed to follow the law when it conflicts with his ideology or the interests of his political career. But Moore is not the only Alabama official whose character is called into question by the ten-commandments monument imbroglio. Only a few Albama officials have been willing to condemn Moore's action, and one of the reasons is that he is very popular with Alabama voters. For more on Moore, surf on over to Jurist for this post. And there is even more Moore on How Appealling here and especially here.

New Papers on the Net Here is today's roundup:
    Mark Fenster (University of Florida) posts Takings Formalism and Regulatory Formulas: Exactions and the Consequences of Clarity. Here is the abstract:
      A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics for constitutionally permissible exactions that requires concessions to have an "essential nexus" and be "roughly proportional" to the harms a proposed development is expected to cause. This Article argues that these suspicions are well-founded, but that blame for judicial and administrative non-compliance lies with the Court itself. The Supreme Court's efforts in Nollan and Dolan to establish doctrinal clarity in the individualized, local land use regulatory process have not, and cannot, achieve their goals of securely protecting property rights and discipline regulatory practices. What the Article describes as the Court's takings formalism fails to constrain regulatory practices in their intended way, and results in constraints on the variable, locally situated, and intensely political context of local governance. These constraints, which include incentives for local governments to develop preconstituted regulatory formulas and disincentives against individualized, negotiated concessions, often promote neither the Court's preferred normative vision of strong property rights protection nor the Court's stated secondary concern for better, more efficient land use regulation. Most perniciously, the Court's limited doctrinal, normative, and utilitarian visions of takings law may block and damage the essential political and social processes necessary to legitimate and functional local governance.
    Sean Griffith (University of Connecticut - School of Law) posts The Costs and Benefits of Transactional Certainty: An Appraisal of Omnicare v. NCS Healthcare. Here is the abstract:
      In Omnicare v. NCS Healthcare, the Delaware Supreme Court recently announced what appears to be a bright-line rule against transactional certainty in mergers and acquisitions. Even in the context of a friendly merger agreement - that is, a negotiated transaction not involving a "change in control" - target boards may not agree to a fully protected merger agreement. Instead, it is now a requirement of law that target boards always include an escape clause, in the form of a fiduciary out, in their merger agreements. As a result, targets can no longer follow a "precommitment strategy," offering contractual certainty as a means of negotiating a better deal for shareholders. This article engages in a close analysis of the NCS opinion, first probing the doctrinal foundations then the policy implications of the majority's holding. As a matter of doctrine, I show that existing precedent neither compels nor supports the bright-line rule announced by the Court. Worse, as a matter of policy, the Court's open hostility to precommitment strategies is likely to harm shareholder welfare. Finally, I draw upon economic theory to propose an alternative rule that would preserve, under certain circumstances, the ability of target boards to follow an affirmative precommitment strategy.
    John Humbach (Pace) posts Just Being a Lawyer, forthcoming in Legal Ethics. From the abstract:
      This review describes how the dissembling strategies of the former President in the Jones case and impeachment proceeding, so widely reviled at the time, were in fact simply the advocacy techniques commonly employed by lawyers representing clients in our current (exaggerated) version of the adversary system. The comparison is pointedly not meant as a defense or apologia for Clinton, but as a criticism of lawyers and their "ethics." The core vice that Posner finds in Clinton’s efforts to contain the truth of the Lewinsky affair is very similar to a fault the public perceives in the behavior of lawyers generally. Namely, lawyers often try to obscure or distract from factual truth order to prevent the law from applying as intended. Most of this avoidance behavior is technically lawful because, for pragmatic reasons, allowances for such avoidance have been deliberately built into the criminal laws against perjury, obstruction of justice and the like. These allowances are a compromise that the law makes with morals so its criminal prohibitions will not unduly chill the advocacy zeal on which the adversary system depends. Because of these allowances, however, it may be problematic to make a legal case against Clinton for his efforts to conceal the Lewinsky affair. Nonetheless, Clinton’s manner of defense discloses unmistakably the serious discrepancy that exists between the standards of honesty that lawyers apply to themselves and those that the public expects of honest people in general and of a legitimate system of law in particular. In his report and analysis of the events, Judge Posner seems to recognize the problems, as did the public generally, but he does not take the opportunity to draw the consequent conclusions about certain widely accepted norms of adversarial practice today.

Monday, August 18, 2003
20 Questions * 2 Over at How Appealling, Howard Bashman will have another installment in his monthly series of twenty questions up on September 2. The September interview (link here) will be with federal circuit judge William Curtis Bryson. Each of Howard's interviews has been fascinating! And over at Crescat Sententia, their weekly series of 20 questions for well-known bloggers continues. You'll have to follow this link to find how who!

Bernstein on Academic Book Publishing David Bernstein has an interesting and informative post on academic book publishing on the Conspiracy. The post raises the question whether legal academics should publish with academic presses. Bernstein muses:
    "Of course you want to publish with a good university press; it's necessary for tenure at many school, looks great on the c.v., etc." But in the legal academy, at least, there has traditionally been no particular advantage to publishing books--absurdly, my forthcoming pieces in the student-edited Georgetown, Michigan, and Texas law reviews taken together probably look more impressive on my c.v. to law professors than does my book--and a book from a university press is not necessarily looked upon more favorably than a book from a commercial press. Moreover, independent scholars sometimes have a choice between university presses and commercial presses.

New Papers on the Net Here is today's roundup:
    Louis Hotte (University of Namur (FUNDP)), Fabrice Valognes (Facultés Universitaires Notre-Dame de la Paix (FUNDP) - Faculty of Economics) and Tanguy van Ypersele (Facultés Universitaires Notre-Dame de la Paix (FUNDP) - Faculty of Economics, Management and Social Sciences) post Property Crime with Private Protection: A Market-for-offenses Approach. Here is the abstract:
      We analyse property crime in an economy composed of a large number of heterogeneous individuals who need to protect themselves. The crime equilibrium is modeled as a free-access equilibrium in which the match between criminals and victims equates the average returns to crime. The supply and toleration for crime are endogenized taking into account incentives to participate in criminal activities and individual protection decisions. We first observe that individual welfare is positively affected by the gross returns to crime. We then obtain that the share of wealth lost to crime and spent on private protection is the same for all individuals, regardless of their initial wealth. And although economic growth has ambiguous effects on the crime rate and the aggregate value of stolen goods, it unambiguously improves the welfare of all, regardless of how the fruits from growth are spread among the population. Finally, we argue that whether redistribution or public enforcement is more effective in reducing crime depends crucially on how well one can target a certain group of individuals.
    Steve Sheppard (University of Arkansas - School of Law) posts Passion and Nation: War, Crime, and Guilt in the Individual and the Collective, forthcoming in the Notre Dame Law Review. From the abstract:
      Riffing off of George Fletcher's theory of Romanticism and war, the article reviews Fletcher's arguments, which received derisive reviews during the War against Iraq in 2003. The article takes Fletcher's approach seriously in considering the problem of war as a Romantic impulse, and the difficulties that understanding causes. The article then derives arguments on the limits of the laws of war to apply to military actions against terrorism. The article considers the nature of collective guilt as a mitigating element in the crimes of one individual, and it considers the nature of non-state enemies in war. This last point is illustrated through detailed contrast between the US experiences in the Barbary Wars and the Punitive Expedition to Mexico.
    Stefan Kirchner (Justus Liebig University) posts The Jurisdiction of the European Court of Human Rights and Armed Conflicts. Here is the abstract:
      n early 2003 the first applications relating to the ongoing war in Chechnya have reached Europe's top Human Rights Court, thus creating a second wave, after the Kurdish cases, of applications relating to alleged human rights violations by parties to the European Convention for the Protection of Fundamental Rights and Freedoms. These applications, which might be followed by hundreds of thousands per year, if the war continues, could lead to a serious deadlock of the Court. Therefore the question has to arise, whether or not the European Court of Human Rights has jurisdiction over such cases. This question is of particular interest if states parties to the Convention are engaged in military operations outside their own borders: The decision whether or not the Court will have jurisdiction in such cases will to a large extend depend on the question, whether or not Art. 1 ECHR is applicable, i. e. whether or not the acts which are claimed to constitute a violation of the Convention are included in the scope of the term "jurisdiction" as used in Art. 1 ECHR. An other factor which will often be problematic will be the lack or collapse of the local court system or problems with access to justice for members of certain groups involved in the situation. Both aspects can impose serious hurdles for the applicant with regard to the requirement that all local remedies need to be exhausted in order for an application be admissible in Strasbourg. Given that the War against Terrorism continues and that parties to the Convention like the United Kingdom are currently occupying parts of Iraq while other parts are controlled by the United States which obviously is not a party to the Convention, the question of the Court's could have a major impact on how future operations will be conducted, especially when they are to serve the purpose of defending the freedoms and human rights of, for example, the Iraqi people. In this paper, we will examine the Court's response to these questions in the conflicts in Northern Ireland, Cyprus, the 1999 NATO War against Serbia and most recently in Chechnya. It will be shown that the Court fails to give maximum protection to the people affected by armed conflicts and provide for full equal treat due to factors completely outside the control of the applicants. On the other hand it will be shown that the Court, once it has accepted jurisdiction over a case, facilitates applications by weaving the requirement that domestic remedies are exhausted rather often while still in line with its earlier rulings.
And here is an additional paper of interest:

New Issue of Law and Philosophy You can now access the July 2003 issue of Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy, edited by Michael Moore and Heidi Hurd. Here are the titles & links to pay-per-view downloading:This looks like a very interesting collection! But I must warn you that Kluwer's pay-per-view fees are steep.

Leiter Reports on Major Law School Faculty Moves On the Leiter Reports, Brian has the annual roundup of major law school faculty moves. Legal Theory Blog is especially interested in Yochai Benkler (NYU to Yale), Robert Post (U.C. Berkeley to Yale), Henry Hansmann (Yale to NYU), Chris Sanchirico (Virginia to Penn), Andrei Marmor (Hertzlia to USC) and Michael Perry (Wake Forest to Emory). These two moves are especially important to the world of jurisprudence, legal philosophy, and legal theory:
    Stephen Perry goes to NYU form from the University of Pennsylvania. This solidifies NYU's position as one over the very top places in the world for legal philosophy.
    John Deigh goes to Texas from Northwestern University.
Oh, and Lawrence Solum (Loyola Marymount to University of San Diego). Without Leiter's report, I am sure it would have taken me years to catch up with some of these moves. (Not the last one, I hope.)

Sunday, August 17, 2003
Welcome to the Blogosphere To the Professor of Blogic!

Hasen on the Recall For a very good analysis of the California recall litigation, surf on over to Rick Hasen's Election Law Blog!

Equity I was just going through a pile of papers I had been reading, and I came across one by Noah Feldman that I thought I would mention. The paper is titled Equity in History, and it makes some very interesting and provacative points. The paper begins by quoting Aristotle's famous discussion of equity in the Nicomachean Ethics, and it goes on to trace the historical reception and development of Aristotle's idea. Here is a taste:
    [T]he historical argument of the broader project involves two claims. The first historical claim is that it is possible to divide the thinkers under consideration into two categories with respect to their reading of Aristotle. The first category includes those thinkers who understand Aristotle to say that law consists in following certain general rules, but that under certain conditions, where rule-following would lead to an unjust outcome, some person or persons has the task of rectifying the law to reach a different outcome in the particular case at hand. On this view, rectification is not a form of interpretation, in which some set of background principles is deployed to make sense of a given rule and apply it to a particular case. To the contrary, rectification entails some act phenomenologically different from interpretation: the fixing or correcting of the rule, not the interpretation of it. Thus, for example, if the rule is that cars must travel no faster than 60 miles per hour, and if I am stopped for driving 75 mph but protest that I am bringing someone to the hospital give birth, then the judge (or police officer, or whoever) who decides not to apply the rule to me is not interpreting the rule, but fixing it. The rule did not provide for an exception; it was, rather the person charged with rectifying the law who made the judgment that the rule was deficient and then corrected the rule. For convenience, let us call thinkers who fall into this category “rectifiers.”
    The second category includes those thinkers who deny that Aristotelian equity consists in some action that corrects rules or deviates from the normal practice of applying the law. These thinkers prefer to say that normal mechanisms of interpretation authorize the judge in a particular case to reach a legal outcome consistent with the true meaning of the law--the implicit intent of the law all along. On this view, the law in its truest sense, properly interpreted, does not prohibit a driver transporting a woman in labor from driving 75 mph. A judge or policeman who decided that the law did not apply to such a person would not be correcting the law but following it, by means of an act of interpretation. After all, Aristotle recommends deciding as the lawgiver “would himself decide if he were present,” and this is a plausible interpretive principle, especially if one assumes the lawgiver to have been reasonable. For the sake of convenience, call this second group, thinkers who understand equity as an interpretive act, “interpreters.” The terms “rectifiers” and “interpreters” are perhaps imprecise, and close analysis of the historical material complicates even these loose terms significantly. But that imprecision is an inevitable feature of the generalizing element of historical thinking, without which intellectual history would be little more than doxography.

Legal Theory, the journal The most recent issue of Legal Theory (Volume 9, Issue 1) includes the following articles:
    Jules L. Coleman, Ori Simchen, Law. Here is the abstract:
      Prior to the publication of Hart's The Concept of Law, it was not uncommon for legal philosophers to identify jurisprudence with the quest for a definition of “law.” Hart explicitly resisted this characterization of the ambition of jurisprudence; the subject matter of jurisprudence is law, not “law.” Notwithstanding Hart's assertions to the contrary, in Law's Empire Ronald Dworkin argues that Hart's own legal positivism as well as other familiar jurisprudential theories (like natural law) are semantic theories: that is, accounts of the meaning of “law.” Dworkin further identifies semantic theories with criterialism, according to which the meaning of a term is given by shared criteria for applying it. The meaning of the expression “law” on this view is given by a rule or set of criteria specifying the conditions that must be satisfied in order properly to employ that expression, and the project of a semantic jurisprudence is to identify that rule.
    P. Markwick Independent of Content. From the abstract:
      Reasons appear to fall into well-recognized types: pro tanto or decisive, moral or nonmoral, and so on. Nowadays, it is widely held that reasons can also be “content-independent.” This paper is directed against this belief.
    Ishtiyaque Haji, The Emotional Depravity of Psychopaths and Culpability. From the abstract:
      In this paper, I restrict discussion to cases of psychopathy in which it is assumed that psychopaths who satisfy epistemic requirements of responsibility, including the requirement that one is culpable for an action only if one performs it in light of the belief that one is doing wrong, can and do perform actions they take to be immoral or illegal. I argue that in such cases, the well-documented emotional impairment of psychopaths fails to subvert moral culpability. In particular, it does not undermine the sort of control required for moral blameworthiness and, hence, assuming all other conditions of responsibility have been met, the psychopaths of concern are indeed culpable for their behavior. Drawing, however, from certain lessons regarding the effects of coercion on responsibility, I propose that emotional impairment is a factor that should abate, perhaps even significantly, negative reaction to or treatment of such agents.

Saturday, August 16, 2003
New Papers on the Net Here is today's roundup:
    Stephanos Bibas (Iowa) posts Apprendi in the States: The Virtues of Federalism as a Structural Limit on Errors, forthcoming in the Journal of Criminal Law and Criminology. Here is the abstract:
      In Apprendi v. New Jersey, the Supreme Court of the U.S. required, at a minimum, that juries find beyond a reasonable doubt any fact that increases a defendant's statutory maximum sentence. This watershed decision broke sharply with two centuries of judicial discretion to find facts at sentencing under lower standards of proof. Apprendi left open large questions about its scope: would it change indictment and plea procedure? Would it be retroactive? Would Apprendi errors be harmless? Would Apprendi invalidate judicial mandatory minimum sentences or sentencing guidelines? Over the last three years, state courts have struggled to answer these questions. And they have by and large reached an unusual consensus: Apprendi should extend no further than its narrow holding requires, limiting only facts that raise statutory maximum sentences. This piece canvasses this development and asks why it developed this way. State courts have limited Apprendi not simply because they follow the Supreme Court in lock step or because they are mindless bastions of conservatism. The underlying lesson is that the state courts saw Apprendi's errors and reacted to limit them. They remained faithful to Apprendi's core holding, but they brought their practical experience to bear in damage control by extending it no further. A consensus developed that Apprendi was wrongly decided and should go no further than it must. This brings out a new point about federalism. States are often praised as laboratories of experimentation, going beyond federal minima. But here the process worked well in reverse: the Supreme Court went too far, and the states braked the expansion of what they rightly saw as a disruptive mistake. The moral of the story is that state courts are valuable participants in our cooperative federalism of criminal procedure as much for what they refrain from doing as for what they do.
    Donald Clarke (University of Washington) posts Corporate Governance in China: An Overview. From the abstract:
      Corporate governance (gongsi zhili) is a concept whose time seems definitely to have come in China. Chinese definitions of corporate governance in the abstract tend to cover the system regulating relationships among all parties with interests in a business organization, usually spelling out shareholders as a particularly important group. But Chinese corporate governance discourse in practice focuses almost exclusively on agency problems, and within only two types of firms: state-owned enterprises (SOEs), particularly after their transformation into one of the corporate forms provided for under the Company Law, and listed companies, which must be companies limited by shares (CLS) under the Company Law. This article discusses Chinese corporate governance in this narrow sense, and attempts to explain some perplexing features of its discourse, laws, and institutions (abbreviated hereinafter as "corporate governance laws and institutions" or CGLI). A fundamental dilemma of Chinese CGLI stems from the state policy of maintaining a full or controlling ownership interest in enterprises in several sectors. The state wants the enterprises it owns to be run efficiently, but not solely for the purpose of wealth maximization. A necessary element of state control of an enterprise is the use of that control for purposes such as the maintenance of urban employment levels, direct control over sensitive industries, or politically-motivated job placement. This in turn creates several problems. First, many of these goals are not easily measured and there is no obvious way of balancing them one against the other. This creates monitoring difficulties. Second, the policy of continued state involvement sets up a conflict of interest between the state as controlling shareholder and other shareholders. In using its control for purposes other than value maximization, the state exploits minority shareholders who have no other way to benefit from their investment. The major theme of this article is that the state wants to make SOEs operate more efficiently by subjecting them to a new and different set of rules - the rules of organization under the "modern enterprise system". Policymakers then find, however, that they must change and adjust the rules to take account of continuing state ownership. Moreover, the need to provide for the special circumstances of state-sector enterprises ends up hijacking the entire Company Law, so that instead of state-sector enterprises being made more efficient by being forced to follow the rules for private-sector enterprises (the original ambition), potential private-sector enterprises are hamstrung by having to follow rules that make sense only in a heavily state-invested economy.
    Christian List and Robert Goodin post Special Majorities Rationalized. Here is the abstract:
      Complaints are common about the arbitrary and conservative bias of special-majority rules. Such complaints, however, apply to asymmetrical versions of those rules alone. Symmetrical special-majority rules remedy that defect, albeit at the cost of often rendering no determinate verdict. Here we explore what is formally at stake, both procedurally and epistemically, in the choice between those two forms of special-majority rule and simple majority rule; and we suggest practical ways of resolving matters left open by symmetrical special-majority rules, such as judicial extrapolation or 'subsidiarity' in a federal system.
And (courtesy of Online Papers in Philosophy) several new papers from philosopher Mark Schroeder:
    An Account of Instrumental Reasons:
      We have some reasons because of our desires. They are purely instrumental reasons. This paper offers an account of when it is that a consideration counts as a purely instrumental reason for some agent to perform some action. Usual accounts of instrumental reason only tell us when the agent has some reason to perform some action, but not what her reason is. Often, such accounts only tell us when an agent has conclusive reason to perform some action, or what she has some reason to do, if other things are equal. I happen to hold that the account offered in this paper is not only extensionally correct, but a good constitutive account, and that it can also successfully be applied to all other reasons, including moral reasons and even epistemic or evidential reasons for belief. I call this extension of the view Hypotheticalism. But that's another story.
    Good, Reasons, and Good Reasons:
      This paper is framed as a response to the two obvious extensional objections to Hypotheticalism, the view about reasons that I favor - that it results in too many reasons, and that it results in too few. But the meat of the paper is in divorcing Hypotheticalism from some views with which it is commonly associated, a general result about why our intuitions about what we do not have a reason to do are liable to be highly misleading, and a suggestion about how a reductive theory of reasons can play an important role in reductive realism about the normative generally.
    Epistemic Reasons as Hypothetical Reasons: A Defense:
      This paper takes up the defense of the view that Hypotheticalism is an adequate account of even epistemic or evidential reasons. I frame the discussion as a response to a paper by Tom Kelly, who argues that epistemic rationality cannot be a species of instrumental rationality. The discussion is less up-to-date than that of “Good, Reasons, and Good Reasons”, but in some areas more detailed; it stands in need of supplement, however, since discussion of epistemic reasons raises a number of irrelevant side issues the distractingness of which I underestimated at the time of this draft, and of which I haven't yet managed a presentable treatment.
    Two ‘Reason’ Relations:
      This paper develops my preferred framework for thinking about the mess of distinctions moral philosophers are usually after when they distinguish between “agent-relative” and “agent-neutral” reasons or values. The central thesis is that the usual ways of making this distinction seriously beg the question against a wide range of views about the relationship between agent-relative and agent-neutral reasons. If we want to understand these views, we have to distinguish between agent-relativity and agent-neutrality in a way that doesn't predetermine questions of metaphysical or conceptual priority. In the end, however, I argue that these views are not sufficiently responsive to a variety of important surface phenomena.
    The Scope of Instrumental Reason:
      In “Two ‘Reason’ Relations” I argue that a certain kind of view about the relative priority of the agent-neutral reason relation and the agent-relative reason relation isn't wholly adequate to the surface phenomena. But a variety of arguments have been offered that some such view has to be correct. This paper takes up one such argument. According to this argument, a certain such view is actually a more adequate account of instrumental reasons - a paradigm of merely agent-relative reasons - than the Hypotheticalist alternative. I explain why this is not the case.
    The Hypothetical Imperative?:
      Did Kant believe that if one wills the end, one ought to will the means? Or merely that one ought to make it the case that if one wills the end, one wills the means? A growing consensus seems to hold the latter view, but this does serious violence to the text. I argue against this reading. I hold that it is motivated not by a careful consideration of the alternatives, but because it is a view contemporary interpreters of Kant find attractive, for reasons I consider and dismiss in “The Scope of Instrumental Reason”.
    Not All Moral Generalizations Are Created Equal:
      If Greta ought to do something, then there must be some reason for Greta to do it. So “ought” talk is existentially committing. This means that generalizations like “everyone ought to do what she desires” have different readings. On one reading, it is committed to a reason that everyone has, to do what she desires. On another, it only says that if Greta desires to eat cheese, then there is a reason for her to eat cheese. According to some philosophical views, this distinction is important. For according to these views, all reasons or obligations or “oughts” derive from some non-normative aspect of an agent’s circumstances. Critics argue that these views are incoherent. But the critics are either failing to grant this distinction, or are operating with a substantive theory about it, of the kind I discuss in “Two ‘Reason’ Relations” and “The Scope of Instrumental Reason”. This paper essentially explains away a few of the sillier reasons to be compelled by such views, and emphasizes the significance of existentially committing normative concepts.
And here is an additional paper of interest:
    Mutual Funds that Invest in Private Equity? An Douglas Cumming (University of Alberta - Department of Finance and Management Science) and Jeffrey Macintosh (Faculty of Law, University of Toronto ) post Analysis of Labour Sponsored Investment Funds.

More on Strauss and the Straussians Brian Leiter (who has written about this in other fora) blogs on the Leo Strauss question here.

Friday, August 15, 2003
Leiter on Intelligent Design Brian Leiter has been blogging on the issue of teaching intelligent design as part of the biology curriculum in public schools, and in particular on the impact on biology textbooks. As a consequence this petition is being circuweblated. How's that for immediate impact?

Oman on Audi Nate Oman has a nice post responding to some of Robert Audi's work on the role of religion in politics. Read the full post, but here is a tiny snack--a hypo that forms part of Oman's argument:
    Suppose that coercive policy X could be adequately justified to a fully informed, rational person. Dogberry (a citizen) is not, however, fully informed. He does not know about smaggles, and without a full knowledge of smaggles policy X makes no sense. As a result, Dogberry simply feels bullied and alienated. Dogberry has a friend named Verges who is also a citizen. Verges is a plodding, pedantic sort of guy and he knows all there is to know about smaggles. The problem is that he is just a little dumb. He gets tripped up in policy arguments, commits various logical fallacies and is generally confused once he is asked to analyze his vast collection of facts. As a result, he does not "get" the rational argument in support of policy X and -- like Dogberry -- feels deeply alienated. Finally, there is Angelo, a citizen, who is a bit of religious zealot and for purely a-rational (or perhaps irrational) reasons feels that policy X is very, very evil. When he is coerced by the policy he also experiences alienation.
And here is an interview with Audi.

More Moore Get more on Judge Moore (of Ten Commandments fame) at Southern Appeal here.
Update: And even more more Moore on Yin Blog.

Perry on Human Rights and the Courts Michael Perry's essay Protecting Human Rights in a Democracy: What Role for the Courts, 38 Wake Forest L. Rev. 635 (2003) is now available on Westlaw. Here is a taste:
    The search must be for a function which might (indeed, must) involve the making of policy, yet which differs from the legislative and executive functions; which is peculiarly suited to the capabilities of the courts; which will not likely be performed elsewhere if the courts do not assume it; which can be so exercised as to be acceptable in a society that generally shares Judge [Learned] Hand's satisfaction in a "sense of common venture"; which will be effective when needed; and whose discharge by the courts will not lower the quality of the other departments' performance by denuding them of the dignity and burden of their own responsibility. In the period since the end of World War II, a growing number of democracies have empowered their judiciaries to enforce constitutional norms, many of the most important of which are human rights norms that, as articulated, serve principally to limit the power of government. The Constitution of the Republic of South Africa (1996) provides an important recent example of such judicial empowerment. This "global expansion of judicial power"--which has been called "one of the most significant trends in late-twentieth and early-twenty-first-century government"--has led, in the view of some commentators, to "the judicialization of politics." Some prominent legal scholars--most notably, Mark Tushnet and Jeremy Waldron--have recently argued that such government by judiciary, especially American-style judicial review, subverts the democratic ideal of government by the people and is therefore deeply problematic. Less prosaically, the claim is that government by a politically independent judiciary subverts the democratic ideal of government by the politically dependent, electorally accountable, representatives of the people.
The SSRN version, which may not be identical is here.

Norman Geras on Crimes Against Humanity Surf on over to Normblog for this post on crimes against humanity--with more to come.

Hylton on Products Liability Kieth Hylton (Boston University) posts Preemption and Products Liability: A Positive Theory on SSRN. Here is the abstract:
    In a large number of products liability lawsuits, sellers assert that plaintiffs' claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or "preempts" state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and the degree of congruence between the regulatory and common law standards.

Conference Announcement: Epistemological Contextualism
    EPISTEMOLOGICAL CONTEXTUALISM Department of Philosophy University of Stirling March 20th-1st, 2004 First Full Conference Announcement LIST OF SPEAKERS Peter Baumann (Aberdeen) Jessica Brown (Bristol) Tony Brueckner (UCSB) Stewart Cohen (Arizona) Keith DeRose (Yale) Neil Gascoigne (East Anglia) Patrick Greenough (St. Andrews) Duncan Pritchard (Stirling) Ralph Wedgwood (Oxford) Timothy Williamson (Oxford) Crispin Wright (St. Andrews & NYU) OVERVIEW Epistemological Contextualism has been one of the dominant research programmes in contemporary epistemology, with the classic papers on this topic by Keith DeRose, Stewart Cohen, David Lewis and others amongst some of the most discussed work in this area of the last thirty years. Primarily, contextualism has attracted philosophers because of the straightforward response that it offers to one very influential formulation of the sceptical paradox. In recent years, however, this thesis has been applied to a number of problems that are outwith the sceptical paradox, such as the Gettier Problem and the Lottery Puzzle. For the most part, the debate regarding contextualism has been driven by philosophers from North America. The aim of this conference is to bring together, for the first time, some of the most prominent philosophers working on contextualism from North America with a group of the leading epistemologists with interests in this area in the UK. This conference is generously sponsored by The Philosophical Quarterly, who will be publishing the proceedings of this event in a special issue. For more details about this conference, go to the conference webpage at: The conference has been timed to coincide with Professor DeRose's visit to the Department of Philosophy at the University of Stirling as a 2004 Scots Philosophical Club Centenary Fellow. For further details about this visit, go to: REGISTRATION The conference will be held at the Stirling Management Centre which is situated on the University of Stirling campus (and which is also an hotel). Delegate numbers for this conference are strictly limited and will be filled on a first-come, first-served basis. Given that interest in this event is expected to be high, prospective delegates are encouraged to register early. The full registration fee is £50, which includes light refreshments on the Saturday afternoon, a buffet lunch on the Sunday, and the conference dinner on the Saturday night (including wine). A reduced registration fee of £40 is available for those who do not wish to attend the conference dinner. A limited number of postgraduate bursaries are available which refund the equivalent of the full conference fee. These will be allocated on a first-come, first-served basis. To register please complete the following form and send it on, with your cheque for the registration fee, to the address below. A copy of this registration form is also available at:

Thursday, August 14, 2003
Is Richard Posner a Marxist? Consider this argument from Scrivener's Error:
    Do the often conservative and occasionally reactionary scholars and judges who subscribe to "law and economics" realize that they're Marxists? At least, they are Marxist in that they accept the underlying assumption of Das Kapital: that economic self-interest is the necessary and sufficient consideration in explaining human group behavior.
Or should we put this point the other way round. Marx, after all, was an economist. And so shouldn't the question be whether the very often left-wing and occasionally revolutionary scholars and judges who subscribe to "Marxism" realize that they're law and econ adherents. At least, they are economists insofar as they accept the underlying assumption of Das Kapital: that economic self-interest is the necessary and sufficient consideration in explaining human group behavior. Update: See this post by Greg Waston.

Gordon on Intellectual Property Wendy Gordon (Boston University) posts 1) Copyright as Tort Law's Mirror Image: 'Harms,' 'Benefits,' and the Uses and Limits of Analogy, and 2) Of Harms and Benefits: Torts, Restitution, and Intellectual Property (forthcoming in the McGeorge Law Review) on SSRN. Here is the abstract:
    This pair of papers involves a reprinting of "Of Harms and Benefits: Torts, Restitution, and Intellectual Property," 21 J. LEGAL STUDIES 449 (1992), along with an introduction to that article for students, entitled "Copyright as Tort's Mirror Image." Both involve comparisons between statutory intellectual property law and common law doctrines. "Copyright as Tort's Mirror" uses personal injury law to introduce students to copyright, making a link between the doctrines through the notion of "externalities." Just as tort law discourages wastefully harmful behavior by making perpetrators bear some of the costs inflicted, copyright law encourages beneficial behavior by enabling authors to capture some of the benefits generated. For persons trained in common law doctrines, therefore, it may be useful to approach copyright law initially as if copyright were tort law upside-down. While a full economic account of copyright needs to go far beyond the tort analogy (to consider factors such as industry structures, the "public goods" character of authorial work, and so on), the analogy to torts can be useful. Notably, it can help students understand some of the reasons why the law puts limitations on copyright. For example, consider the motto, "It takes two to tort," and its lesson that both plaintiffs and defendant may need incentives. In tort, the defense of comparative negligence serves to encourage potential victims to take care; in copyright, rules such as non-ownership of ideas encourage potential follow-on innovators to build on their predecessors. The piece being reprinted, "Of Harms and Benefits," primarily addresses the following puzzle: Why is copyright law more willing to internalize positive externalities than is the common law of restitution? Part of the answer lies in the difference in structure between the paradigmatic cases in restitution and copyright: In restitution, typically P helps a passive D, and then P sues D. In copyright, typically an active D copies from P. The transaction-cost structure and autonomy implications are significantly different in the two contexts. The article also addresses the choice of "carrots" versus "sticks" as sanctions (in restitution, copyright, and personal injury torts), and offers observations on the packaging of rights, and the impact of institutional form (primarily legislature versus judiciary) on substantive rules. Although both articles explore parallels between the ways that law deals with harms and benefits, neither argues that harms and foregone benefits should receive identical legal treatment. Among other things, I suggest, the exchange of non-compensated benefits may breed community in a way that the exchange of non-compensated harms might not: Gratitude is often an easier emotion to achieve than forgiveness.

New Papers on the Net Here is today's roundup:
    Jennifer Hill (Vanderbilt) posts Corporate Criminal Liability in Australia: An Evolving Corporate Governance Technique?, forthcoming in the Journal of Business Law. Here is the abstract:
      The article concerns developments in Australia in an area of law generally treated as peripheral to corporate governance - namely, corporate criminal liability. The article discusses the impact of reforms to corporate criminal liability under Part 2.5 of the Criminal Code, which commenced full operation in Australia in late 2001. Although corporate law in Australia, including directors' duties, adopts an Anglo-US shareholder-centered model of the corporation, Part 2.5 of the Criminal Code adopts an organizational model of the corporation. The reforms constitute a major paradigm shift in corporate criminal liability, and affect a range of important areas, such as competition and consumer law, occupational health and safety and environmental law. The article argues that there appears to be a disjunction between the underlying principles in the area of directors' duties and corporate criminal law in Australia. Under traditional Australian corporate law principles, issues of social responsibility are kept at a distance and directors' duty of oversight in relation to corporate misconduct is limited. In contrast, the new Australian corporate criminal liability regime recognizes concepts of organizational due diligence, organizational blameworthiness and "corporate culture." Under the new paradigm, issues relating to corporate criminal liability will inevitably become more closely integrated at an operational level into corporate governance, as corporations introduce compliance programs to ensure that their "corporate cultures" do not potentially trigger criminal liability. It is possible that these reforms to corporate criminal liability may be more effective than directors' duties in recognizing that directors are ultimately accountable for their corporation's "culture," and have a corresponding obligation to monitor diligently.
    Larry Thompson posts Adrift on a Sea of Uncertainty: Preserving Uniformity in Patent Law Post-Vornado Through Deference to the Federal Circuit. Here is the abstract:
      Congress created the United States Court of Appeals for the Federal Circuit in 1982, and granted that court exclusive appellate jurisdiction over civil actions arising under patent law. Congress's primary goals in creating the Federal Circuit were to produce a more uniform patent jurisprudence and to reduce forum shopping based on favorable patent law. But in the 2002 decision of Holmes Group, Inc. v. Vornado Air Circulation Systems, the Supreme Court held that patent counterclaims alone could not create Federal Circuit jurisdiction. This decision not only overruled the Federal Circuit's longstanding jurisdictional rule, but also opened the door for Regional Circuit Courts of Appeals ("RCCOAs") to decide appeals where patent claims appear only as counterclaims. Because RCCOAs generally do not defer to the decisions of coordinate federal courts (what can be termed the "rule of no deference"), RCCOAs will be able to independently develop patent caselaw - threatening the goals for which the Federal Circuit was created. To date, the scholarly response to Vornado's problems has focused on approaches expanding the Federal Circuit's jurisdiction. Commentators addressing deference to the Federal Circuit's patent precedents have either assumed that deference is impossible or impractical, or have mentioned deference as an option only in passing. No one yet has analyzed in detail the case for deference to the Federal Circuit. This article provides that analysis. It explains why the traditional justifications for the rule of no deference are inapplicable here, why deference to the Federal Circuit serves Congressional intent, and why the reasons for such deference compare favorably to established exceptions to the rule of no deference. The article also suggests a particular scope and level of deference, and explains deference's superiority as a long-term solution over jurisdictional modifications. The article should be particularly useful to practitioners and judges faced with these issues in the short-term, and should facilitate inquiry by legislators and academics into a long-term resolution.
Additional papers of interest:

Conference Announcement: Thinking Through A Collapsing World
    THINKING THROUGH A COLLAPSING WORLD: PATHWAYS TO RECONCILIATION will be held at Conway Hall, London, from September 19th to 21st, 2003. The aim of the event is to bring together people thinking about and working towards local and global reconciliation in order to establish an ongoing framework that allows us to share experiences and to work together. The topics addressed will include: the concepts of 'reconciliation' and 'civil society'; political action, reconciliation and the roles of local and global politics; the problem of terrorism and cultural, political and religious responses to it; and issues of culture, citizenship and democracy. The format will include both lectures and interactive workshops, with ample opportunity for contributions from all the participants. An intended outcome of the meeting is a charter to facilitate ongoing cooperation among groups around the world working for reconciliation. The meeting will be opened by Mary Robinson, former UN High Commissioner for Human Rights. Other speakers will include:
      Alfonso Lingis(Pennsylvania State University, USA); Roberto Unger (Harvard Law School, USA); Hans D'Orville (UNESCO, Paris); Marcus Einfeld (International Commission of Jurists, Australia); Xu Youyu (Chinese Academy of SocialSciences, Beijing, China); Jakob Finci (National Coordinating Committee for the Establishment of the Truth and Reconciliation Commission in Bosnia Herzegovina); Charles Villa-Vincencio (Institute for Justice and Reconciliation, South Africa); Lowitja O'Donaghue (Reconciliation Australia); Tanya Hosch (Australian Indigenous Leadership Centre,Aboriginal & Torres Strait Island Commission, Australia); Chantal Mouffe(University of Westminster, UK); Kersten England (Bradford Council, U.K); Isabel Marcus (University at Buffalo Law School, USA); Azam Kamguian (Committee to Defend Women's Rights in the Middle East); Mojtaba Sadria (Policy Studies, Chuo University, Japan); Pervez Hoodbhoy (Nuclear Physics, Quaid-e-Azam University, Islamabad); Haggith Gor Ziv (Kibbutzim College of Education Center of Critical Pedagogy, Tel Aviv); Joan Anderson (University of British Columbia, Canada); Mary Crewe and Christoff Heyn (Centre for Study of AIDS and Human Rights, Pretoria University, South Africa); Ashis Nandy (Centre for the Study of Developing Societies, New Delhi, India); Ian Campbell (Salvation Army and UNAIDS, United Kingdom); and representatives of many community based groups from around the world.
    For full details of the program and information about registration please see

The Rule of Lawyers Doug Bandow reviews The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law, by Walter K. Olson (St. Martin’s Press, 352 pp., $25.95) on National Review Online. Here is a taste:
    The consequences of the rule of lawyers have been immense: transformation of tort law to make anyone potentially liable for anything; vast wealth transfers from producers to the careless, hypersensitive, irresponsible, and venal; individual businesses, and even whole industries, ruined owing to junk science and legal misconduct; and subversion of the democratic political process as local juries and courts make national political decisions. According to The American Lawyer magazine, tobacco lawyer Wendell Gauthier (explicitly) and many other attorneys (implicitly) see “the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed.”

Wednesday, August 13, 2003
Wennberg on Barnett's Theory of Default Rules Mikko Wennberg (University of Turku - Department of Philosophy) has an interesting paper in 16 Canadian Journal of Law and Jurisprudence (2003) that discusses Randy Barnett's theory of default rules in contract law. Weinberg describes the paper as follows:Weinberg's paper is titled On Barnett's Theory of Default Rules , click on the link for the abstract and further information. BTW, the Canadian Journal of Law and Jurisprudence is available to subscribers only online here.

Judge Moore and the Rule of Law & The New York Times and the Importance of Proof Reading and Fact Checking The New York Times editorializes today on Alabama State Supreme Court Chief Justice Roy Moore, who has yet to comply with a federal district court order to remove the monument to the Ten Commandments that Moore had placed in the Alabama Supreme Court's courthouse:
    The federal Constitution applies to the states, and the federal courts are its ultimate interpreter. Justice Moore's desire to ignore the Constitution's mandates on the separation of church and state has an uncomfortable resemblance to the arguments Gov. George Wallace made when he mounted his stand in the "schoolhouse door" to block blacks from enrolling at the University of Alabama.
Two very quick comments:
    --The New York Times is right. Judge Moore should comply with the federal tiral court's order. To do otherwise, is to substitute his own judgment for the rule of law. If Judge Moore disagrees, he can and should appeal, but it is particularly pernicious for a high state court judge to substitute his private judgmeent for orderly legal process.
    --But who allowed the statement "the federal courts are its ultimate interpreter" to get into print. The United States Supreme Court is the ultimate interpreter of the United States Consititution, but lower federal courts and state courts are equally competent to interpret the United States Constitution. A federal trial court judge or federal appellate panel may not hear appeals from decisions of federal law in state court. (This is the arcane Rooker-Feldman doctrine.) It is true that Judge Moore is bound by the federal trial court injunction in the Ten Commandments monument case, but that is because he is a defendant (or the agent thereof). If the Alabama case had been filed in state rather than federal court, then the lower federal courts would (barring something very unusual) have no jurisdiction to consider whether the Alabama courts were correct on issues of federal law. Finally, in the quoted snipped there is a grammar problem: "courts" is plural and "interpreter" is singular.
And speaking of errors by the New York Times editorial page, check out this post by Eric Muller. Am I imagining things or are elite media outlets becoming progressively more sloppy? (Oh, and by the way, I certainly do not do as well as the New York Times when it comes to typos.)

Leiter on the Philosophical Gourmet Brian Leiter has a very illuminating post on the controversy over The Philosophical Gourmet on his new Blog, The Leiter Reports, Editorials, News, Updates.

McAdams & Nadler on the Expressive Theory of Compliance Richard McAdams (University of Illinois) and Janice Nadler (Northwestern) have posted A Third Model of Legal Compliance: Testing for Expressive Effects in a Hawk/Dove Game on SSRN. Here is their abstract:
    Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. The focal point theory makes three claims: (1) that the need for coordination is pervasive because "mixed motive" games involving coordination model common disputes; (2) that, in such games, any third-party cheap talk that calls the players' attention to a particular equilibrium tends to produce that equilibrium; and (3) that law, by publicly endorsing a particular equilibrium, tends to call the players' attention to that outcome. After explaining the first and third claim, we offer an experimental test of the second. Specifically, we investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome.

New Papers on the Net Here is today's roundup:
    Michael Shumsky (Law Clerk to the Hon. Diarmuid F. O'Scannlain) posts Severability, Inseverability, and the Rule of Law, forthcoming in the Harvard Journal on Legislation. Here is the abstract:
      Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution's separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight. Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court's current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement. With McCain-Feingold poised to arrive shortly at the Supreme Court - and with a sharp division over severability among the special panel's judges - the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development. Keywords: severability, inseverability, separation of powers, McCain-Feingold, Bipartisan Campaign Reform Act, BCRA, statutory interpretation, legislative history, public choice, textualism, dynamic statutory interpretation, dynamic interpretation, judicial review, campaign finance, campaign finance reform, clear statement, constitutional, unconstitutional, Article I, Article III, jurisdiction, legislation, legislative intent, interpretation, statutory interpretation, statutory construction, legislative deal, soft money, hard money, contribution limit, rule of law
    Robert Bird (Seton Hall University - W. Paul Stillman School of Business) posts Rethinking Wrongful Discharge: A Descriptive-Continuum Approach. From the abstract:
      Over two hundred articles have been written critiquing employment at-will and wrongful discharge since 1985. However, little radical change has occurred in state courts on this issue in some time. In spite of strong judicial resistance to modify employment at will, wrongful discharge scholarship is still saturated with normative criticism of the doctrine. Scholarship in this area can deliver a valued benefit if it focuses on understanding wrongful discharge systematically as a coherent body of law. This article adopts a "descriptive-continuum" approach that organizes wrongful discharge law into five distinct and interrelated categories. This article also provides a sequential, systematic method for classifying employer discharges within the broad continuum of wrongful discharge law. Finally, this article uses a case study to highlight the benefits of the descriptive-continuum approach for courts, employers and employees alike.
    Karen Clay (Carnegie Mellon University - H. John Heinz III School of Public Policy and Management) and Gavin Wright (Stanford University - Department of Economics post Order Without Law? Property Rights During the California Gold Rush. From the abstract:
      The paper reconsiders the nature of mining districts and property rights during the California gold rush. According to a widely accepted view advanced by Umbeck (1977, 1981), in the absence of effective legal authority, district codes established secure property rights in mining claims. Drawing on a data set of mining district codes and a simple theoretical model, we argue that the main historical features of mining districts may best be understood by viewing them not as enforcers of private property rights, but as institutions for managing access to a nonrenewable resource, in what was fundamentally an open-access context.
    Kiwi Alejandro Camara (Harvard) posts Shareholder Voting and the Bundling Problem in Corporate Law. From the abstract:
      In this paper, I consider the characteristics, limits and promise of shareholder voting as one of many mechanisms that have evolved to constrain deviance by directors from the maximization of shareholder wealth. Finding the existing menu of control mechanisms imperfect, Professor Lucian Bebchuk and other corporate reformers have suggested an increased power in shareholders to intervene in corporate decisions traditionally reserved to the board of directors. The reformers' primary argument is that, under present law, directors can bundle decisions on unrelated actions, for instance a decision on payment of dividends with a decision on management's continued service, thereby limiting the effectiveness of shareholder voting as a control mechanism. I show that this bundling problem is illusory, offer an alternative explanation of the ineffectiveness of shareholder voting and demonstrate that this alternative explanation undercuts the reformers' policy prescription. I conclude that an increased power of shareholder intervention is unlikely to benefit shareholders.

Call for Papers: BSET
    *CALL FOR PAPERS* *The BRITISH SOCIETY for ETHICAL THEORY* *2004 CONFERENCE* *UNIVERSITY OF KENT, CANTERBURY* *12-14 JULY, 2004* Invited Speakers: Brad Hooker, TBA Papers are invited for the annual conference of the British Society for Ethical Theory, to be held at University of Kent, Canterbury. The subject area is open within metaethics and normative ethics. Papers on topics in applied ethics or the history of ethics may also be considered provided they are also of wider theoretical interest. Papers, which should be unpublished at the time of submission, should be in English, no longer than 6500 words, readable in at most 45 minutes and in a form suitable for blind review. Please tell us if you are a postgraduate student. Submissions from postgraduates are encouraged as our aim is that some such should be represented at the conference. Those who submitted papers for our previous conferences - successfully or otherwise - are welcome to submit again (though not of course the same papers!). Selected conference papers will be published in the journal "Ethical Theory and Moral Practice". Please make clear in any covering letter or email whether you want your paper considered for publication here as well as for the conference programme. The deadline for submissions is 8th December 2003. Papers should be received by this date (i.e. it is NOT a postmark deadline). *We prefer papers to be sent electronically.* Please send papers by attachment to:
    Alternatively, please send two paper copies, plus disk with paper in Word format, to:
      Dr Simon Kirchin, Department of Philosophy, University of Bristol, 9 Woodland Road, Bristol, BS8 1TB, UK
    For either format, please also give details of name, address (elctronic and postal), and academic affiliation. These details should be separate from the paper (that is, given on a separate sheet or email depending on format). **Please do NOT send papers to University of Kent.** Further particulars regarding registration will be available in due course from Dr Nafsika Athanassoulis, Medical Education Unit, Worsley Building, University of Leeds, UK, to whom any inquiries should be addressed. Simon Kirchin

Conference on the Philosophy of Need
    Royal Institute of Philosophy Conference 26-28 September 2003, Durham The Philosophy of Need Speakers:
      David Wiggins Gillian Brock Sabina Alkire David Braybrooke Jonathan Lowe John O’Neill Christopher Rowe Garrett Thomson Bill Wringe Lawrence Hamilton Rita Alfonso Sarah Miller
    The concept of need plays a significant but relatively unexplored role in philosophy. In ethics, questions include what needs are, whether and how they are normative, and how they are related to other states like desires, preferences, interests and capabilities. In logic and metaphysics, an analysis of the concept of need may assist in the explication of logical and metaphysical necessity. In political philosophy, the question of whether needs-meeting is the proper goal of distributive policy remains unresolved. The aim of this conference is to increase our understanding of the role the concept plays in each area, and to see how these different areas are connected. Papers will be presented in themed sessions including: the indispensability of need, the politics of need, the logic and metaphysics of need, need in ancient and modern philosophy, and need among thin moral concepts. The programme will provide time for workshops, private discussions, and exploring Durham, which is a beautiful small city in the north east of England, with a magnificent Norman cathedral, meandering River Wear, and historically important Castle. The conference will be held at Hatfield, ne of the older colleges on the peninsula. There will be a drinks reception and conference dinner on Friday 26th September. Registration Registration (includes tea/coffee and set of papers): £50 (Academic) £20 (Student/unemployed) Accommodation and meals at Hatfield College (includes accommodation on Friday and Saturday, breakfast on Saturday and Sunday, lunch on Saturday and Sunday, conference dinner with wine on Friday, and dinner on Saturday): £100 (en-suite if available: add £15) Accommodation on Sunday night: £25 Subsidies are available for graduate students, and may be available to others without institutional support. Support for those needing to arrange dependents’ care may be available, and wheelchair access can be arranged. Registration by e-mail is preferred. Please write to: giving details of your requirements, and including any subsidy request. Please then send payment (cheques payable to: Durham Philosophy Conference) by letter including printout of e-mail registration to: Dr Soran Reader Department of Philosophy University of Durham 50 Old Elvet Durham DH1 3HN PLEASE REGISTER BEFORE FRIDAY SEPTEMBER 5TH 2003.

Tuesday, August 12, 2003
Do Humans Have Character Traits? A Comment on Situationalism, Moral Psychology, and Legal Theory
    Introduction Lawrence Blum has a review of John Doris's book which is titled Lack of Character: Personality and Moral Behavior on Notre Dame Philosophical Reviews (The first chapter of Doris's book is available as a free download here). Doris’s book is an important contribution to moral psychology, drawing on work by social psychologists to undermine philosophical theories of character in general and the virtues in particular. In a nutshell, Doris’s aim is to show that experimental evidence establishes that human behavior is more determined by situation that by character and that there is very little empirical evidence for robust character traits, such as courage, temperance, or justice. Doris’s work is the most comprehensive philosophical version of this argument, but others, including Gilbert Harman and Owen Flanagan, have also explored these topics. For ease of reference, let’s loosely define situationalism as the view that situation rather than character is more causally potent in determining human behavior than is character. Similarly, let’s use the ugly neologism characterism to stand for the view that character traits do important explanatory work. What follows is an overview of some of the issues raised by the social psychology research on character and situation--but not a review of Doris's book.
    Why Legal Theorists Should Care Why should legal theorists care about situationalism? Let’s simply list a variety of reasons for caring about the situationalism/characterism debate in the context of law:
      --Rules of Evidence. Typically, the rules of evidence prevent the prosecution in a criminal trial from introducing evidence of bad character and particularly of prior criminal acts by the defendant. If situationalism is true, then these exclusionary rules might well be shown consistent with the accuracy goal of the evidence law.
      --Theories of Punishment. Explaining the normative basis for punishment is a central topic for legal theory. Theories of criminal punishment interact in various ways with moral psychology. If situationalism is true, there may well be implications for our views about when and why punishment is appropriate.
      --Morality and General Jurisprudence. More generally, our views about morality will affect our views about the law in a variety of ways—direct and indirect. One way to divide up the universe of moral theories suggests that they can be categorized as belonging to the following three groups:
        ++Consequentialist Theories, such as utilitarianism and welfarism, which hold that the rightness or wrongness of an action depends on the goodness or badness of the states of affairs to which the action leads.
        ++Deontological Theories, such as Kant’s theory or Scanlon’s contractarianism, which hold that the rightness or wrongness (permissibility or impermissibility) of an action depends on its conformity with a set of moral rules.
        ++Aretaic Theories, such as Aristotle’s theory or contemporary virtue ethics, which make the cultivation of human excellence, rather than the performance of right-actions or the production of good consequences, the central them for moral theory.
      General jurisprudence is, to some extent, independent of disputes about moral theory, but legal theorists frequently see connections between normative questions about the content of the law and deeper issues about moral theory. Perhaps the most famous example in recent years in Louis Kaplow and Steven Shavell's famous (infamous?) book, Fairness versus Welfare--which argues that welfarism ( a variety of consequentialism) is the correct theory of political morality and that this has multitudinous implications for legal theory. Deontologists are likely to argue that the aim of law is to protect autonomy or liberty. Similarly aretaic theories of morality and politics are usually associated with the view that the aim of the law is to faciliate human flourishing in general and the development of virtue in particular.
      How does this connect to the situationalist/characterist debate? Let me assert (with breathtaking oversimplification), that the correctness of situationalism (in a strong form) would be fatal to aretaic moral theories and damaging to deontological theories. I've only scratched the surface, but I hope I've said enough to convince you that legal theorists should care about Doris's book and the wider debate it represents.
    Situationalism Situationalism is the view that situations rather than character do most of the work in explaining human behavior. Situationalism is rooted in social psychology, and there is a long and complex story to tell about its historical roots. Once again, I must be your indulgence for simplifying, but that story goes something like this. Psychologists had once posited a simple explanation for the fact that in a given situation, some people will lie and others will not, some will steal and others will not, some will cheat and others will not. That simply explanation was based on the idea of dispositional personality trait. Some people were liars, thiefs, and cheats. Others were honest. Studies were done, and they failed to provide strong confirmation for the simple, personality trait theory. One famous experiment took children and put them in a variety of situations that tested honesty--an opportunity to take some spare change left in a public place, an opportunity to cheat on a test, and so forth. Atlhough the experiments revealed intrasituational consistency--take the change on one occasion and then take it again on another occasion--they did not show strong intersituational consistency--test cheating was not strongly correlated with change taking.
    Another line of research led to the identification of what is called the fundamental attribution error. This line of research investigates what we might call folk social psychology, i.e. what ordinary folks believed about the causes of human behavior. The research revealed that there is a strong tendency to attribute behavior to character traits rather than to situations.
    Most legal theorists have at least a second-hand acquaintance with situationalism. One possible upshot of situationalism is that criminals are not "bad people;" rather, bad acts result when ordinary people are put in situations which elicit criminal behavior. Thus, situationalism provides support for consequentialist theories of punishment--crudely, left situationalists favor rehabilitation and right situationalists favor deterrence and incapacitation. But most situationalists would agree that neither retribution nor desert can provide the underlying justification for punishment. Of course, the broad sketch in this paragraph is vastly oversimplified.
    Aretaic Moral Theory and Situationalism Aretaic moral theories are focused on human excellence; they are virtue-centered. They take the virtues as the primarly (but not the exlusive) locus of morality. We might use Aristotle's theory as an illustration, bearing in mind that philosophers debate the question whether Aristotle's theory is properly understood as aretaic in the sense that I have specified. Aristotle argued that eudaimonia (happiness) is the highest humanly achievable good, and that eudaimonia was constituted by a life lived in accord with the human excellence or virtues. Aristotle classified these in two groups. The moral virtues, such as courage, temperance, and good-temper (proates) were understood as connected with the emotions. Courage, for example, is related to fear. The courageous human is disposed to fear that is appropriate to the situation. Thus, courage can be defined as the mean between two vices (defects): cowardice (the disposition to too much fear for the situation) and rashness (the disposition to too little). The intellectual virtues were sophia (theoretical wisdom) and phronesis (practical wisdom). Obviously, in a single paragraph I haven't even come close to adequately summarizing Aristotle's view, but that will have to do for now.
    How does situationalism pose a threat to aretaic moral theories? You, gentle reader, have undoubtedly run ahead of me by this point. Situationalism is really a family of views, with stronger and weaker forms. Let's define strong situationalism as the view that no humans have stable intersituational dispositional traits. If strong situationalism is true, then there is no such thing as a courageous human or a good-tempered human--the are no virtuous men or women. Likewise, it also follows from strong situationalism that there are no cowardly humans and no ill-tempered humans--there are no vicious women or men. If strong situationalism is true, then the "coward" is a social myth--not unlike the "witch." Of even greater interest to legal theory, there are no "bad guys" or "good guys" only bad situations and good situations. Virtue-centered moral theory would rest on a mistaken belief in virtues.
    The Milgram Experiments I assume that almost everyone who reads Legal Theory Blog will be familiar with Milgram's famous experiments. Here is a brief description:
      In response to a newspaper ad offering $4.50 for one hour's work, an individual turns up to take part in a Psychology experiment investigating memory and learning. He is introduced to a stern looking experimenter in a white coat and a rather pleasant and friendly co-subject. The experimenter explains that the experiment will look into the role of punishment in learning, and that one will be the "teacher" and one will be the "learner." Lots are drawn to determine roles, and it is decided that the individual who answered the ad will become the "teacher." Your co-subject is taken to a room where he is strapped in a chair to prevent movement and an electrode is placed on his arm. Next, the "teacher" is taken to an adjoining room which contains a generator. The "teacher" is instructed to read a list of two word pairs and ask the "learner" to read them back. If the "learner" gets the answer correct, then they move on to the next word. If the answer is incorrect, the "teacher" is supposed to shock the "learner" starting at 15 volts. The generator has 30 switches in 15 volt increments, each is labeled with a voltage ranging from 15 up to 450 volts. Each switch also has a rating, ranging from "slight shock" to "danger: severe shock". The final two switches are labeled "XXX". The "teacher" automatically is supposed to increase the shock each time the "learner" misses a word in the list. Although the "teacher" thought that he/she was administering shocks to the "learner", the "learner" is actually a student or an actor who is never actually harmed. (The drawing of lots was rigged, so that the actor would always end up as the "learner.") At times, the worried "teachers" questioned the experimenter, asking who was responsible for any harmful effects resulting from shocking the learner at such a high level. Upon receiving the answer that the experimenter assumed full responsibility, teachers seemed to accept the response and continue shocking, even though some were obviously extremely uncomfortable in doing so.
    Although Milgram's experiments were not designed to test the hypothesis that humans have character traits, they are nonetheless frequently cited in debates over this issue, because they seem to indicate that a certain kind of human excellence is very rare. (For Milgram's book, go here.) The fact that many or most of us would torture the innocent is take as providing some evidence for situationalism.
    Assessing Situationalism Does the social psychology research on situationalism pose a threat to the view that human beings have character traits? This is obviously a large question. My aim here is simply to point towards some relevant considerations. Let's begin with the way the ordinary people think about character.
      Folk Psychology Folk psychology is simply the beliefs about human psychology that are embedded in our culture. And the folk psychological view is that humans have character traits. Here is the way that S.J. Burrow put it in her review of Doris's book:
        Character plays a large part in our assessment of others: Pat is decidedly argumentative, Tish is patient, Jerome is shy. Such assessment is useful as a heuristic for explaining and predicting the actions of others: Tish will successfully cope with delays in traffic while Jerome won’t easily start conversations with strangers.
      Most (almost all?) readers of this blog ascribe character traits to their friends and colleagues. One would think, therefore, that the weight of the evidence is against strong situationalism. But this is where the fundamental attribution error comes into play. Social psychologists have convincing demonstrated that we humans have a consistent tendancy to overestimate the role of character in determining human behavior. So perhaps folk psychology and common sense are simply in error.
      Problems with the Research There are, however, a variety of problems with the research cited in support of situationalism. Here are a few:
        --Failure to Define Situation. Lawrence Blum, in his review of Doris's book, notes that a very basic problem with much of the research--the failure to give any adequate definition of "situation." But if we do not know what counts as a situation, it is difficult to make sense of the hypothesis that situation rather than charcter explains behavior.
        --Ambiguous Notion of Character Trait. In order to determine whether or not there are character traits, we would need to know what a charcter trait is. Aristotle, for example, has a theory of psychology of the virtues--which he theorizes are dispositions with respect to morally neutral emotions, such as fear. Much of the research that Doris investigates, however, simply plucks supposed character traits out of thin air. "Honesty," for example, is the character trait investigated by one prominent line of research, but Aristotle's theory of the virtues would not include "honesty" as a virtue--because it is not a mean with respect to an emotion.
        --Children as Subjects. Some of the most interesting experiments that seem to show a lack of intersituational character traits were performed on children, but some theories of character development would not predict that children would have developed consistent characters.
        --Information Impoverished Experimental Designs With respect to the fundamental attribution error, there is another, particularly interesting, problem with the research. Not unexpectedly, many of the FAE experiments are simple, one-shot, situations. You are asked to rate the skill of basketball players after seeing them play once, and with little information provided about the situational variables.
      Theoretical Incompleteness "Situationalism" is sometimes offered as a theoretical rival to "characterism," but as a theory of human behavior, "situationalism" is radically incomplete. It is obvious that human behavior is not wholly determined by situations. Indeed, the view that situations wholly determine human behavior is obviously false. Bricks, dogs, and wheelbarrels behave nothing like humans when placed in similar situations. Rather, sympathetically understood, situationalism is the view that human psychological makeup interacts with situations to produce behavior. Of course, stated in this way, situationalism does not compete with characterism. So the situationalist hypothesis might be that human psychological makeup is uniform, with no variation between individuals. But once again, this hypothesis is radically implausible, because it is manifestly the case that human behavior differs enormously, given relevantly similar situations. So the situationalist might hypothesize that these differences are essentially random, but, of course, this move is really an evasion of the issue, because it does not offer an explanation at all. As a theory, situationalism is incomplete--it really doesn't offer an explanation of human behavior that would compete with characterism.
      Let me be clear. This very brief discussion is hardly adequate in any way. I certainly don't want you to be convinced on the basis of what I say here that situationalism is wrong. My goal is very modest. I only want to convey a sense of the issues.
      The Fundamental Attribution Error Again This brings me back to common sense and folk psychology. Does the "fundamental attribution error" really undermine our folk psychological belief in character traits? I can't do this question justice here, but I do have a strong hunch. I've read both primary and secondary accounds of much of the fundamental attribution error research. Most of the experiments involve situations in which the experimental subjects are given very little information about a situation, and then show a tendancy to attribute behavioral differences to character (or other traits of the subjects) rather than to situational variables. But our beliefs about human character were not formed in circumstances like thse. Our beliefs about character are formed in informationally rich environments in which we observe the same individuals and thier situations for hours, days, weeks, months, and years.
      One experiment cited in favor of the fundamental attribution error illustrates the danger of overgeneralizing from this research. In this experiment, basketball players performed in two different situations--low light and normal light. Experimental subjects attributed the differences in performance to the quality of the players rather than the situation. This was an error. But from that error, should we draw the conclusion that differences in basketball performance between players can be explained by situational variables rather than by differences in player skills? Obviously not. Both situation and skill have explanatory roles. Indeed, situation and skill interact to produce player performance in basketball. But the fact that experimental subjects sometimes fail to understand the importance of a particular situational variable (lighting conditions) tells us almost nothing about the question whether basketball players have different ability levels that explain differences in their performance. Indeed, real basketball games are played under conditions that are carefully designed to eliminate most situational variables associated with playing conditions. Not all, of course. The home court advantage is part of the game, and I suspect that any knowledgable fan would be able to identify the influence of this variable. (It's pretty obvious in the statistics.)
      Are there differences in basketball preformance that are caused by traits rather than situations? Of course! A randomly selected team of high school players will lose to a randomly selected team of NBA players almost 100% of the time, and this result will hold under a variety of situations, so long as both teams have an adequate incentive to win the game. (If you don't believe this hypo, how about a randomly selected team of law professors?) The NBA players are better. Their skills, abilities, and conditioning explain why they play better than the randomly selected high school players. Situational variables do almost none of the explanatory work. And this is true, even thought a cleverly designed experiment can elicit the so-called "fundamental attribution error" with respect to basketball performance. Likewise, the fact that the fundamental attribution error can be elicited with respect to character traits does not show that character traits do not exist.
    Conclusion So what is my conclusion? Frankly, I'm just not sure. My impression is that a good deal of the psychology research is simply not directed at the questions that are interesting to legal theorists. Having read quite a bit, I am quite sure that many of the researchers have committed a variety of errors in drawing conclusions from their research. However, I am also fairly sure that many of our folk psychological beliefs about character have not been confirmed by research. And it is not clear to me that the kind of research that would be required to test a really robust theory of character is feasible (or ethical). But I am quite sure of one thing. John Doris's book has raised important issues that philosophers and legal theorists need to ponder.
    Links and Resources And finally, my own paper, Virtue Jurisprudence: A Virtue-Centered Theory of Judging.

More on Hamilton Surf on over to Three Years of Hell for Anthony Rickey's critique of Hamilton's Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do. My post from yesterday on the same topic is here.

Tribe on Bush v. Gore Laurence Tribe (Harvard) has posted two papers relating to Bush v. Gore on SSRN. The first is titled The Unbearable Wrongness of Bush v. Gore. Here is the abstract:
    Professor Lund is virtually alone in defending not only the Supreme Court's equal protection rationale in Bush v. Gore, but also the Court's startling decision to shut down the Florida recount process and thereby foreclose any opportunity for the State of Florida to actually implement the equal protection principles the Court purported to be enforcing. Professor Lund even characterizes Bush v. Gore as "simply not a close case." If the case was not close, the reasons are not those Lund so cavalierly assays. Part I defends my argument that the Court's per curiam opinion cannot be grounded in any previously recognizable form of equal protection doctrine. Professor Lund's argument to the contrary is that Bush v. Gore was but a logical extension of the "one-person, one-vote" jurisprudence illustrated by Reynolds v. Sims. He relies almost exclusively on the statement in Reynolds that the Constitution forbids weighting "votes of citizens differently, by any method or means." Professor Lund (conveniently unwilling to embrace this principle as a proper reading of the Equal Protection Clause) treats this statement as establishing a precedent so sweeping and amorphous that it cannot be taken seriously, particularly in the context of ballot counting. Professor Lund apparently would extrapolate the statement to encompass virtually all disparities, not only between classes of voters, but among methods of recording and tallying votes and interpreting ballots. Far from a "disinterested" analysis, this absurdly literal fidelity to "one ballot, one vote" is the essence of jurisprudence by slogan. Any coherent approach to "one-person, one-vote" must incorporate a structural theory of how votes should be aggregated. Nothing in Reynolds or any other case suggests that a state cannot be selective in deciding which types of ballot errors are worth recounting in a particular circumstance, subject only to a requirement of rationality. Bush v. Gore did not involve a problem of valuing or weighing some votes more than others, much less deliberately packing or diluting groups of voters, but instead involved the obviously distinct problem of differentially treating ballots as evidence of votes. The Florida Supreme Court's remedy did nothing to alter the manner in which legally cast votes were weighed in the overall state scheme to choose presidential electors. At most, the scheme created the possibility that different standards would be used for determining what constituted a legal vote. But the much maligned "intent of the voter" standard on its face treated all voters equally. It was only in the application of that standard that equal protection violations could have arisen - and even those violations were correctable under the supervision of a single, impartial state judge. Thus, even if the Florida Supreme Court's plan for a statewide recounting of ballots to discern voters' intent could be said to have launched a scheme under which the "weight" of some votes cast in Florida would in some sense be less than the "weight" of others, that would not by itself describe the sort of deviation that would suffice to invalidate - either conclusively or presumptively - a scheme designed to ensure the legality and completeness of the total vote count. Strikingly, under the Court's own equal protection theory, the vote count previously certified in Florida - a tally that, because of the Court's decision to stop the recount in its tracks, effectively determined the outcome of a Presidential election - would itself be a manifest denial of equal protection, in light of the many votes that remained uncounted, and the undisputed fact (common to virtually every statewide method of voting and manner of tallying votes) that the voting process and the vote-count itself included a dizzying array of arbitrary and/or easily correctable inequalities. I argue that the Court's failure to grapple with the underlying equal protection issues, or to grasp the breathtaking implications of its equal protection holding (including the inconsistency between that holding and the outcome that it endorsed in Florida itself), evince the almost embarrassing bankruptcy of the rationale that the Court's majority adopted and that Professor Lund defends. Part II argues that Bush v. Gore presented a question that most likely never should have been decided by a federal court. Properly applied, justiciability is inextricably linked both with the institutional context in which judicial intervention is sought (including the remedial character such intervention would have to take) and with the substantive constitutional principles that undergird the allegedly "political" question at issue. Unless it is demonstrable that the political and administrative process itself is so structured that the political branches cannot be trusted to abide by constitutional norms preventing an impermissible form of exclusion or dilution of an identifiable individual's or group's rights of political participation without adequate opportunity for timely correction within the process itself, the case for judicial intervention that pretermits the political process is extremely weak. There is thus a strong connection between the veritable culture shock set off by the Supreme Court's intervention in the presidential election of 2000 and the proper characterization of the Court's action as a violation of the implicit "political process" doctrine that has governed our national life without much interruption from the outset. The structure of the Florida Supreme Court's recount order of December 8, including the role it assigned to the state court judge in addressing alleged inequalities, left open numerous avenues for correcting procedural inequities in ballot counting. And the alleged inequities were so complicated and so attenuated that to argue that the U.S. Supreme Court had before it a completed constitutional harm notwithstanding what the Florida courts and legislature, followed by Congress, might have done, seems bizarre.
Tribe has a second paper, Lost at the Equal Protection Carnival: Nelson Lund's Carnival of Mirrors, responding to a paper already blogged below.

Monday, August 11, 2003
Yoo and Prakash on the Origins of Judicial Review John Yoo (U.C. Berkely) and Saikrishna Prakash (University of San Diego) have posted The Origins of Judicial Review (forthcoming in the University of Chicago Law Review) on SSRN. Here is the abstract:
    This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation. In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.

Novak on Religion and Judicial Selection Robert Novak has a column on the role of religion in the judicial selection process over at Here is a taste:
    At the center of this increasingly noisome debate is the aggressive Sen. Charles Schumer. Elected from New York in 1998 by ousting Republican Alfonse D'Amato in a tumultuous campaign, Schumer has grown in confidence and assertiveness as he nears virtually unopposed re-election next year with a massive war chest. Sen. Edward M. Kennedy is the backroom mastermind of the Democratic judicial strategy, but Schumer is its point man. It is he who has taken the debate into previously forbidden religious territory. On May 1 in a Senate Judiciary Committee session, Schumer raised religious questions in connection with the nomination of lawyer J. Leon Holmes as district judge from Arkansas. Holmes has the support of his state's two Democratic senators, but not Chuck Schumer. The New Yorker argued that the conservative religious views of Holmes, a devout Catholic, disqualified him because of disagreements interpreting the separation of church and state. Schumer contended that "religious beliefs cannot dictate government policy, even though they can infuse our values." That was preparation for Schumer's opposition to Alabama Attorney General Bill Pryor for the appellate bench, another conservative Catholic who is the most recent of the filibustered Bush nominees. In the Judiciary Committee June 11, Schumer said Pryor's beliefs "are so well known, so deeply held that it's very hard to believe that they're not going to influence" him on the bench. Sen. Dianne Feinstein of California, another Judiciary member, also has cited the "deeply held beliefs" standard.

Copynorms and Deterrence
    Copynorms are informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
    Introduction Marci Hamilton has a thoughtful piece on Findlaw entitled Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do. Here is an excerpt:
      While technology did tend to facilitate illegal downloading, it did not pose infinite obstacles to figuring out who was committing these copyright crimes; universities and ISPs alike tracked their users in certain ways. Although the industry will continue to work on improving the technological protection for works on the web, for now, the courts will serve them quite well. That goes to show that, with respect to copyright, new rules are not needed; just enforcement of the old. We were never living in a true legal vacuum, as the "Information Wants to Be Free" contingent suggested; we were living in an enforcement vacuum instead, and that is now changing, as violators are being hunted down. Even the hunt itself has had a chilling effect. Knowing that one is committing a crime, and may be caught, is scary indeed. Students will back off of illegal copying once they learn that the free ride was an illusion; and if they don't, many parents will step in to ensure that their children don't earn a criminal record along with their college diploma.
    Before I go any further, I should make two points. First, I am in favor of copyright laws--although I think that current copyright terms are clearly excessive. Second, I believe that illegal music downloading is wrong; a virtuous citizen obeys the laws even when she disagrees with their correctness--except in extreme cases.
    File Sharing and Shoplifting I am not so sure that Hamilton is right when she argues that the music industry should sue college students for illegal music downloading. Her argument depends on the proposition that the RIAA's campaign of civil litigation against file sharing will have a substantial deterrence effect. She supports that argument with an analogy between shoplifting and music downloading. Here is the crucial passage:
      The more seriously society takes shoplifting, the more shoplifters will be deterred. The same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at stake, and only a scintilla of students are hardened criminals. Like the thrill of shoplifting, the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real risk of getting caught. Of course, technological "locks" won't be perfect, and some level of crime will remain. But here, again, the shoplifting analogy is instructive. Stores do not lock up every item they offer to prevent shoplifting. Instead, they post signs saying shoplifting is a crime, monitor their customers, and press charges against individual shoplifters. Despite all this, retail stores have had to build into their profit picture losses that will result from undetected shoplifting.
    But there is a real difference between the two. Although a pro-shoplifting ethic may emerge from time to time in isolated social groups and many children and teenagers may fail to appreciate nature of shoplifting, the incidence of shoplifting never even comes close to approaching the incidence of music downloading. Most shoplifters are dysfunctional individuals or persons in distressed circumstances. Why? Because there are strong social norms against theft of traditional property.
    Copynorms But the norms against unauthorized copying of music have broken down, or maybe they never existed in the first place. Again, why? One source of the breakdown is the manifest legality of similar copying. After the Supreme Court's decision in the Betamax case, most lawyers and certainly most lay people believe that copying television programs for personal use is legal. The Audio Home Recording Act includes a provision that makes analogy copying of music recordings virtually legal; you cannot be sued for making an analog compilation tape of copyrighted music.
    And the average music downloader understands that if you shoplift or steal a CD, you deprive the owner of the use of the CD. But copying an MP3 files does not have the same effect. Economists would describe this difference using the concept of rival versus nonrival consumption. The social norm against theft of tangible property is supported by widespread understanding of the purpose of law's against theft. But the general public does not seem to have a similar grasp of the underlying rationale for copyright laws.
    Can deterrence alone do the trick? Society would be hard put to invest enough resources in shoplifting prosecutions if ordinary, normally law-abiding citizens calculated the expected utilities of shoplifting in light of the likelihood of getting caught. As experience with alcohol and drug prohibition makes abundantly clear, deterrence is neither sufficient for the alteration of behavior nor the creation of social norms--where ordinary citizens do not regard the law itself as a reason for refraining from the prohibited conduct. (Things would be different in a police state.) Oh, and by the way, I think Hamilton is completely out of touch if she thinks that thrills are a significant motivating factor for any significant number of music downloaders.
    The RIAA's Litigation Campaign and Deterrence The RIAA plans to bring hundreds of lawsuits against those who post large numbers of MP3 files for downloading. Will 500 lawsuits create a realistic threat of prosecution for 50 million users of file sharing programs? Assuming perfect information, the risk of prosecution is about one in one-hundred thousand. A far lower risk than that of being prosecuted for marijuana usage or underage drinking. Moreover, those who share only a few dozen files or download but do not share are likely to know that their chance of being caught is much less than one in one-hundred thousand. Indeed, their risk chance of being named as a civil defendant is functionally zero. Their risk of being named as a criminal defendant is actually zero.
    Backlash The RIAA's decision to file hundreds of lawsuits against those who share MP3 files is not likely to have a substantial deterrent effect, but it may have other effects. In particular, it may well create further animosity towards the music industry--especially if the accompanying public relations campaign is poorly handled. And such hostility may prevent rather than enhance the emergence of copynorms. Read Hamilton's interesting piece!

Recall Resources Interest in the California recall is sure to increase now that Arnold has entered the race. Although the legal theorist is not sure this interest is healthy, I do want to call your attention to two important resources. The first is the amazing Election Law Blog by Professor Rick Hasen, the real thing when it comes to expertise on election law. The second is a blog called California Insider by Sacramento Bee reporter/columnist Daniel Weintraub, who is the real thing when it comes to expertise on California politics. Is there a legal theory angle on the recall? Honestly, I don't think there is. I can see some interesting arguments about the question as to what standard a voter should adopt for recall as a matter of political morality. One is inclined to think that the standard should be higher than simply, "I prefer the candidate likely to be selected in the recall election." But my, ill-informed, opinion is that almost everyone who votes for recall will, in fact, be adopting a much higher standard.

Horwitz on Freedom of Speech Paul Horwitz (University of San Diego) has posted Free Speech As Risk Analysis: Heuristics, Biases, and Institutions in the First Amendment (forthcoming Temple Law Review) on SSRN. Here is the abstract:
    What does behavioral analysis of law have to offer First Amendment doctrine? This Article offers some tentative answers to that question. A great deal of First Amendment law asks whether the risk of harm stemming from particular speech acts can justify the regulation of that speech. We may, in short, think of First Amendment law as a species of risk analysis. Looking at free speech issues through the lens of behavioral analysis of law may help us to better understand, evaluate and improve the courts' approach to recurring problems in the First Amendment. This Article focuses on two such issues. First, it examines the development of First Amendment doctrine relating to illegal advocacy, from its modern roots in the "clear and present danger" test to the emergence of the currently prevailing test in Brandenburg v. Ohio. Viewed from the vantage point of behavioral analysis of law, this development is a success story. Illegal advocacy doctrine initially required triers of fact to make a probabilistic assessment of the risk of harm flowing from speech, but failed to account for cognitive shortcomings that could lead triers to overestimate the actual likelihood of harm. An examination of that doctrine's development, however, suggests that over time, the courts have developed an approach that erects appropriate safeguards against those cognitive failings. By contrast, this Article portrays the development of commercial speech doctrine as a departure from the insights of behavioral analysis. By hewing closely to a classical model of rationality and urging a strongly anti-paternalistic approach to commercial speech, the courts have failed to account for the judgment-distorting effects of advertising. Whatever shape doctrine in this area ought to take, it must at least begin to acknowledge and respond to these concerns. Necessarily wedded to this Article's positive analysis of First Amendment doctrine is the question of institutional choice. This Article thus asks two recurring questions: (1) how do we craft First Amendment rules that appropriately measure the extent of the risk generated by particular speech acts; and (2) given the varying degree to which different players in the system of free speech - judges, juries, legislators, and regulators - suffer from particular cognitive shortcomings, which institution should be assigned the ultimate decision-making role? The Article suggests that the answer to these questions may vary across a range of First Amendment issues. Keywords: first amendment; freedom of speech; behavioral analysis of law; heuristics and biases; availability heuristic; illegal advocacy; schenck; dennis; brandenburg; commercial speech

Oversimplified Brad DeLong (whose blog I much admire) posts the following:
    The Washington Post's Al Kamen on yet another misrepresentation of his views from Clarence Thomas:
      No Justice for All ( But that doesn't mean justices can't mature on the bench. Take, for example, Justice Clarence Thomas. During his confirmation hearings 12 years ago, Senate Democrats grilled him for his views on a constitutionally protected right to privacy. Under questioning from Sen. Joseph R. Biden Jr. (D-Del.), Thomas said that his "view is that there is a right to privacy in the 14th Amendment." Former senator Dennis DeConcini (D-Ariz.), a key moderate, focused on the issue in a floor speech announcing his support for Thomas. "This is a very important point," DeConcini said. "I was also pleased to hear that Judge Thomas agrees that the fundamental right to privacy also extends to non-married individuals. He repeatedly stated that he agreed with the Supreme Court's leading precedent in this area," which "extended the right to privacy stated in" Griswold v. Connecticut, a case dealing with the right of married couples to buy contraceptives. DeConcini, a Judiciary Committee moderate, was a critical swing vote in the 52 to 48 confirmation vote for Thomas. But in the court's ruling in June striking down anti-sodomy laws, Thomas dissented, saying: "And just like Justice Stewart, I 'can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,' " quoting Potter Stewart's dissent in the Griswold case.
DeLong says "misrepresenation of his views from Clarence Thomas." Twelve years passed between the two statements. Clarence Thomas also was placed in a new role and was, because of that role, required to confront the issue with a new seriousness. Given these circumstance, there is simply no basis for a charge of misrepresentation. What was DeLong thinking?

Poison Pills Law students are likely to be especially interested in this hypothetical posed by Will Baude. Follow the links for lot's of fun.

Terrorism for Humanity? I have probably just been out of the loop, but I only recently discovered the controversy concerning Ted Honderich's forthcoming book on terrorism. Honderich is arguing for the morality of Palestinian terrorism--a position that is sure to be controversial. Here is a lecture version of its thesis. I see the issues surrounding Israel and the Palestinians as terribly difficulty, and hardly feel qualified to render any sort of opinion. But I find Honderich's lecture quite odd. Does anyone else find his writing terribly disjointed and unclear, especially given his reputation as a philosopher?

Strnad on the Deflationary Effects of the Income Tax The supersmart James (Jeff) Strnad (Stanford) has uploaded a paper entitled Deflation and the Income Tax to SSRN. Here is the abstract:
    The extensive literature on inflation and the income tax shows that a tax-system based on nominal costs and revenues may result in considerable distortion even at moderate degrees of inflation. Much of this distortion arises from the use of unindexed historical cost to compute taxes for items such as depreciable assets, inventories, and capital gains. This approach results in over-taxation and consequent increases in the cost of capital. It is tempting, but mistaken, to think that a deflationary environment involves the same phenomena but with the signs reversed. As inflation falls and turns into deflation, the impacts on items subject to historical cost accounting change continuously but only up the point where deflation reaches the "zero bound rate," the rate at which nominal riskless interest rates fall to zero. For perpetual rates of deflation equal or greater than the zero bound rate, any tax system that allows full recovery of nominal costs and provides for full taxation of nominal gains becomes equivalent to a cash flow income tax regardless of the timing for cost recovery specified by the tax system. No distortions arise from historical cost accounting or other timing rules in the tax system. The zero bound rate serves as a discontinuity with respect to the interaction of many features of the tax system with inflation or deflation. Above that rate, the cost of capital for depreciable assets falls as the inflation rate falls. Below that rate, the opposite occurs: The cost of capital increases as deflation intensifies. Similar discontinuities occur at the zero bound rate for the tax treatment of debt and the impact of loss limitations. Above the zero bound rate, certain factors in the tax system tend to make the impact of inflation less than one-to-one on the cost of debt for borrowers. Below the zero bound rate, there is a one-to-one effect. Loss limitation effects for new investments intensify as inflation falls, but this effect stops once the zero bound rate is reached. Given the current stance of central banks, individual and firms are more likely to expect a bout of deflation lasting several quarters or years than perpetual deflation. The impact of expected temporary deflation on the user cost of capital for depreciable assets depends on the expected intensity of the deflation. If individuals and firms expect temporary moderate deflation, the user cost of capital will fall, with the percentage drops being larger for shorter-lived assets. If individuals and firms expect temporary severe deflation, the user cost will rise and more so in percentage terms for long-lived assets.

Sunday, August 10, 2003
Drezner Has Moved You can now find Daniel Drezner's blog here.

Blogger Archive Bug Legal Theory Blog seems to have been afflicted with a severe case of the Blogger archive bug. The archives seem to have completely disappeared, and this means that links to specific posts no longer function. Hopefully this will be cleared up soon.

Yoo on the War Power John Yoo (U.C. Berkeley) has posted a paper entitled War and the Constitutional Text (forthcoming University of Chicago Law Review) on SSRN. Here is the abstract:
    This Essay, written as a response to a pro-Congress view in the war powers debate, presents a complete textual and structural theory of a flexible approach to war powers. Under this system, the President possesses the power to initiate and conduct hostilities as commander-in-chief and chief executive under Article II of the Constitution, checked by Congress's power of the purse. The Declare War Clause simply confers on Congress juridical power to both define the United States's legal relations with other countries and trigger domestic constitutional authorities during wartime. How the nation goes to war will result form the interaction of the political branches using these plenary constitutional powers. The Response critiques the most recent pro-Congress account, offered by Professor Ramsey, for not addressing the full context of the framing, and next argues that constitutional text and structure actually support the flexible war powers system. Critics of this approach fail to appreciate the textual significance of the authority independently granted to the President by the Commander-in-Chief and Executive Power Clauses and the "engage in war" language of Article I, Section 10. In addition, they do not appreciate the manner in which the Constitution structures the interaction of the executive and legislative branches by creating strict processes with carefully defined roles for the President and Congress, as with the enactment of legislation, in contrast to areas where it does not, as with warmaking. A more comprehensive reading of the text and structure demonstrates that the Constitution does not mandate a specific, legalistic process for waging war. Instead, the Constitution vests the executive and legislative branches with different powers involving war, which the president and Congress may use to cooperate or to compete for control over warmaking.

New Papers on the Net Here is today's roundup:
    Christopher Yoo (Vanderbilt) posts New Models of Regulation and Inter-Agency Governance, forthcoming in the Law Review of Michigan State University-Detroit College of Law. Here is the abstract:
      This symposium contribution explores how technological convergence and the shift towards access regulation are fundamentally transforming the basic tools and goals of telecommunications regulation. However, policy makers have largely ignored the manner in which access requirements can forestall the buildout of alternative transmission technologies. Simply put, compelling access discourages investment in new networks by rescuing firms that need network services from having to invest in alternative sources of supply. In addition, forcing incumbent carriers to share their networks cuts those who would like to construct alternative network facilities off from their natural strategic partners. As a result, access remedies can have the perverse effect of cementing existing monopolies into place. In addition, policy makers have largely overlooked how technological convergence and the shift towards access regulation have undercut the justification for employing cost-based methodologies when setting rates. The more appropriate step at this point would be to adopt the more economically sound approach of basing rates on market prices. Finally, the advent of convergence is also exerting pressure on the tendency under current law to regulate each communications technology as a universe unto itself. The impending shift to packet-switched architectures promises to cause all networks to become substitutes for one another. Indeed, it is possible to envision a world in which different network technologies act as complements rather than substitutes for one another, with different packets arriving in the house through the most efficient transmission media, a transformation that would pose its own share of regulatory challenges.
    Robert Thompson (Vanderbilt) posts two papers:
      Collaborative Corporate Governance: Listing Standards, State Law and Federal Regulation, forthcoming in the Wake Forest Law Review. From the abstract:
        The traditional view of corporate law as arising from state law, with federal law in a supporting role no longer describes the post Sarbanes-Oxleyt world. This paper presents modern corporate governance as a collaborative process between the federal government (mostly acting through the SEC), state law (mostly acting through the Delaware courts, but also including its legislature and those in other states) and the self-regulatory organizations such as the stock exchanges. The focus is on the third source, particularly the listing requirements of the New York Stock Exchange. The Reforms announced in 2002 portend a dramatic increase in the role of the listing requirement in defining American corporate governance. The interaction between the NYSE and state and federal law is heavily tilted toward its overlap with federal law. The pattern of NYSE regulation of the last decade is that the SEC chair makes a speech or a telephone call identifying a problem, the Exchange convenes a committee of experts and proposes a solution that is sent to the SEC and the various interested parties engage the Exchange and the SEC in discussions about what the law should be. Prominent examples include requirements for independent directors, shareholder approval of stock options, audit committee procedures and one share/one vote rules. This is a different process than what occurs in state law or in direct SEC regulation and it is becoming a larger part of American corporate governance.
      Corporate Governance After Enron: The First Year. Here is the abstract:
        In the aftermath of Enron and other corporate failures in the post-bubble economy, the menu of possible regulatory responses included federal regulation, state corporate law, or governance by self-regulatory organizations such as the stock exchanges. This commentary sets out the response of each actor in the first year after Enron and examines why state law chose to stand pat during this period. Part II examines a related problem posed by Enron - did it push the envelope in the use of separate entities as much as it appeared to do in accounting treatment? It compares Enron's use of SPEs to more familiar uses of separate entities in piercing the corporate veil contexts and concludes that the traditional corporate remedies of piercing, bankruptcy, or personal liability are likely to be less effective than disclosure is addressing future abuses of the type that arose in Enron.
    James Cox (Duke) and Randall Thomas (Vanderbilt) post SEC Enforcement Actions for Financial Fraud and Private Litigation: An Empirical Inquiry. Here is the abstract:
      This paper examines the overlap between SEC securities enforcement actions and private securities fraud class actions. We begin with an overview of data concerning all SEC enforcement actions from 1997 to 2002. We find that the volume of SEC enforcement proceedings is relatively modest. We next examine the scope of the recently enacted "Fair Fund" provision that authorizes the SEC to designate civil penalties it recovers from defendants to benefit defrauded private investors. We conclude that this provision offers only limited potential relief for private investors. We complete this part of the paper with an analysis of the serious resource limitations faced by the SEC. The second portion of the paper contains an empirical analysis of the determinants of SEC enforcement actions and the overlap of private fraud suits and SEC enforcement proceedings. In bi-variate analysis, we find that: private suits with parallel SEC actions settle for significantly more than private suits without such proceedings; SEC enforcement actions target significantly smaller companies than private actions alone; private cases with parallel SEC actions take substantially less time to settle than other private cases; and private cases with parallel SEC actions have significantly longer class periods than other private actions. Finally, we create a model for estimating damages to compare settlement ratios in cases with parallel SEC actions to those in private actions. We find that one-fourth of all the private class action settlements occurring in suits that yield less than 10% of provable losses are settled for less than .02 percent of provable losses, but that there are no private actions with parallel SEC suits with such small settlements. In the final part of the paper, we conduct a multivariate regression analysis of the determinants of when SEC enforcement actions are filed. We find that the most highly significant determinant of SEC actions is financial distress. Estimated losses do not appear to be a statistically significant factor in the SEC's decision to file these suits.
    Paul Edelman and Randall Thomas (Vanderbilt) post Voting Models, Corporate Elections and Takeover Bids. Here is the abstract:
      This paper examines corporate voting contests experimentally using a weighted voting model. We begin by providing a systematic treatment of weighted voting models as an analytical tool for legal policy. After this short intuitive guide to the basic concepts and techniques employed in these models, we then explore their use (and misuse) by the courts in the political arena. We continue this introduction by examining prior work using weighted voting models in the corporate setting. Here the literature has focused on two different aspects of corporate voting: the analysis of voting concentration and corporate control and, more recently, proxy contests for corporate control. In the next section, we engage in an in-depth analysis of the new models of corporate elections developed by Gilson & Schwartz and Bebchuk & Hart. In our critique, we show that both the Gilson & Schwartz approach and the Bebchuk & Hart paper are flawed. In particular, we find that the models used in Gilson & Schwartz employ unreasonable hypotheses and reach questionable conclusions, whereas we argue that the Bebchuk & Hart effort requires exceptionally strong hypotheses and very stringent mathematical assumptions to reach its conclusions. To develop a more realistic approach to these questions, we employ a probabilistic version of a standard weighted voting model that explicitly incorporates two critical features of corporate voting: first, that shares are normally voted in large blocks rather than in single shares; and second, that independent third party proxy voting advisors play an important, and often pivotal, role in determining the outcome of corporate elections. In addition, we explicitly incorporate information about the size of different corporate constituencies and their voting preferences. Using our model, we show experimentally how the distribution of shares among various investor constituencies will affect the outcome of different types of voting contests. Initially, we assume that the current legal regime applies so that corporate management determines whether to accept an unsolicited bid and can use a wide variety of anti-takeover defenses to forestall hostile bidders. We find that neither proxy contests, tender offers, nor combined proxy contests and tender offers will always lead to the desirable outcome for target company shareholders in any scenario. With each type of acquisition technique, bidders succeed in obtaining control of the target company in some value decreasing transactions, and are defeated in their acquisition efforts in some value increasing transactions. The implication is that, under current law, there will generally be some plausible basis for target company management to argue that it is value increasing to use defensive measures to preclude shareholder acceptance of a takeover bid. Finally, we study the effect on our results of adopting different theoretical perspectives on the proper role for shareholder voting. One alternative theory we examine is that target management should be barred from using defensive measures to stop an unsolicited takeover bid. Our model shows that if we adopt this theory, a change of control will occur in any case where the bid's value significantly exceeds the target's prior stock price. However, we are unable to accurately measure how this change will affect the size of premium offered in all bids, or the frequency of takeover bids, so that we cannot make social welfare comparisons between this regime and the current one. We then examine a second alternative theory that proposes shareholders should be able to vote within a reasonable period of time to remove any defensive tactic that impedes their ability to accept a takeover bid. This approach reduces all takeover battles to proxy contests occurring within at most thirteen months, the maximum length of time most states permit to elapse between annual meetings from the time of the announcement of the bid. In this situation, the shareholder vote will, in most circumstances, lead to an acceptance of value maximizing bids and a rejection of value decreasing offers. We endorse this position because it is at least as good as the current legal regime in insuring the maximization of shareholder vote, and better in that it permits shareholders to decide their own fate in more circumstances.
Additional papers of interest:

Saturday, August 09, 2003
Loss of Citizenship as a Criminal Penalty The Curmudgeonly Clerk has a very thoughtful post on this topic.

Welcome to the Blogosphere Brian Leiter (University of Texas) has a new blog, entitled The Leiter Reports, Editorials, News, Updates. This is sure to be good.

New Paper by Orin Kerr Once (and future?) conspirator Orin Kerr has a new paper on SSRN. The title is A User's Guide to the Stored Communications Act - And a Legislator's Guide to Amending It. Here is the abstract:
    Americans care deeply about their Internet privacy. But if they want to know how federal law protects the privacy of their stored Internet communications, they'll quickly learn that it's surprisingly difficult to figure out. The federal statute that protects the privacy of stored Internet communications is the Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 and codified at 18 U.S.C. section 2701-11. But courts, legislators, and even legal scholars have had a very hard time understanding the method behind the madness of the SCA. The statute is dense and confusing, and that confusion has made it difficult for legislators to legislate in the field, reporters to report about it, and scholars to write scholarship in this very important area.
    This Article will present a user's guide to the SCA. My main goal is to explain in relatively simple terms the structure and text of the Act so that legislators, courts, academics, and students can understand how it works - and in some cases, how it doesn't work. I hope to explain the basic nuts and bolts of the statute and show that the statute works reasonably effectively, although certainly not perfectly. My second goal is to show how Congress needs to amend the SCA. I recommend three ways that Congress should rethink the SCA to better protect the privacy of stored Internet communications, clarify its protections, and update the statute for the present. Specifically, I argue that Congress should raise the threshold the government must satisfy to compel the contents of certain Internet communications; that it should simplify the statute dramatically by eliminating the confusing categories of "electronic communication service" and "remote computing service," and eliminating redundant text; and that it should restructure the remedies scheme for violations of the statute.
Kerr is a terrific writer and an astute analyst. Highly recommended.

New Papers on the Net Here is today's roundup:
    Michael Abramowicz (George Mason) posts Information Markets, Administrative Decisionmaking, and Predictive Cost-Benefit Analysis. From the abstract:
      FutureMAP, a project of the Defense Advanced Research Projects Agency, was to involve experiments to determine whether information markets could improve Defense Department decisionmaking. Information markets are securities markets used to derive information from the prices of securities whose liquidation values are contingent on future events. The government intended to use such a market to assess the probabilities of potential political assassinations, and the indelicacy of this potential application contributed to a controversy leading to the cancellation of the program. In this Article, Professor Abramowicz assesses whether information markets in theory could be useful to administrative agencies, and it concludes that information markets could help discipline administrative agency predictions, but only if a number of technical hurdles such as the danger of manipulation can be overcome. Because the predictions of well-functioning information markets are objective, they function as a tool that exhibits many of the same virtues in predictive tasks that cost-benefit analysis offers for normative policy evaluation. Both approaches can help to overcome cognitive errors, thwart interest group manipulation, and discipline administrative agency decisionmaking. The Article suggests that the two forms of analysis might be combined to produce a "predictive cost-benefit analysis." In such an analysis, an information market would predict the outcome of a retrospective cost-benefit analysis, to be conducted some years after the decision whether to enact a particular policy. As long as the identity of the eventual decisionmaker cannot be anticipated, predictive cost-benefit analysis estimates how an average decisionmaker would be expected to evaluate the policy. Because the predictive cost-benefit analysis assessment is not dependent on the identity of current agency officials, they cannot shade the numbers to justify policies that the officials prefer for idiosyncratic or ideological reasons.
    Robert Thompson (Vanderbilt) posts Agency Law and Asset Partitioning, forthcoming in the University of Cincinnati Law Review. Here is the abstract:
      The law's recognition of a corporation as an entity separate from its shareholders permits corporate planners to partition assets in a way that often contributes to economic efficiency. That first-mover advantage, however, is not unlimited and the law regularly limits the abuse of such planning, as in non-consensual settings where the entity named as the actor lacks sufficient assets to pay harms arising out of the business. Agency law has been a traditional means by which liability has been extended beyond the corporate entity in particular circumstances. This paper explores how this traditional use of agency law has dissipated and the growing use of agency law to reinforce separateness and asset partitioning, even in non-consensual settings. The central point of discussion is the Supreme Court's decision in U.S. v. Bestfoods, an environmental case in which the Court contained liability within a corporate subsidiary. The article suggests this use goes beyond traditional agency principles, such that a deeper analysis of this context would be warranted.
    Nelson Lund (George Mason) posts Carnival of Mirrors: Laurence Tribe's 'Unbearable Wrongness', forthcoming in Constitutional Commentary. From the abstract:
      Professor Tribe has now done to me just what I claim he did to the Supreme Court in eroG v. hsuB. By repeatedly distorting what I actually said, Unbearable Wrongness creates illusory targets that Professor Tribe then holds up to ridicule. Leaving aside his many mischaracterizations of what I said, and the many arguments that he left unanswered in his extremely lengthy rebuttal, I focus here on our most significant points of disagreement: whether the Court's rationale for the decision in Bush v. Gore suffers from an "almost embarrassing bankruptcy," and whether the Court was legally prohibited from deciding the case at all. These are the important issues, and it is important to keep in mind that Professor Tribe's attacks on me are significant only because he desperately needs to show that any legal defense of the Court is silly. That is the only way to sustain his own claim that the Court was playing a shell game in Bush v. Gore, or as he now says, that the Court's decision deserves to be greeted with "head-scratching incredulity." Professor Tribe's claim is not just that Bush v. Gore was wrongly decided, but rather that no reasonable person could defend the decision. That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous. On the equal protection issue, Professor Tribe mischaracterizes the applicable precedents (especially by inventing a non-existent requirement of intentional discrimination in fundamental rights cases), misstates the holding in Bush v. Gore (especially by imputing to the Court a demand that the rules for recounting ballots must be "precisely drawn" and "completely" uniform), and falsely accuses the Court of having forbidden the Florida court to attempt a constitutionally permissible recount on remand. On justiciability, Professor Tribe has to my great satisfaction completely withdrawn the arguments that I called "spectacularly indefensible." Unfortunately, he has not returned to the position that he took as a litigator in Bush v. Gore, where he implicitly treated the case as justiciable. Instead, Professor Tribe has now invented yet a third theory, which conflates the legal doctrine of justiciability with the prudential considerations advanced by Justices Souter and Breyer (neither of whom claimed that Bush v. Gore was nonjusticiable). Professor Tribe's latest theory is entirely novel, and the Court committed no error in failing to think it up before he did. All nine Justices were right and Professor Tribe is wrong: Bush v. Gore was indeed justiciable under the applicable precedents.
    John Donohue (Stanford) posts The Final Bullet in the Body of the More Guns, Less Crime Hypothesis. From the abstract:
      In 1997, John Lott and David Mustard launched what has come to be one of the most remarkable tales in the history of public policy evaluation when they announced that laws permitting citizens to carry concealed handguns - so-called right-to-carry (RTC) laws - caused crime to fall. Hailed as heroes by the National Rifle Association (NRA) and its supporters, while derided as scoundrels by their staunchest critics, Lott and Mustard precipitated a scholarly and political odyssey that can teach us much about the techniques and limitations of sophisticated empirical research and the divergent norms of the scholarly and political realms. The bottom line is that recent work by Kovandzic and Marvell confirms the growing consensus that the best evidence does not support the thesis that adoption of RTC laws reduces crime. Nonetheless, this now discredited thesis continues to influence public policy as John Lott continues to try to persuade state legislators that RTC laws will lower violent crime despite the great weight of the evidence to the contrary.
    Fred McChesney (Northwestern University - Kellogg School of Management) posts Talking 'Bout My Antitrust Generation: Competition For and In the Field of Competition Law, forthcoming in the Emory Law Journal. From the abstract:
      Twenty-seven years ago I took my law-school antitrust course, from a fledgling assistant professor who had just left the Federal Trade Commission. My performance was adequate, earning one of the better grades in the course, but not spectacular. Unspectacular enough that afterwards the professor said it disappointed him. In retrospect, I think I under-performed because I was a soon-to-be economist as well as a budding lawyer. Like many people back then, I approached antitrust with a presumption that the gears of industrial-organization economics and antitrust law meshed more or less synchronously. But such a presumption was unwarranted, to say the least. As the course developed, it increasingly dawned that antitrust law, supposedly devoted to enhancing competition, was more a part of the problem than the solution. A few who had thought about all this longer had figured it out already. But for a callow law student at the time, it was difficult to mesh the economics of competition with "competition" law. I went into the exam conflicted, and evidently it showed. The conflicts today are fewer, thanks to a new brand of antitrust thinking that has developed and a new breed of antitrust enforcers that have arrived over the past generation. Often the new thinkers and enforcers are one and the same. The assistant professor who taught me antitrust is now the Chairman of the Federal Trade Commission, having written prolifically on both the Commission and antitrust law generally. Likewise, seminal scholars - also among my contemporaries and teaching colleagues – such as Frank Easterbrook, Richard Posner and Diane Wood - now as judges apply the new law that they espoused as academics. This article describes aspects of the evolution by which new antitrust rules have emerged to stimulate the salutary (if incomplete) rapprochement between economics and law in antitrust. In effect, the new rules have emerged from various types of competition, of two general sorts. To invoke Harold Demsetz's useful distinction, the competition has occurred in the field and for the field of antitrust. That is, the current generation has witnessed competition, first, as to which intellectual (including economic) paradigm animates antitrust law - competition for the field. As Section I details, competition for the field has included competition in the federal judiciary, some of that competition represented by acts of seeming judicial disobedience in antitrust. Thereafter, there has been considerable competition in the field, along lines to be described in section II, focusing on developments (some desirable, some not) in enforcement of the antitrust laws.
Other papers of interest:

Friday, August 08, 2003
Cooper on Originalism Jeff Cooper has a very thoughtful post on originalism. Here is an excerpt:
    [W]hatever its merits might be, originalism is hard, much harder than its proponents generally acknowledge. I'm reminded of Judge Richard Arnold's panel decision for an Eighth Circuit panel in Anastasoff v. United States (a decision later vacated by the court en banc), in which he concluded that the circuit's practice of issuing nonprecedential unpublished opinions was unconstitutional because it contravened the original understanding of "the judicial power" in Article III. Judge Arnold's support for this conclusion consisted largely of a brief passages in a couple of Federalists, as well as a smattering of references to Blackstone, Coke, and Hale. But, influential as those sources may have been, they do not fully capture the understandings of the legal and political communities of the time (as a number of scholars, myself included, have suggested, drawing on additional historical materials). Judge Arnold is a fine judge (and one to whom I owe a personal debt of gratitude, as he favorably reviewed some of my work--work that took issue with his own views--during my application for tenure), and he made a sincere effort to engage with historical materials. But his efforts at originalism in Anastasoff were deeply flawed.
    That may be the result of structural constraints more than anything else. Appellate judges, with their heavy caseloads, are poorly positioned to perform serious historical work. Supreme Court justices, with their lighter workloads, may be better situated. But the vast majority of them will still lack any serious training in history as a discipline. It should therefore be no surprise when they produce lousy history.
Cooper's point about the difficulty of originalism points to a much larger gap in constitutional theory--the neglect of institutional concerns, a topic about which Cass Sunstein and Adrian Vermeule have an interesting article discussed here (the very first post on Legal Theory Blog).
And Cooper's point suggests another one. Originalism is potentially quite radical. Assume that a series of transformative appointments gave us a thoroughly originalist Supreme Court in just a few years. Assume further that this Court believed that original meaning trumped settled historical practice (e.g. longstanding constitutional interpretations by the political branches) and precedent (e.g. constitutional interpretations by former Courts). This hopelessly general and conclusory, but I think an originalist court would be forced to work a revolutionary restructuring of the American institutions. Much of the federal government would have to go--falling to the original and narrow understanding of federal power and separation of powers. Much of the individual rights jurisprudence upon which American's have come to rely would be swept away, although a new and different jurisprudence might well take its place.
The fact that originalism is hard and radical does not mean it is wrong. But these points raise an interesting and important question--one that in my mind has been neglected by legal theorists: How should the transition to originalism be accomplished? That is, if you are an originalist, what story do you tell about the path to originalism? I don't think originalist scholars can say: "We will just take it one case at a time." Because it won't happen one case at a time. If originalism ever really gets going as the dominate constitutional methodology, it may start as a trickle of cases, but it won't take long for that trickle to become a flood--assuming, of course, that stare decisis does not play a constraining role. The precondition for originalism becoming dominate is an originalist majority or supermajority on the Supreme Court. Until that precondition is satisfied, originalism cannot really take off, but once it is satisfied, originalist precedent will begin to accumulate very quickly. The constitutional landscape can change radically in only a few years--think about the five year period from 1937-1942.
Enough ranting, read Cooper's fine post and then follow his links to more good stuff.

Sentencing & Integrity Eric Muller of Is That Legal posts on the Ashcroft plan to monitor judicial compliance with the sentencing guidelines, and links to this story. This story will inevitably be discussed from a simplified, political perspective, e.g. criminals versus society, judges versus the administration, but I think there is a very interesting problem of legal theory that lurks behind the story, and that problem concerns "integrity." Why are judges upset by Ashcroft's move? One of the reasons is that the sentencing guidelines create a problem of intrapersonal integrity. Precisely because the guidelines are rules, they will inevitably break down in particular cases. The guidelines will require judges to sentence defendant A to more years than defendant B, when apprehension of the particulars of their cases make it clear that A deserves a much lighter sentence than B--based on quality of the actions, intentions, and effects of the A and B and their respective actions. As a matter of intrapersonal integrity, this is a bitter pill to swallow. There is, however, a flip side to the coin. Giving judges discretion may allow them to act consistently with respect to the sentences that they hand out, but it creates a different kind of inconsistency--inconsistency across different judges. If judges are given substantial discretion in sentencing, defendants A and B's fate will inevitably be determined to a large extent by the judge who is selected in the case-assignment lottery. This creates a problem of interpersonal integrity or more aptly, political integrity As a society, we act arbitrarily and not on the basis of principle, when we sentence on the basis of a lottery. And there is one more dimension to this issue that involves legal theory. The problem of integrity would persist even if all the judges were committed legal formalists, but this problem is exacerbated by legal realist judges. If the judges treat the law as a mere instrument, then the sentences given to criminal defendants will depend, perhaps in large part, on the political orientation of the judge to whom the defendant's case is assigned. Simplifying grossly, liberal judges will be more lenient and conservative judges more harsh--depending, of course, on the offence.

Thursday, August 07, 2003
Pryor Update, Version 2.0 My post entitled Catholic Doctrine and the Obligations of Judges in Abortion Cases: A Comment on the Pryor Nomination is only one of several reactions to Hugh Hewitt's Weekly Standard column The Catholic Test. On, Hewitt responds to his critics: "The only defense of the anti-Catholic bigotry of Senate Democrats opposing William Pryor is invective, and so there has been plenty of invective spewing out from the usual suspects," referring to Legal Theory Blog, among others. Hewitt also characterizes his opponents as "the frenzied left."
Today, Hewitt has another column in the Weekly Standard, The Catholic Test, Part 2. And here is a taste:
    [T]he genuine problem with the Democrats' position [is that] [t]heir test falls inevitably on Catholics who are faithful to the Catechism, and that faithfulness can be inferred from other behaviors without a question ever being asked and answered. Truly, can it possibly escape the notice of Leahy's crowd that a nominee is a daily communicant? Does it really seem possible that the minority staff on the Judiciary Committee draws no conclusions from the religious practices revealed in FBI background reports? If a nominee to the appellate bench declares himself a faithful Catholic, trying to conform his or her life to the teachings of the Roman Catholic Church, isn't a filibuster inevitable? This inevitable blackball is what I believe triggered Bishop Chaput's denunciation, as well as the elite media's avoidance of his denunciation. It is damned unpleasant to talk about such things, just as it was unpleasant to talk about who could and could not join certain clubs, and who could and could not eat in certain restaurants, and who could or could not attend certain universities. Bigotry is unpleasant stuff.
But the important question is: "What test is being imposed?"
    Are all anti-abortion nominees excluded from the bench?
    Or is it that all nominee's who believe Roe was wrongly decided that are being excluded?
    Or is it all nominees who believe Roe can and should be circumvented by lower-court judges?
    Or all nominees who have opposed Roe with strong and harsh rhetoric (as Pryor allegedly has)?
    Or something else?
In order to determine whether an inappropriate litmus test has been imposed, we need to know what that test is. Part of the problem, I suspect, is that Democrats haven't been very precise in stating their reasons for opposing Pryor, but precision is required for meaningful debate. I honestly don't know why individual Senators oppose Pryor--at the requisite level of precision required for meaningful analysis, but I do think it is highly unlikely he is opposed simply because he is pro-life, for the reasons indicated in this report:
    [A] spokesman for the Judiciary Committee's ranking Democratic members called such charges "despicable." David Carle, press secretary for Sen. Patrick Leahy (D-Vt.), said both anecdotal evidence and reason suggest many pro-life Catholics have already been confirmed to federal judgeships with Democratic support. The committee doesn't keep records on the religious affiliations of judgeship nominees, Carle said in a telephone interview, but "it stands to reason, of the 145 Bush nominees that have been confirmed so far, that many of them are Christians, that many of them are Catholics. Presumably, many if not all of them are pro-life Republicans."
But just because Pryor is not opposed because he is pro-life does not mean that he is opposed for appropriate reasons. I hope to say more about this in the next few days. In the meantime, here is a roundup of the usual suspects (i.e. of reactions to Hewitt & the issue in general):This is the first occasion upon which Legal Theory Blog has been categorized with "the frenzied left."
Update: Hewitt emails and indicates that he had not intended to lump me with the "frenzied left." Whew! That was a close call!
And don't forget, check out this very thoughtful analysis of the moral obligations of a Catholic judge on legal theory annex.

Dryzek and List on the Relationship between Public Choice Theory & Deliberative Democracy Courtesy of Political Theory Daily Review, John S. Dryzek (Australian National University) and Christian List (Oxford) have a paper entitled Social Choice Theory and Deliberative Democracy: A Reconciliation. Here is the abstract:
    The two most influential traditions of contemporary theorizing about democracy, social choice theory and deliberative democracy, are generally thought to be at loggerheads, in that the former demonstrates the impossibility, instability or meaninglessness of the rational collective outcomes sought by the latter. We argue that the two traditions can be reconciled. After expounding the central Arrow and Gibbard-Satterthwaite impossibility results, we reassess their implications, identifying the conditions under which meaningful democratic decision making is possible. We argue that deliberation can promote these conditions, and hence that social choice theory suggests not that democratic decision making is impossible, but rather that democracy must have a deliberative aspect.
And here is a taste from the body of their, very impressive and interesting paper:
    To summarize, the identified escape-routes from social-choicetheoretic impossibility problems are the following:
      (i) If deliberation induces individuals to reveal their preferences and views truthfully (hypothesis 1), then strategic manipulation becomes less of a threat in deliberation, and a relaxation of condition (S) provides an acceptable escape-route from the Gibbard-Satterthwaite theorem, compatible with all other conditions of the theorem.
      (ii) If deliberation induces preference structuration – narrowing the domain of actual preference profiles to a domain in which the Arrow and Gibbard-Satterthwaite problems do not apply – (hypothesis 2), then both cycling and strategic manipulation become less of a threat in deliberation, and relaxation of condition (U) provides acceptable escape-routes from Arrow’s theorem and from the Gibbard-Satterthwaite theorem, compatible with all other conditions of these theorems.
      (iii) If deliberation helps uncover or create the tacit issue-dimensions that ‘cause’ a lack of preference structuration, and induce greater preference structuration in each separate dimension (hypothesis 3), then dimension-specific aggregation in accordance with all of the conditions of Arrow’s theorem or the Gibbard-Satterthwaite theorem (except condition (U)) becomes possible, and one of the following solutions to the overall decision problem may become available: subdividing the decision, lexicographic hierarchies of dimensions, logrolling, or demonstrating the nature of the problem and creatively crafting new alternatives.
      (iv) If deliberation can produce agreement on what the set of relevant alternatives is (hypothesis 4), then agenda manipulation becomes less of a threat, and relaxation of condition (I) provides an acceptable escape-route from Arrow’s theorem, compatible with all other conditions of the theorem.
      (v) If deliberation can produce agreement on an interpersonally comparable evaluation variable for assessing individual interests and a decision principle for aggregating individual interests into a collective outcome (hypothesis 5), then a solution to Arrow’s problem that is consistent with all of Arrow’s conditions becomes available for a range of institutionally soluble collective allocation or distribution problems.
    The role of deliberation is to bring about situations in which the antecedents of these “if-then” results are satisfied. The normative component of our argument is that the constraints required for bringing about such situations are either inherent in, or at least consistent with, core deliberative principles. Moreover, our arguments rest on empirical hypotheses about the effects of deliberation. Whether or not deliberation will induce each of the antecedents of the “if-then” results ultimately depends on the specifics of particular cases.

Hylton on Law and the Future of Organized Labor Keith Hylton (Boston University) has a working paper on SSRN entitled Law and the Future of Organized Labor in America. Here is the abstract:
    This paper, prepared for "The Future of Organized Labor" conference at Wayne State University, examines two questions: what are the implications of the decline of unions for the future of labor law, and what are the implications of labor law for the decline of unions? After documenting the recent trends (decline in the private sector coupled with slight growth in the public sector), I argue that the change in the public- versus-private composition will lead unions to pursue legislative strategies that will further reduce the share of the private sector workforce in unions. A law reform program that has any chance of success in reversing the decline of private sector unions will have to aim to reduce the competitive disadvantage to firms from unionization. I offer two general proposals in this vein: making labor law more predictable and removing the NLRB from regulating the substantive terms of labor contracts.

Wednesday, August 06, 2003
Lyons on Corrective Justice & Equality of Opportunity The distinguished legal philosopher David Lyons (Boston University) has posted Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow on SSRN. Here is the abstract:
    This paper explores connections between the history of racial stratification in the US and general calls for reparations. It establishes the historical basis, from colonial times to the present, of corrective justice claims against the federal government and suggests how they could properly be honored. Its normative basis is a political principle that already plays a basic role in American political thinking. Section I considers the moral bases and limitations of reparations claims. The problems involved in validating such claims do not affect the corrective justice argument that the paper develops. Section II offers an historical overview of the federal government's role in promoting and sustaining racial subjugation and its failure to address the substantial inequities that remain. For two centuries, government was the center of a Racial Subjugation Project, which created deep-rooted inequalities that public policy now largely ignores. Section III sketches a comprehensive program of corrective justice to address the entrenched legacy of slavery and Jim Crow. It imagines a National Rectification Project that is morally required not only by the government's duty to insure equal opportunity for all of our society's children but also by corrective justice because the inequitable conditions are attributable to the government's own policies.

Schauer on Legal Transitions The articulate, intelligent, and prolific Fred Schauer (Harvard, Kennedy School) has posted a paper entitled Legal Development and the Problem of Systemic Transition on SSRN. Here is the abstract:
    There is a large literature on legal transitions, mostly focusing on the allocation of the cost of legal change in areas such as taxation and the taking of property by eminent domain. Another literature looks at precedent and rules, exploring the legal system's own internal constraints on legal change. Yet there has been less attention on systemic legal change, in which entire legal systems change. When we look at systemic change, however, whether in post-colonial Africa and the Caribbean in the 1960s and 1970s, in Eastern Europe in the early 1990s, in South Africa in the mid-1990s, or in countries such as Vietnam now, it turns out that legal systemic change has often been slower and less consequential than the political and economic changes in the same societies. In searching for the causes of the comparative resistance of law to change, we find that a range of impediments including the staffing of legal systems, the disproportionate preference for stability among external forces, and the nature of legal thought produce a degree of path dependence and resistance to change that are different for legal transition than for political and economic transition.

More on Catholic Doctrine & Judicial Obligation I received a very articulate and nuanced response to my post entitled Catholic Doctrine and the Obligations of Judges in Abortion Cases from an anonymous reader, who has some tentative thoughts on the moral obligations of judges in abortion cases from a Catholic perspective.

Weatherall on Copynorms
    Copynorms are informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
    Kim Weatherall has a very good post on copynorms. Here is a taste:
      [N]owadays, copyright affects many more individual's freedom to do what they like with things they have bought (computers, CDs, MP3 players, etc). Convincing Jo Public that these kinds of constraints should be observed is a much taller order than convincing him that CD-Factories and Book Factories shouldn't be allowed to do what they like and copy what they like. This is a line that Randy Barnett emphasises in his review (pdf doct) of Lessig's Future of Ideas. In his review, Randy argues that
        [T]he propertization of cyberspace is a restriction upon private property in physical space and upon the free market as much as any other regime of property regulation. False claims of property rights are the enemy of genuine property rights ... Time-Warner and Microsoft and counless other remote corporations now claim to own a piece of your PC, your LPs and CDs, your VCR, your DVD player, and your MP3 player. The courts and Congress have bought their claims. That is very bad.
      Actually - this is even more literally true than even Randy Barnett perhaps realises. After all one argument by Sony in Sony v Stevens was that RAM copies - temporary copies in a computer's memory - were "reproductions in material form" under the Copyright. Had this argument succeeded (which it did not), it would almost literally mean that a little bit of your computer - while the RAM copy persisted - was "owned" by the copyright owner. Weird... Anyway, back to Randy:
        By invading our homes and businesses to tell us what to do with what is ours, and what of ours we can freely trade with each other without going to jail, IP is as much a restriction on classical liberal property rights as wage and price controls or designating historic districts that restrict how you can remodel your house. All the benefits Lessig sees from the internet commons are a product of private persons applying their minds to devise new uses for what is theirs and trading those possessions with others."
      I agree with Solum that enraging - and dismissing - elite opinion is bad strategy for the record industry. But enraging a few lawyers is one thing - directly implicating individuals (who do not, in general, like to be thought of as thieves, especially when they are using their own stuff - computers and CDs and things) is even more important. and an even bigger obstacle directly in the way of any RIAA-desired norm shift.
    Weatherall is absolutely right to point us to Barnett's discussion of the relationship between IP and traditional property. Indeed, the biggest possible mistake that copyright holders could make would be to sucessfully lobby for legislation permitting them to engage in self-help (sabotaging computers that act as file servers for unauthorized mp3 files). Backlash would be too mild a word.
And by the way, you may also want to take a gander at Weatherall's most recent post Jack Balkin woz 'ere.

Second-Order Slippery Slopes My post, What's Wrong with Bills of Attainder, responded to this post, over at Antirealist. I made some pretty conventional arguments--that a blanket ban on bills of attainder serves rule of law values and prevented abuses of power. Antirealist has a long and nuanced response that covers quite a bit of ground. Let me focus on one, fascinating, argument:
    But, if I understand him correctly, Lawrence seems to be suggesting that, because ex post facto laws threaten autonomy in most cases, the rule of law is best served by a blanket ban on them, rather than a case by case approach. I find this unpersuasive, because it seems to rule out the making of important distinctions at too high a level of abstraction. If we shouldn't distinguish between retroactive legislation which does and which does not threaten autonomy because of slippery slope concerns, why shouldn't we apply the same logic to other important distinctions - between just and unjust forms of discrimination, say? Another kind of slippery slope will appear, threatening to make pragmatic concerns outweigh principles in law-making. But this is paradoxical, because there must be principles to give rise to those concerns in the first place.
My argument was based on the notion of a slippery slope, and Antirealist's argument is a variation on one of the classic objections to slippery slope arguments. Let's give Antirealist's argument a name, the second-order slippery slope. If we use first-order slippery slope arguments to justify rules (as opposed to case-by-case decisionmaking) in one case, then there is no principled stopping point. We are on the slippery slope to making every decision on the basis of first-order slippery-slope arguments. Here are some thoughts:
    First, the distinction between first and second order slippery slopes itself supplies the necessary stopping point. That is, if true, this argument suggests that each slippery slop should be considered on its own merits.
    Second, the case of bills of attainder is relevantly different that the case of the second-order slippery slope. Why? In the case of bills of attainder, there is reason to believe that a general rule is necessary to prevent abuse. For familiar reasons, we worry that legislatures will compromise liberty and the rule of law for partisan reasons. Thus, we worry that a labor parliament might pass a bill of attainder to attack a prominent former conservative politician (e.g. Archer, the original subject of Antirealist's post), but not pass such a bill respecting a similarly situated former labour politician. Even if this would not work a serious injustice in one case, once the mechanism is available, legislatures are ill suited to determine whether this dangerous tool may be used safely in the case at hand. Bills of attainder are always risky, because they place decision-making authority regarding the punishment of a particular individual in the hands of an institution that, by institutional design, is not equipped with the appropriate safeguards.
    Third, there is, so far as I can see, no similar reason to worry about the second-order slippery slope as a general phenomenon. Quite the contrary. Although political actors (legislatures, executives) may be tempted to act on an ad hoc basis to maximize their own power and freedom of action, it does not seem plausible that they will go around imagining illusory slippery slopes in order to establish rules that limit their power.
    Fourth, it is not clear that the second-order slippery slope leads to pernicious results. My original argument for a rule against bills of attainder was that it would enhance the rule of law. Antirealist argues that this creates a second-order slippery slope, upon which we would slide to a possible future state of the world in which many more decisions are made on the basis of rules rather than case-by-case reasoning. But the rule of law is, in general, a good thing. Whereas, I provided a fairly specific argument as to why the slippery slope that results from case-by-case evaluation of bills of attainder ends in an undesirable place, Antirealist provides no such argument for the second-order slippery slope.
    Fifth, the key to avoiding fallacious reasoning when making slippery-slope arguments is to provide a mechanism: explain why the slope is slippery. I've provided the mechanism in the case of bills of attainder, but Antirealist has not met this burden with respect to the second-order slippery slope.
One more thing: I urge you to read Eugene Volokh's important article on slippery slopes (html and pdf) There is a lot more good stuff in Antirealist's very interesting post.

Tuesday, August 05, 2003
Riles on Law's Failures Annelise Riles (Cornell University) has posted Law's Failures: Means and Ends on SSRN. Here is the very interesting abstract:
    This paper treats the general sense of failure that pervades the field of Conflicts of Laws as an opportunity to consider how failure generally might be understood in the law. Through an analysis of the field's history as compared to the history of property law, the paper argues that Conflicts' failure stems not from its inability to identify with either a normative or an instrumental theory of law, but from a failure of aesthetic technique. This analysis stands against both a normative understanding of law that sees Conflicts as having failed because it lends no substantive support to any claims of political or social effect on the one hand and an instrumentalist view of law that finds Conflicts doctrines unworkable, and unable to produce predictable or desirable effects. The wider goal of the paper is to draw serious theoretical attention to the technical character of legal knowledge. The "failure" of Conflicts as a field, however, also invites attention to the conditions under which this technical aesthetic ceases to captivate the imaginations and commitments of legal theorists, teachers and practitioners.

New Papers on the Net Here is today's roundup:
    Thomas Heide (Cambridge University) posts Copyright, Contract and the Legal Protection of Technological Measures - Not 'the Old Fashioned Way': Providing a Rationale to the 'Copyright Exceptions Interface', forthcoming in the Journal of the Copyright Society of the U.S.A.. Here is the abstract:
      The relationship between copyright, contract and the legal protection extended to technological measures is important and one due to increase in prominence as copyright owners increasingly rely on contracts and technology in the delivery of copyrighted material. The interrelationship between copyright on the one hand and contract and legal protection extended to technological measures used by rights-holders, on the other, is referred to in this article as the "copyright exceptions interface". This term is used to refer to how legislators envisage that users of copyright material can benefit from copyright exceptions despite attempts to restrain or prevent certain uses either through contract or technology. The copyright interface is thus of key relevance to both users and rights-holders. For users, the interface indicates what contractual restrictions they can consider to be null and void and in what instances they can circumvent rights-holders' technological measures. For rights-holders, the interface indicates what type of obligations they may be under in enabling users to benefit from exceptions under copyright law. In light of recent U.S. and EU legislative treatment of the copyright exceptions interface, this article urges re-consideration of the type of exception where such an interface is appropriate. As copyright law remains the body of law best suited to regulating productive use of materials, it argues that there is a strong case to be made why any copyright exceptions interface must include exceptions enabling productive use. This article bolsters the case for including exceptions enabling productive use in any copyright exceptions interface. It offers economic analysis to show how such exceptions promote innovation-driven competition and result in important economic benefits not only for the user public but also for new creators seeking to make productive use of existing copyright material. It identifies the EC Software Directive as a model precedent which establishes a complete exceptions interface addressing both contract and technological measures. It is suggested that this Directive, with minor adjustment, could provide the basis of a broader interface applicable to all types of copyright works for those exceptions enabling productive use.
    Thomas Mayo (Southern Methodist) posts Sex, Marriage, Medicine, and Law: 'What Hope of Harmony?', forthcoming in the Washburn Law Journal. Here is the abstract:
      This essay offers a critique of the Kansas Supreme Court's decision in In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), and similar cases that hold that for purposes of the opposite-sex marriage rule, an individual's sex is determined at birth, is genetically fixed, and cannot be changed through surgery or hormone therapy. The result for transgendered individuals is a legal regime that is hostile to medical care that brings external sex characteristics into line with sexual identity. The result for society is a legal rule that is at odds with scientific opinion. Finally, the result for the opposite-sex marriage rule is that one type of same-sex marriage is replaced by another type of same-sex marriage (e.g., when a genetic male who undergoes sex-change therapy is permitted to marry a genetic female). The essay ends with a plea for a reconciliation of legal doctrine with established scientific and medical opinion, using the neurological criteria for the determination of death as an example of a (mostly) successful example of such a reconciliation.
    Margaret Blair (Georgetown) posts Why Markets Choose the Corporate Form: Entity Status and the Separation of Asset Ownership from Control. From the abstract:
      This essay draws on the experience of business people in the early 19th century U.S. to provide insights into the problems of creating effective institutions of capitalism in emerging market and transition economy countries. The essay argues that the unique contribution of the corporate legal form in the 19th century was that it allowed business people to create separate legal entities with potentially unlimited life to own the assets used in production, which, among other things, separated asset ownership from control over those assets. These features together enabled business organizers to commit capital almost irrevocably to an enterprise, and helped to make the enterprises more financially stable. Using the corporate form, rather than partnership or so-called "joint stock companies" (which were a type of partnership), business organizers could more easily accumulate organizational and other intangible capital, along with the specialized physical capital necessary to carry out complex business activities over an extended period of time. Scholars who have studied the problems of creating effective corporate law and governance institutions in developing and transition countries have emphasized the importance of protections for minority shareholders. But the need for legal and organizational mechanisms for locking capital into the enterprise, for preventing investors from stripping assets or otherwise pulling out prematurely, is even more basic, yet largely neglected in the literature so far. An appreciation of our own history of how business people tried to find organizational forms that would enable them to build substantial and lasting business enterprises in the absence of strong legal, cultural and institutional supports sheds light on the important role played in this country of entity status and separation of control from financial contribution.
    Susan Bandes (DePaul) posts Fear Factor: The Role of Media in Covering and Shaping the Death Penalty, forthcoming in the Ohio State Journal of Criminal Law. Here is the abstract:
      Substantial work has been done on media's coverage of crime, and particularly violent crime. However, very little work has been done on media's relationship to the death penalty, a topic that presents its own set of complex challenges. This article examines the feedback loop between law and media in the capital punishment context. It first discusses the ways in which the perceived requisites of the media, particularly television, shape coverage of capital punishment. These requisites include the need for immediate, discrete and filmic occurrences, the demand for official sources, and the influence of dramatic conventions like stars and villains, a clear moral, and definitive closure. The paper argues that media coverage governed by these requisites gives short shrift to problems of justice and fairness in individual capital cases, and pays even less attention to broader, systemic problems plaguing the American system of capital punishment. The paper then argues that the administration of the death penalty is, in turn, strongly influenced by the media at a number of crucial pressure points. The feedback loop is especially visible at the legislative juncture, when crime control policies are made; at the prosecutorial juncture, when discretion about capital charging is at work; and at the adjudicative juncture, when both judge and jury must make difficult decisions about sentencing.
    Rafael La Porta (Harvard University - Department of Economics), Florencio Lopez de Silanes (Yale School of Management) and Andrei Shleifer (Harvard University - Department of Economics) post What Works in Securities Laws?. Here is the abstract:
      We examine the effect of securities laws on stock market development in 49 countries. We find almost no evidence that public enforcement benefits stock markets, and strong evidence that laws facilitating private enforcement through disclosure and liability rules benefit stock markets.
Additional papers of interest:

Catholic Doctrine and the Obligations of Judges in Abortion Cases: A Comment on the Pryor Nomination Over at the Weekly Standard, Hugh Hewitt has an essay entitled The Catholic Test, Hewitt actually has some nice discussion of the history of the Constitutional prohibition on religious tests, but in the case of the Pryor nomination, one important question is whether a religious test has been imposed. Several commentators on both the right and the left have argued that opposition to Pryor is based on his views about abortion and in particular about Roe v. Wade and not on his Catholicism per se. How does Hewitt respond?
    It is both laughable and pathetic for Senators like Leahy, Tom Daschle, and Richard Durbin to protest their innocence on the charge of anti-Catholicism with the argument that they are Catholics and thus cannot be anti-Catholic. This is a variation on the "some of my best friends are Jewish" refrain, and would not for a moment be admitted as a serious response in any other civil rights debate involving any other minority. The fact of discrimination is not in the motive of the offender but the effect upon the offended. Labels have nothing at all to do with the reality of bigotry.
Several points are important here:
    First, Hewitt is right that the fact that some of Pryor's opponents are Catholic is not determinative of the issue. It is possible for members of a group to bear animus towards the group.
    Second, however, this fact is not irrelevant. Hewitt tacitly concedes this in the quoted passage, when he says that the "fact of discrimination is not in the motive of the offender but the effect upon the offended." The tacit concession here is that the Catholic identity of those opposed to Pryor is relevant to the question whether the motive behind the opposition is anti-Catholic animus. And as Hewitt tacitly concedes, the circumstances make it quite unlikely that anti-Catholic animus is a motive. But Hewitt muddies the water, when he compares the statements by Democratic catholic Senators to "some of my best friends are Jewish," a statement which does frequently reveal unconscious or concealed anti-Semitism. Either Hewitt is a bit confused, or he wants to have his cake (anti-Catholic animus) and eat it too (the real question is effect). In his op/ed, Hewitt urged his readers to follow a link to a statement by Archbishop Charles Chaput of Denver, which clearly endorses the "anti-Catholic animus" view.
    Third, Hewitt has a point when he focuses on effect. If a particular litmus test for judicial nominees has an exclusionary effect with respect to a religious group, that effect should be taken into account when a Senator makes the decision whether to impose the test. However, we should not lose sight of the fact that Republican rhetoric on this issue has taken advantage of the association between the "No Catholics need apply" message (e.g. the television ads) and anti-Catholic animus. It was not "laughable and pathetic" for Democratic Catholic Senators to react strongly to the "Catholics need not apply" television ads and charges of anti-Catholic bias in exactly the way they did. Hewitt's column blurs this point, and, in my opinion, comes very close to deliberate and irresponsible distortion of the issue.
    Fourth, there is, however, a real question whether a litmus test on abortion is appropriate as a matter of political morality. This is not an easy question, and the answer to this question depends on the nature of the test imposed. There is a range of possibilities:
      --Personal Moral Opposition to Abortion. Exclusion of judicial nominees because they were personally opposed to abortion as a matter of morality would be wholly inappropriate. Such opposition is a matter of conscience, and is not relevant to a judge's ability to execute her office. Even if Senator's believe that a nominee's opposition to (or support for) abortion is an indicator of the nominee's larger ideology, this should not be a criterion for judicial selection.
      --Belief that Abortion Should Not Be Lawful. This belief comes closer to being relevant to judicial selection. If you are a realist, and believe that judges vote their ideologies and should vote their ideologies, then it follows that a nominee's belief that abortion should not be lawful is likely to affect the way that the nominee votes in abortion cases. On the other hand, if you are a legal formalist, and believe that judges both can and should decide cases on the basis of the law and not their own ideological convictions, then it would not be appropriate to impose a litmus test for judges based on their beliefs about the question whether abortion should be legal.
      --Belief that Abortion Is a Grievous Evil and that Judges Have a Duty to Resist or Nullify Laws that Permit Abortion. Unless you agree with it, this belief should disqualify a nominee from a judicial office. There are, of course, laws that are so evil that judges should resist them by extralegal means, but the belief that abortion laws are of this sort is not a mainstream view in contemporary American politics. The majority (vast majority?) of Americans who oppose Roe v. Wade believe that it should be changed by legal and not by extralegal means.
    Fifth, there is, however, another defect that a judicial nominee can possess, which is closely related to this issue. An excellent judge must have the right intellectual and moral equipment (the judicial virtues or excellences). In particular, this means that a judge must have a judicial temperament--the judge's passions (even passions for great moral causes) must be in order. Otherwise, passion can cloud judgment. If a judge's passions overcome her reason, then she may decide the cases before her on the basis of passionate commitment to a cause rather than on the basis of the law. This is just as true of abortion (on either side) as it is about any issue. An excellent judge must possess the virtue of justice, the disposition to decide the cases before her on the basis of the law.
    Sixth, therefore, the question becomes, is Democratic opposition to Pryor based on legitimate concerns, either about his beliefs or his character. And here, I am really not quite sure. Because the debate over Pryor, abortion, and Catholicism has been characterized by more heat than light. Discussion has become emotional and angry rather than conciliatory. Positions have become simplified rather than nuanced.
    Seventh, how do these considerations apply to Pryor. I am not in a good position to supply an answer to this question, because I have not done a careful, unbiased assessment of Pryor's record and public statements. My impression is that Pryor has publically affirmed belief that Roe v. Wade is wrong, but has expressed a willingness to follow Roe as an appellate court judge bound by the doctrine of vertical stare decisis.
    Eighth, we should distinguish two questions. First, how do these considerations bear on any nominee who accepts the teachings of the Catholic Church on abortion. Second, this is a different question than the question how the same considerations bear on Catholic nominees per se. Not all Catholic nominees accept all of the teachings of the Church. The official line is that Catholics are obligated in conscience to try to accept the teachings of the Church, but, if in conscience, a Catholic cannot accept a particular teaching, this does not mean that the individual is obigated to perform an official act of renunciation and it does not impose upon the Church an obligation to excommunicate the individual.
    Ninth, Catholic doctrine is clear on two points, abortion is wrong and laws permitting abortion are wrong. But what about the crucial question: what should a judge who accepts Catholic doctrine do if called upon to decide a case involving the right to abortion? Here is the relevant passage from Evangelium vitae, authored by John Paul II:
      The passing of unjust laws often raises difficult problems of conscience for morally upright people with regard to the issue of cooperation, since they have a right to demand not to be forced to take part in morally evil actions. Sometimes the choices which have to be made are difficult; they may require the sacrifice of prestigious professional positions or the relinquishing of reasonable hopes of career advancement. In other cases, it can happen that carrying out certain actions, which are provided for by legislation that overall is unjust, but which in themselves are indifferent, or even positive, can serve to protect human lives under threat. There may be reason to fear, however, that willingness to carry out such actions will not only cause scandal and weaken the necessary opposition to attacks on life, but will gradually lead to further capitulation to a mentality of permissiveness. In order to shed light on this difficult question, it is necessary to recall the general principles concerning cooperation in evil actions. Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God's law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act against innocent human life or a sharing in the immoral intention of the person committing it. This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it. Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself (cf. Rom 2:6; 14:12). To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised. What is at stake therefore is an essential right which, precisely as such, should be acknowledged and protected by civil law. In this sense, the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities. Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane.
    This passage is also relevant:
      This task is the particular responsibility of civil leaders. Called to serve the people and the common good, they have a duty to make courageous choices in support of life, especially through legislative measures. In a democratic system, where laws and decisions are made on the basis of the consensus of many, the sense of personal responsibility in the consciences of individuals invested with authority may be weakened. But no one can ever renounce this responsibility, especially when he or she has a legislative or decision-making mandate, which calls that person to answer to God, to his or her own conscience and to the whole of society for choices which may be contrary to the common good. Although laws are not the only means of protecting human life, nevertheless they do play a very important and sometimes decisive role in influencing patterns of thought and behaviour. I repeat once more that a law which violates an innocent person's natural right to life is unjust and, as such, is not valid as a law. For this reason I urgently appeal once more to all political leaders not to pass laws which, by disregarding the dignity of the person, undermine the very fabric of society.
    Tenth, these passages do not explicitly address the issue at hand. I would be grateful for help, but here is my take. Initially, I believe these passages strongly support the proposition that a Catholic judge who in conscience affirms the teachings of the Church on the abortion may not order than an abortion be performed, even if the judge believes that the positive law requires her to do so. There is, however, some support for a contrary view. Writing about the analagous case of the death penalty, Avery Cardinal Dulles, S.J. has expressed the view that a Catholic judge who believes that the Death Penalty is always contrary to church teachings may nonetheless order an execution:
      Even a judge who believed that capital punishment should never be used in our country today, and that such was the expressed belief of the Pope, might still affirm the death penalty in certain cases on the ground that, although the law was bad, the decision was nevertheless constitutional, legally correct, and not manifestly opposed to the moral law. One can legitimately implement a law that one regards as prudentially wrong. Capital punishment, after all, is legal in the United States, and is not murder.
    The difference, however, is that the Church Doctrine suggests that abortion, unlike capital punishment, is "manifestly opposed to the moral law." Of course, it is very rare that a judge is required to sit on a case in which she might be required to order that an abortion take place. It would seem to me reasonable for Catholic judges to recuse themselves from such cases.
    Eleventh, but what about the case in which the positive law establishes a right to abortion and a Catholic judge would or might be required by the positive law to affirm that right in a particular case. There is, I believe, an important distinction between direct participation in abortion (electing one, performing one, or ordering one) and conduct which allows others to perform abortions. Judges who affirm a right to abortion in a particular case do not directly participate in abortion. The first passage of Evangelium vitae quoted above is addressed to direct participation in abortion. The more directly relevant passage is the second passage, and in particular, the following: "law which violates an innocent person's natural right to life is unjust and, as such, is not valid as a law." This suggests that a Catholic judge may not regard Roe v. Wade as a valid law. But what are the consequences?
      One possibility is that such a judge would be free to decide particular cases in a way that is contrary to Roe v. Wade, but this moral freedom would be illusory in law, since a lower court judge who did this in an honest way would be reversed and eventually disqualified from hearing such cases.
      Another possibility, more realistic, I think is that such a judge should disqualify herself in cases involving abortion, but as a practical matter, this also has severe problems. Until the judge sits on the case, she will not know what the precise issues are and what the positive law requires. So Catholic judges would be required to recuse themselves from all cases involving abortion.
      Yet another possibility is that Catholic judges would consider themselves as permitted to distort the law and the facts to reach an anti-abortion outcome. I do not believe that Catholic doctrine either requires or permits such deceptive practices.
      And a final possibility is that a Catholic judge might view Roe v. Wade as contrary to natural law and hence as invalid, but nonetheless follow Roe v. Wade on the ground that the good from full participation by Catholic judges in the legal system outweighs the evil of following an unjust decision--given that abstention from decision in such cases cannot change the outcomes.
    And consider the following statement by Catholic Judge James Buckley:
      When I took my oath of office, I solemnly swore that I would "administer justice without respect to persons, and . . . faithfully and impartially discharge all the duties incumbent upon me as a United States Circuit Judge, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States." The authority that was vested in me upon taking that oath is derived exclusively from the Constitution. Thus the justice I am sworn to administer is not justice as I might see it, but justice as defined by the Constitution and laws and legal traditions of the United States. And if I consciously deviate from that body of law to do justice as I see it, I violate my oath of office and undermine the safeguards embodied in the Separation of Powers. Should I ever be asked to hear a case in which the application of the law might result in my material complicity in an immoral act, I would have to examine my conscience and, if it so dictated, recuse myself. What I may not do is bend the law to suit my conscience.
    By way of contrast, consider this view, expressed by Oswald Sobrino on the Catholic Analysis Blog:
      In my view, which, let me be clear, is a highly controversial view that would find few supporters in the legal profession, a Catholic judge is not bound to follow the Supreme Court's recognition of vice because the Supreme Court lacks the power to engage in judicial rulings contrary to the natural law. Thus, Catholic judges are fully within their rights to decide cases consistent with the natural law. Consequently, if a Catholic judge is considering a statute challenged on the basis of a right to sodomy as intrinsic to human dignity, that judge is free to use his legal knowledge and acumen to reject the reasoning used by the Supreme Court. To this suggestion, most judges will cry out in horror that they are bound by the rulings of the nation's highest court.
    James Buckley's statement differentiates between a decision that would result in "material complicity in an immoral act" from other decisions in which positive law departs from justice--an important distinction. But how would Buckley respond to the view that law's contrary to justice are not "valid"? And how would Sobrino respond to the fact that if Catholic judges were to adopt his suggestion, the likely response of the political system would be to exclude Catholics from the bench?
    Twelfth, my analysis of Evangelium vitae is tentative--to say the least. I would welcome comments from readers, and especially any pointers to scholarly discussions of the issue that take Evangelium vitae seriously in the context of judges who must decide whether to follow positive law establishing a right to abortion.
    Finally, I think that these issues should be put on the table. In particular, it is right and proper for opponents of Pryor to ask him whether he accepts the Church's teaching that laws permitting abortion are unjust and hence are "invalid," and, if he accepts this teaching, to ask further what consequences he believes this teaching has for him in his role as judge. There are those who believe that these matters should be left off the table. But beliefs regarding the the conditions for the validity of law are not matters of personal morality, and they deserve open discussion. Whether that discussion should take place in a Senate hearing is a different matter. If the questions are raised in that forum, they should be raised on their merits without reference to particular religious denominations or texts.
In conclusion, readers of Legal Theory know that these comments are offered in the spirit of scholarship and not for partisan purposes. My own position is that I neither endorse nor oppose Pryor's nomination, because I have not given his record the kind of serious study that would permit me to make an informed judgment. I have publically suggested that both Democratic opposition to Pryor on the basis of his abortion stance and Republican rhetoric about anti-Catholic bias are inappropriate as a matter of political morality.

Monday, August 04, 2003
RIAA Bashing? One symptom of the dysfunctional debate over filesharing is the exaggerated rhetoric and demonization found on both sides of the debate. For criticism of the copyleft from the copyright, check out this post on BALASUBRAMANIA'S MANIA.

Copynorms: Survey Research
    Copynorms are informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
    I've been bloggin recently on Copynorms. The Pew Internet and American Life Project has a new report entitled Music Downloading, File-sharing and Copyright: A Pew Internet Project Data Memo. Their research strongly suggests that the prevailing copynorms are very weak indeed. Here is an excerpt:
      As with those who download, those who take the next step and share files are also unlikely to express concern about the copyright of the files they share with others over the Internet. Young adults are the least likely to express concern about the copyrights of the files they share with others, with 82% of file-sharers aged 18-29 saying they don’t care much about the copyright status of the files they share. Those aged 30 to 64 are more likely to express concern about copyrights, with about 2 in 5 file-sharers in those age groups saying as much. Nevertheless, in each age group, a plurality if not an out right majority of each group say that they are unconcerned about the copyright of the files they share online. Students, both full-time and part-time, who share files, say they are not concerned about the copyright status of the files they share with others online. Eighty percent of full-time students and almost three-quarters of part-time students say they do not care whether the files they share are copyrighted or not. Fifty-nine percent of non-students say the same. As with downloaders, college grads are the most likely to express concern over copyright amongst file-sharers. Those with lower levels of education are much more likely to express very little concern, and even amongst college grads, a majority (56%) say they don’t care much about copyright. Also similar to downloaders, parents who share files are more likely to express concern than non-parents over the copyright of the files they make available. Thirty-seven percent of parents who share music files say they care about copyright, versus a quarter of non-parents. Still, the majority, 57% and 71% of file-sharing parents and non-parents respectively say they do not care about copyright. Those who share files and live in households with less than $30,000 in income are the most likely income group to say they do not care about copyright--with close to 80% saying they do not care about the status of the files they share. As incomes rise, concern over copyright rises, though even in the highest income groups (those earning $75,000 or more a year) 61% of Internet users who share files say they do not care about the copyright on those files. There are no significant differences in copyright beliefs among file-sharers when it comes to their level of online experience, their frequency of use of the Internet, or whether they have a high-speed connection or not.

Profile of Steven Levitt Just in case you missed it, here is a link to the New York Times Sunday magazine profile of University of Chicago economist Steven Levitt. A taste:
    Levitt took up a hobby: rehabbing and selling old houses in Oak Park, where he lives. This experience has led to yet another paper, about the real-estate market. It is his most Chicago-style paper yet, a romp in price theory, a sign that the university's influence on him is perhaps as strong as his influence on it. But Levitt being Levitt, it also deals with corruption. While negotiating to buy old houses, he found that the seller's agent often encouraged him, albeit cagily, to underbid. This seemed odd: didn't the agent represent the seller's best interest? Then he thought more about the agent's role. Like many other ''experts'' (auto mechanics and stockbrokers come to mind), a real-estate agent is thought to know his field far better than a lay person. A homeowner is encouraged to trust the agent's information. So if the agent brings in a low offer and says it might just be the best the homeowner can expect, the homeowner tends to believe him. But the key, Levitt determined, lay in the fact that agents ''receive only a small share of the incremental profit when a house sells for a higher value.'' Like a stockbroker churning commissions or a bookie grabbing his vig, an agent was simply looking to make a deal, any deal. So he would push homeowners to sell too fast and too cheap. Now if Levitt could only measure this effect. Once again, he found a clever mechanism. Using data from more than 50,000 home sales in Cook County, Ill., he compared the figures for homes owned by real-estate agents with those for homes for which they acted only as agents. The agents' homes stayed on the market about 10 days longer and sold for 2 percent more.

Here, Here! For Jane Galt (Asymmetrical Information), who writes:
    Any ideology must generally confront uncomfortable facts. I would like for tax cuts to raise tax revenue, but it is not so. Republicans who get their opinions on taxation only from conservative sources, however, tend to repeat this as if it were a known fact, rather than an unlikely assertion. My Democratic friends would like, for example, price controls not to decrease the supply of the items for which we are controlling the price, but they generally do, and there you are; we have to deal with the fact, not pretend it away. I oppose any movement that caters to the natural tendency of people to separate themselves from opinions with which they disagree in order to preserve their peace of mind.

What's Wrong with Bills of Attainder? . . . is the question asked over at Antirealist in the context of proposals to punish Jeffrey Archer thought the use of a bill of attainder to deprive him of his peerage:
    But, at the risk of stirring up more controversy, just what is really wrong with using an act of attainder against Archer? It may be highly undemocratic, but so is the process for creating peers in the first place. It may be open to abuse, but the power to award peerages can also be abused, and certainly has been in the past. The reasons for using attainder against Archer are public. There is no trial in attainder, but Archer has been publicly convicted in the criminal courts. The act of stripping Archer of his title seems no more an arbitrary exercise of power than elevating him to the peerage in the first place. As I understand it, bills of attainder wouldn't be voted on by the legislature, but they would be introduced in public to the House by the PM, who is answerable for his actions to Parliament and at the ballot box. This should be enough to ensure that attainder doesn't suddenly become the preferred tool of the PMO. The present-day UK is a very different place to the pre-Reform Act era when attainder was last employed. So what's the problem?
And the answer is complex, but I would suggest that the following considerations are relevant:
    First, a bill of attainder does not conform with important rule of law values--in particular, the requirement that the laws be public and that they be known in advance of the conduct to which they apply. The foundational justification for the rule of law is itself complex, but one important strand of theory is tied to the idea that the rule of law proctects individual autonomy and liberty from abuse. Bills of attainder pose a particularly pernicious threat to the rule of law, because they are both ex post facto and directed at particular individuals and hence pose an especially strong threat to individual liberty.
    Second, as is frequently the case, one can argue that a single violation of the rule of law, considered in isolation, will do little harm, but may do good. But this line of reasoning is inconsistent with the rule of law, the realization of which requires that we adhere to the rule of law values as a rule and not on the basis of ad hoc judgments about particular cases.
    Third, one reason for viewing the rule of law as a rule rather than a factor to be considered on a case-by-case basis is the problem of slippery slopes. If you think of slippery slope arguments as fallacious, I urge you to read Eugene Volokh's important work on this topic--go here for html and here for pdf.
    Fourth and finally, two wrongs don't make a right. The fact that Archer's peerage may itself be unjust or illegitimate--because all such titles are suspect, doesn't justify a bill of attainder. Rather, it would normally justify a prospective law that ends titles of nobility.

20 Questions Redux There is a new 20 Questions feature in the blogosphere--this one from Crescat Sententia. Borrowing a terrific idea from Howard Bashman's How Appealing, this series poses the interrogatories to bloggers. The first set was served on Daniel Drezner.

New Conspirator David Bernstein has joined the Conspiracy. Another coup for Eugene.

Burdens & Science Elihu Gerson at Technical Work has a very interesting post on the role of burdens of proof in science. Here is a taste:
    When scientists claim to make discoveries, their work is subject to review and test. While a discovery is still provisional, those who want to build upon it must rehearse the evidence and arguments for it when they write papers for the journals. As the discovery becomes more widely accepted, the amount of justification required for relying on it diminishes. After a while, referees start taking it for granted, and-- eventually-- reject papers that do not include the discovery (at least tacitly) or that argue against it. At that point, when acceptance has become obligatory, the discovery is established. Newer work which does not recognize it will be rejected as inadequate. In the extreme case, a scientist's persistent refusal to accept a discovery can result, not in the rejection of the discovery, but in the rejection of the scientist as aberrant in judgment.

Interview with Walzer IMPRINTS: A JOURNAL OF ANALYTICAL SOCIALISM has an an interview with Michael Walzer in the most recent issue. I urge you to take a look at this very thoughtful, interview which ranges of a wide range of topics, from the Iraq and Afghan wars to Israel/Palestine to contemporary political philosophy. Here is a taste:
    For myself, I think that one great mistake of contemporary academic philosophers, starting with Rawls himself, is the claim that our natural endowments are 'arbitrary from a moral point of view' and should not be allowed to have effects in the social world – or, better, the effects they have should never be philosophically ratified. As Rawls wrote, we have to 'nullify the accidents of natural endowment.' This puts philosophy radically at odds with ordinary morality. Sometimes, of course, that is a useful conflict, but in this particular encounter, philosophy does not fare well. Our natural endowments make us what we are, and what we are necessarily has consequences in the social world, and some, at least, of these consequences must be legitimate. John Rawls deserved the honours he won by writing A Theory of Justice – even if his intelligence was an accidental effect of the natural lottery. Beautiful men and women may not deserve the sexual and marriage offers that they get (we have different, but not entirely different, ideas about intelligence and beauty); still, they cannot be obliged to share their wealth or, as Phillipe Van Parijs has suggested, to compensate the losers in love. This last is one of Anderson's most telling examples, and she goes on to point out that those of us who are not beautiful have never organised to demand such compensation. There is something to learn even from political struggles that never happened!

20 Questions Surf on over to How Appealling for Howard Bashman's monthly twenty questions feature. This month's interview is with 11th Circuit judge Gerald Bard Tjoflat.

New Papers on the Net Here is today's roundup:
    Michael Alexeev (Indiana University Bloomington - Department of Economics), Eckhard Janeba (University of Colorado at Boulder - Department of Economics) and Stefan Osborne (United States of America - Department of Agriculture (USDA)) post Taxation and Evasion in the Presence of Extortion by Organized Crime. Here is the abstract:
      We model the taxation behavior of a revenue maximizing government in the presence of tax evasion by firms and the existence of a competing tax collector in the form of organized crime (the "mafia"). In order to evade taxes, the firm must shift some of its sales underground, possibly incurring costs. We show that the government's optimal tax rate and revenue in equilibrium crucially depend on the importance of public goods or, equivalently, the efficiency of their production. When public goods can be produced cheaply, both the state's tax rate and tax revenues are lower in the presence of the mafia than without it. However, when public goods are difficult to provide, the government benefits from the fact that the mafia’s taxation imposes costs on the underground activities of the firms. The firms, on the other hand, are typically hurt by the mafia’s presence when public goods are not important and benefit from it otherwise. The joint payoffs of all players are higher with the mafia than without it if public goods are difficult to produce, but may become lower at the other extreme.
    Kevin Chen, Zhihong Chen and Kuo-Chiang Wei (Hong Kong University of Science & Technology) post Disclosure, Corporate Governance, and the Cost of Equity Capital: Evidence from Asia's Emerging Markets. Here is the abstract:
      This paper examines the effects of disclosure and other corporate governance mechanisms on the cost of equity capital in Asia's emerging markets with newly released surveys from Credit Lyonnais Securities Asia (CLSA). We find that both disclosure and non-disclosure corporate governance mechanisms have a significantly negative effect on the cost of equity capital. In addition, the effect of non-disclosure governance mechanisms is more profound than that of disclosure on the cost of equity capital. Specifically, after controlling for beta and size, when a firm improves its aggregate non-disclosure corporate governance ranking from the 25th percentile to the 75th percentile, its cost of equity capital is reduced roughly by 1.26 percentage points, while the corresponding reduction in the cost of equity capital for the same improvement in disclosure is 0.47. Finally, we find that country-level investor protection and firm-level corporate governance are both important in reducing the cost of equity capital. Our findings suggest that, in emerging markets where infrastructural factors, such as the legal protection of investors and the overall level of corporate governance, are not well established, reducing the expropriation risk by strengthening overall corporate governance appears to be more important in reducing the cost of equity capital than adopting a more forthright disclosure policy.
    That's all for this morning.

Sunday, August 03, 2003
Plain Meaning I've been planning a post on "textualism" and statutory interpretation, but in the meantime, catch this Connecticut statute:
    The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
Courtesy of Howard Bashman.

Intellectual Property and Indigenous Knowledge Here are two recent articles on this very interesting topic, both just up on Westlaw:
    Graeme W. Austin's (University of Arizona) article entitled RE-TREATING INTELLECTUAL PROPERTY? THE WAI 262 PROCEEDING AND THE HEURISTICS OF INTELLECTUAL PROPERTY LAW, 11 Cardozo J. Int'l & Comp. L. 333 (2003) is now available on . Here is a taste:
      The WAI 262 proceeding provides an important opportunity to engage rigorously with the task of defining the role of intellectual property in the nation state. At its heart, the WAI 262 claim challenges the right of the Crown to set cultural policies in areas that affect the interests of Maori. In addition to challenging policies that the Crown has adopted in the past, the claimants want recognition of their right, grounded in the principle of tino rangatiratanga, to determine the future direction of cultural policy in Aotearoa/New Zealand.
      There are parallels in the WAI 262 claim to debates that have ranged in other countries, including the United States, about the privatization of intellectual property. In the U.S. copyright context, for instance, fierce debates are occurring about whether control by central government is appropriate and useful, given the opportunities afforded by technological self-help and private law mechanisms, such as contract. At the same time, immunization of intellectual property law from democratic processes is also occurring as a result of the increasing internationalization of intellectual property law. One of the tasks for the Tribunal may be to decide whether, even in a constitutional framework that is structured in part around the kawanatanga/te tino rangatiratanga divide, it is appropriate to remove control of important aspects of cultural policy development from the scrutiny of central government.
    Shubha Ghosh, REFLECTIONS ON THE TRADITIONAL KNOWLEDGE DEBATE, 11 Cardozo J. Int'l & Comp. L. 497 (2003). Here is a taste:
      There is one recurring problem in this new world order, and this problem appears in the traditional knowledge debate. What if a state or a group within the state wants to opt out of the market? By this question, I do not mean the use of protectionist policies that balkanize the market. I mean a decision that market mechanisms are not the appropriate way to deliver resources. Phrased another way, does the new order commodify everything or is it possible for a state or a group within the state to opt out? These issues are particularly salient for traditional knowledge. What if a traditional knowledge holder decides not to market a product? Should they be given this right? To make the example more compelling: what if a traditional knowledge holder has the cure for cancer? A Western company wants to help in marketing the cure and is willing to negotiate with the holder for the rights. The knowledge holder believes that such marketing uses of the cure is not appropriate. Furthermore, he believes that the knowledge should only be used for the ritual endemic to his group. Should the knowledge holder have the right to say no? Or should a utilitarian calculus dictate marketing or other forms of dissemination?
There are more papers on this topic in the same issue of the Cardozo journal. Fascinating topic!

Call for Papers: Deliberation, Desires, and Emotions: A Debate among Medieval and Contemporary Philosophers
    A bilingual conference to be held at Universit de Montreal, May 6-8, 2004 Conference organizers: Fabienne Pironet (Universit de Montreal) & Sarah Stroud (McGill University) & Christine Tappolet (Universit de Montreal) Both medieval and contemporary philosophers have pondered the nature and form of practical deliberation. They have debated the nature of the premisses used in deliberation, the conclusion of the process of deliberation, and the relation between the two. They have considered the role of desires and emotions in deliberation. They have analysed the ethical significance of the deliberative process and its importance for free action. This bilingual international conference seeks to bring together scholars whose most recent research addresses such questions from either a medieval or a contemporary perspective. Authors are hereby invited to submit either a paper of a maximum of 4000 words or, alternatively, an abstract of 800 to 1000 words, on any topic falling under the conference themes. Papers may be written and delivered in either English or French. Submissions by graduate students are especially encouraged. Submissions must be received by September 2, 2003; send three copies to: Fabienne Pironet Universit de Montr al D partement de philosophie C.P 6128, Succursale Centre-ville Montreal, QC H3C 3J7 Please attach a cover letter with the following information: - your e-mail and postal addresses - your institutional affiliation - your status (professor, post-doc, graduate student, etc.) - whether you are passively bilingual (i.e., able to understand spoken French; at least minimal comprehension of spoken French is desirable). The evaluation process will be completed and the results announced by October 15, 2003.

Saturday, August 02, 2003
Wittgenstein in the Courts Must reads posts, here and here, from Steven Wu on Legal Ramblings.

Vic Fleisher on Terror Futures Over at the marvelous Tax Policy Blog, Vic Fleischer has a nice post on the terrorism futures market. Forgive me for the following, unsupported & unreasoned opinion: the market was a good idea and the "heads will roll reaction" is political pandering of the very worst sort. Off my chest!

Call for Papers: Unassumable Responsibility
    'Unassumable Responsibility: New Perspectives on Freedom, Justice and Obligation' Conference 22-23 September, 2003 National Institute of Humanities Australian National University Canberra, Australia This conference aims to bring together scholars in the humanities, theoretical social sciences and critical legal theory to discuss the applicability of recent treatments of the question of responsibility in Continental Philosophy to contemporary issues. In particular, it addresses the theme of responsibility in the absence of an identified subject of action. The importance of this theme is that it provides a possible means of conceptualizing responsibility apart from the determination of individual or legal culpability. For this conference, we seek papers that either extend theorization of un-assumable responsibility, or consider its practical value for analyzing contemporary ethical and political problems. Issues to which this theme might be applied include, but are not limited to, hospitality to strangers and refugees, forgiveness and reconciliation in contexts of past injustice, responsibility in the context of new bio-technologies, consideration of war crimes and of collective guilt, social responsibility for sexist or racist speech and actions, or state legitimation and political violence. For further information see:

Zywicki on the Rule of Law Todd J. Zywicki's essay, The Rule of Law, Freedom, and Prosperity, 10 Sup. Ct. Econ. Rev. 1 (2003) is newly available on Westlaw. Here is a taste:
    Commentators on the rule of law often insist that it is difficult to define the concept of the rule of law. This is untrue. Although there may be disagreement over the importance or desirability of the rule of law as a virtue, there is a fairly well-understood core understanding of its meaning. Indeed, the fact that the rule of law has spawned so many detractors indicates that its meaning is well-understood among both enthusiasts and detractors.
    Since Dicey restated the rule of law in the late Nineteenth Century in application to modern constitutional republics, there has been a general agreement as to the content and meaning of the rule of law. Dicey identified three fundamental characteristics of the rule of law as it emerged in Britain: (1) the supremacy of regular law as opposed to arbitrary power, i.e., the rule of law, not men; (2) equality before the law of all persons and classes, including governmental officials; and (3) the incorporation of constitutional law as a binding part of the ordinary law of the land. Although Dicey spoke primarily to the historical development of the rule of law in Britain, the core understanding of the rule of law that he articulated has remained remarkably stable since he wrote and has been readily generalizable to a universal understanding of the rule of law. There has been some updating and clarification, but he identified many of the values of the rule of law that comprise its core meaning today.

Friday, August 01, 2003
    Copynorms are the informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
    Introduction Can the music and film industries make a real dent in peer-to-peer filesharing by bringing lawsuits against individuals? I believe the answer is no, unless the publicity surrounding the lawsuits begins to change social norms--the informal web of beliefs about what constitutes acceptable behavior. Last month, I posted on Copynorms and Litigation Costs, observing that the key to this question is litigation costs. The average user of a peer-to-peer program such as KazaA simply cannot afford to go toe to toe with the RIAA in federal court. (It will be interesting to see if some judgment proof students decide to represent themselves pro per or manage to get assistance from a law-school based clinic.) Hence, you must settle with the RIAA--agreeing to pay a smallish judgment and stop using P2P to download or share copyrighted material. On the other hand, even the RIAA can only afford so many lawsuits. The RIAA will need to be very careful if it begins to file a massive number of suits. If the RIAA makes too many mistakes identifying defendants, they will begin to run into countersuits and Rule 11 motions. So the RIAA cannot automate the process of filing suits, they must actually investigate each complaint. It appears that they have been doing just that.
    Hundreds of Lawsuits Today there is a story in the New York Times by Amy Harmon entitled Efforts to Stop Music Swapping Draw More Fire:
      Pacific Bell Internet Services, an SBC subsidiary, is one of dozens of Internet providers that have received a flood of subpoenas from the record industry in recent weeks seeking the identity of subscribers suspected of illegally sharing music files. Most of them are turning over the information, which the music industry has said it will use to file hundreds of lawsuits against online traders within the next six weeks.
    And what will be the effect? I think that there is a great deal of uncertainty about this question. If the RIAA is smart, they will have taken some care to screen their defendants. (No children of Senators!) If hundreds of suits are filed in a short period, there will surely be a good deal of media attention, not to mention reaction on the Internet via blogs, IM, listservs, etc. My guess is that the RIAA has a publicity campaign waiting in the wings to counter the inevitable firestorm of criticism. But will it be enough?
    Three Scenarios My guess is that the RIAA is about to unleash a chaotic process, the effects of which are unpredictable, but here are some possibilities, in descending order of liklihood:
      --The Tempest in a Teapot Scenario. I think the most likely scenario is pretty boring. Hundreds of lawsuits and lots of publicity are followed by gradually diminishing media interest. After a few weeks, the RIAA offensive is old news. The lawsuits themselves have little or or no affect on social norms, because hundreds of lawsuits is only a drop in the bucket. Millions use P2P to copy MP3 files. If the RIAA files only a few hundred lawsuits, most users of P2P won't know anyone who get's prosecuted or anyone who knows anyone. Imagine that prohibition had kicked off with "hundreds of criminal prosecutions" for alcohol trafficking! Can you say "drop in the bucket"?
      --The Backlash Scenario. Hundreds of lawsuits generate tons of bad publicity. The media decides to focus on the most sympathetic defendants. Imagine the teen mom who got herself into the big state university and now has to pay next year's tuition money to a record company, because the the boyfriend of the classmate with whom she shares a low-rent house used her computer and Earthlink account to share thousands of MP3 files. Key Senators and Represenatives hear from their kids about how the RIAA is harassing college students. Public opinion swings against the RIAA, which blows the public relations campaign with overkill. Over the objections of their PR consultants, the industry pushes the "Filesharing is theft" line way too hard. An industry lawyer testifies that "Filesharing is morally no different than robbing a liquor store." Parents who have been allowing their kids to engage in filesharing get angry. The RIAA quietly folds the litigation campaign, realizing that its continuation might actually result in legislation weakening the Digital Millenium Copyright Act.
      --Norm Shift. Hundreds of lawsuits generate sympathetic publicity. The RIAA's publicity campaign strikes just the right note. Parents and teenagers have serious talks about the morality of filesharing. The media focuses on defendants with bad hair and an attitude to match. The RIAA cleverly targets one defendant at each of the nation's 500 largest colleges and universities, resulting in a wave of fear and remorse on college campuses. As a result, the social norms gradually change. It is no longer "cool" to file share. As filesharing begins to shift to public internet access points, it just becomes too much of a hassle. Apple's service becomes really popular, and the tide begins to turn.
    Copynorms and the Justification for Copyright Does that third scenario sound plausible to you? I may be naive, but I think that part of the industry's problem is that file sharing is not like theft. Everyone understands that consumption of intellectual property is not "rivalrous" in the economic sense. When I copy an MP3 file, I don't preclude you from copying or listening to the your own version of the work (whether on CD, record, MP3, or reel-to-reel tape.), but when I steal your car, I preclude your use of the resource. That's why social attitudes towards filesharing are different than social attitudes towards shoplifting CDs. The case for intellectual property rests on a more complicated story about incentives.
    The Mythology of the Big Record Company But, rightly or wrongly, the public is very suspicious of the story about incentives that justifies copyright--especially in the case of recorded music. The mythology is that copyright serves the interests of big music companies and not artists. I don't know enough about the music business to say whether the popular mythology has a basis in fact. My pro-market instincts bias me in favor of the view that the myth is a myth, but I am open to persuasion. But underneath the myth is a more fundamental problem. The case for intellectual property is complex and uncertain. (Boldrin and Levine's Intellectual Property Page gives links to various papers and discussion on the current controversy among economists as to whether intellectual property is justified.) Intellectual property rights interfere with decentralized decisionmaking concerning the efficient use or resources: bluntly, intellectual property rights interfere with property rights in tangible resources. I'm not saying I'm against intellectual property. Rather, my point is that the case for intellectual property is much less intuitive and far weaker than the case for property in tangible things.
    Undermining Copynorms The intellectual property industry (especially the RIAA and MPAA) has successfully lobbied for particular pieces of legislation (the Copyright Term Extension Act and some provisions of the Digitial Millenium Copyright Act) which are rightly viewed as unjustifiable rent seeking--wealth transfer (some would even call it "theft") by legislation. When the copyright industry engages in conduct that violates basic norms of political morality, they lose the moral highground. And this is important because norm creation is a complicated business. One mechanism that operates in norm creation is the diffusion of elite opinion. Hence, it is important that the copyright industry has enraged elite opinion makers like Larry Lessig. When intellectual property lawyers call the legal academy, the "copyleft" and openly express hostility and contempt for serious scholarship on copyright policy, they may well be doing more damage than they imagine is possible to their own client's interests. And all of the old wounds are likely to be opened when the RIAA's litigation offensive begins, and draws the inevitable battle of the pundits. The litigation offensive would look a lot more palatable to opinion makers if it were accompanied by a dramatic act of compromise on the public domain front--industry endorsement of the Eric Eldred Act (perhaps with some modifications) would make all the difference in the world. What are the chances of that? Zero! And I would say "less than zero," but that would be an exaggeration.
    The next six weeks should be very interesting.
Update: I've collected additional resources on copynorms, go here for the links.

Conference in honour of Michael Ayers Continues at Oxford At Wadham College, starting yesterday and continuing through tomorrow there is a gathering entitled Knowledge and Reality: A Conference on Philosophy and its History in honour of Michael Ayers. The speakers include Bill Brewer (Oxford), William Child (Oxford), Daniel Garber (Princeton), Hannah Ginsborg (Berkeley), Menno Lievers (Utrecht), Beatrice Longuenesse (Princeton), A.D.Smith (Essex), Barry Stroud (Berkeley), Edwin McCann (University of Southern California).

Issacharoff & Pildes on an Institutional Process Approach to Civil Liberties in Wartime Samuel Issacharoff (Columbia) and Richard Pildes (NYU) have uploaded Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime. Here is their abstract:
    Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes, and to re-interpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times, and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks if any should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in this country during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress as well as the executive has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the president and congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers.

New Papers on the Net Here is today's roundup:
    Nelson Lund (George Mason) posts 'Equal Protection, My Ass!'? Bush v. Gore and Laurence Tribe's Hall of Mirrors, forthcoming in Constitutional Commentary. Here is the abstract:
      A lengthy Harvard Law Review essay by Laurence H. Tribe - eroG v. hsuB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors - reaches the following conclusion about the Court's holding in that case: "EQUAL PROTECTION, MY ASS!" Notwithstanding Professor Tribe's vulgar expression of contempt for the Court, his essay is extremely sophisticated, and it deserves to be read carefully. Much of Professor Tribe's essay is taken up with peripheral discussions, the daunting volume and dazzling intricacy of which serve primarily to distract the reader's eye from the absence of any solid arguments that can support his two principal conclusions about the decision in Bush v. Gore. Those two conclusions can be stated very simply: the Court's equal protection ruling was untenable as a matter of law, and the case in any event was technically nonjusticiable. On the basis of these conclusions, Professor Tribe renders this further verdict: the five "Justices in the Bush v. Gore majority have little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with 'We the People' as the ultimate source of sovereignty in this republic."
    Daniel Esty (Yale) posts Environmental Protection in the Information Age, forthcoming in the New York University Law Review. From the abstract:
      Information gaps and uncertainties lie at the heart of many persistent pollution and natural resource management problems. This article develops a taxonomy of these information gaps and argues that the emerging technologies of the Information Age will transform the potential to fill these gaps and thus expand the range of policy tools and strategic options available for addressing environmental challenges. Remote sensing technologies, modern telecommunications systems, the Internet, and computers all promise to make it much easier to identify harms, track pollution flows and resource consumption, and measure the resulting impacts. These developments will make possible a new structure of institutional responses to environmental problems including a more robust market in environmental property rights, expanded use of economic incentives and market-based regulatory strategies, improved command and control regulation, and redefined social norms of environmental stewardship. Likewise, the degree to which policies are designed to promote information generation will determine whether and how quickly new institutional approaches emerge. While there exist some serious potential downsides to Information Age environmental protection, the promise of a more refined, individually tailored, and precise approach to pollution control and natural resource management looks to be significant.
    Peter Schuck (Yale) uploads Importing Diversity: Immigration, forthcoming as Chapter 4 of his book, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE, Harvard University Press, 2003. Here is the abstract:
      The chapter begins by tracing the history of immigration to the United States. This brief summary emphasizes the immense demographic changes and social and political conflicts that immigration has engendered, the laws that have shaped it, and some of the many ways in which the 1965 immigration reform have transformed American society. The chapter then discusses the debate over multi-culturalism, English language policy in general, and bilingual education in particular. A final section analyzes the "diversity visas" program enacted in 1990. I propose a more diversity - and choice-friendly approach to bilingual education, as well as a scrapping of the "diversity visas" program.
    Daniel Solove (Seton Hall) uploads Identity Theft, Privacy, and the Architecture of Vulnerability, forthcoming in the Hastings Law Journal. From the abstract:
      This Article contrasts two models for understanding and protecting against privacy violations. Traditionally, privacy violations have been understood as invasive actions by particular wrongdoers who cause direct injury to victims. Victims experience embarrassment, mental distress, or harm to their reputations. Privacy is not infringed until these mental injuries materialize. Thus, the law responds when a person's deepest secrets are exposed, reputation is tarnished, or home is invaded. Under the traditional view, privacy is an individual right, remedied at the initiative of the individual. In this Article, Professor Solove contends the traditional model does not adequately account for many of the privacy problems arising today. These privacy problems do not consist merely of a series of isolated and discrete invasions or harms, but are systemic in nature. They cannot adequately be remedied by individual rights and remedies alone. In contrast, Professor Solove proposes a different model for understanding and protecting against these privacy problems. Developing the notion of "architecture" as used by Joel Reidenberg and Lawrence Lessig, Solove contends that many privacy problems must be understood as the product of a broader structural system which shapes the collection, dissemination, and use of personal information. Lessig and Reidenberg focus on "architectures of control," structures that function to exercise greater dominion over individuals. Solove argues that in addition to architectures of control, we are seeing the development of "architectures of vulnerability," which create a world where people are vulnerable to significant harm and are helpless to do anything about it. Solove argues that protecting privacy must focus not merely on remedies and penalties but on shaping architectures. Professor Solove illustrates these points with the example of identity theft, one of the most rapidly growing types of criminal activity. Identity theft is often conceptualized under the traditional model as the product of disparate thieves and crafty criminals. The problem, however, has not been adequately conceptualized, and, as a result, enforcement efforts have been misdirected. The problem, as Solove contends, is one created by an architecture, one that creates a series of vulnerabilities. This architecture is not created by identity thieves; rather, it is exploited by them. It is an architecture of vulnerability, one where personal information is not protected with adequate security. The identity thief’s ability to so easily access and use our personal data stems from an architecture that does not provide adequate security to our personal information and that does not afford us with a sufficient degree of participation in the collection, dissemination, and use of that information. Understanding identity theft in terms of architecture reveals that it is part of a larger problem that the law has thus far ignored. Solove then discusses solutions to the identity theft problem. He engages in an extensive critique of Lynn LoPucki's solution, which involves the creation of a public identification system. After pointing out the difficulties in LoPucki's proposal, Solove develops an architecture that can more appropriately curtail identity theft, an architecture based on the Fair Information Practices.
    Robert Stavins (Harvard, Kennedy School) posts Market-Based Environmental Policies: What Can We Learn from U.S. Experience (and Related Research)?. From the abstract:
      This paper reviews lessons that can be learned from U.S. experiences with market-based environmental policies and from related research. Highlights of U.S. experience are summarized with four categories of policy instruments: pollution charges; tradable permits; market friction reductions; and government subsidy reductions. Normative lessons are considered in three areas: design and implementation; analysis of prospective and adopted systems; and identification of new applications. Positive political economy lessons are also reviewed.
    Charles Koch (William and Mary) posts The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems, forthcoming in the Indiana Journal of Global Legal Studies. From the abstract:
      Members of the transatlantic legal cultures are circling the globe offering advice to emerging legal systems. Many of these emerging systems already have in place some version of the two "competing" transatlantic models, civil law or common law; others retain their customary or religious legal systems or have merged these with some borrowed system. Regardless of the base system, judges are the key to reform. Able and impartial judges can make any dispute resolution scheme work. Judges can be neutrals, committed to fairness rather than the furtherance of one interest; they can be equalizers, assuring justice in the face of unequal litigation resources. Concentrating reform on judges will be particularly potent because judges make up a discrete and recognizable group within a dispute resolution machinery so that direct efforts to assure their competence and independence should be efficient and transparent. Whereas common law litigation relies on lawyers, judges dominate civil law litigation. Because the success of the civil law litigation depends on its judiciary, those systems have developed various ways to optimize the performance of their judges. This article attempts an “outsiders” analysis of the possible advantages of the civil law judiciary and its judge orientation procedures. In support, it identifies several instances in which the US common law system has captured some of these advantages in its administrative tribunals. These advantages then may be adaptable as well as powerful reform options for any legal culture.
    Charles Baron (Boston College) posts Life and Death Decision-Making: Judges v. Legislators as Sources of Law in Bioethics, forthcoming in Ragion Pratica. From the abstract:
      In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the "right to die." When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the Nineteenth Century predecessor courts that had developed law to respond to technological developments such as the railroad, telegraph, and telephone, felt required to decide each case brought before them. Unlike legislatures, they could do so without binding themselves to sweeping rules that would govern all cases in the future. Their decisions drew upon precedent and created precedent, but their opinions left room to accommodate future cases whose facts might suggest that the principles employed should be extended, retracted, or otherwise modified. Unlike legislatures, they were not subject to direct political control nor could they justify their decisions simply as an expression of majority will. Rather, they carried the burden of writing opinions that justified the retroactive application of the legal principles announced in each case. Their opinions were subjected to critical reading by lawyers, scholars, students, the press, the general public, and by judges required to write later opinions in later cases. The result is an example of the common law dialectic process celebrated by Lord Coke when he claimed that the law of England was "by many succession of ages . . . fined and refined by an infinite number of grave and learned men." Some of the principles employed in early cases such as Quinlan have been abandoned. Others have been built upon. The process continues.
    Phyllis Goldfarb (Boston College) posts Counting the Drug War's Female Casualties, forthcoming in the Journal of Gender, Race & Justice. From the abstract:
      This article examines national drug policies through the lens of gender. One of the consequences of current drug policies, which focus almost exclusively on punishment, is that women's incarceration rates have risen astronomically and at even higher rates than those of men. A closer look at the underlying factual scenarios of many of these cases reveals that a high percentage of incarcerated women are non-violent first-time offenders who were peripherally involved in drug activity, frequently through a relationship with a principally involved man. Yet most sentencing schemes, including the federal system, enacted during the height of the war on drugs provide limited discretion to adjust for this reality. Women in a relationship with a person engaged in drug activity may suffer penalties not only through accomplice liability but also through the implementation of constructive possession doctrines. Even in the absence of criminal activity, a woman involved with a drug offender may suffer eviction, forfeiture, and the imposition of a greater disproportion of family responsibilities under increasingly harsh conditions. Women incarcerated for drug offenses are disproportionately the primary caretakers, and often the sole caretakers, of children. Many sentencing schemes, including the federal sentencing guidelines, limit consideration of family circumstances. In light of these realities, incarcerated women experience considerable psychological trauma around issues of bonding, separation, and parenting, yet they receive few services directed to these issues. Consequently, incarceration may carry different meanings for inmates who are primary caretakers of children - a disproportionately female category - than for those who are not primary caretakers. By elaborating many contexts in which drug war policies have affected women's lives, this article provides an illustration of the mechanisms by which ostensibly gender neutral policies can become instruments of gender bias. Underlying this project is the hope that by counting the particular hardships that the drug war has visited on women, their suffering will begin to count in the minds of policymakers positioned to ameliorate it.
    John Allison (Texas, Business), Mark Lemley (U.C. Berkeley), Kimberly Moore (George Mason) and R. Trunkey (George Mason) post Valuable Patents. From the abstract:
      While the theory of the patent system is premised on the idea that patents will be used to exclude competitors, only a tiny fraction of patents are ever enforced. Legal and economic scholars have theorized as to how to identify valuable patents based on their individual characteristics. In this paper, we present the results of the largest empirical study ever conducted of the patent system. We compare the characteristics of litigated patents to those of issued patents generally, and we find important differences in a range of dimensions. These data confirm some predictions in the literature regarding patent value and refute others. New patents are more likely to be litigated than old patents. Foreign patent owners are less likely to litigate than domestic patent owners. Patents that issue to individuals or small companies are much more likely to be litigated than those that issue to big companies, though many of those patents have changed hands by the time they are brought to court. Patents that cite more prior art are more likely to be litigated, and those that are litigated tend to be cited more elsewhere. Most significantly, there are substantial differences between industries in the likelihood of patent litigation. Patents in the mechanical, computer, and medical device industries are significantly more likely to be litigated, for example, than patents in the chemical and semiconductor industries. In the paper, we explore the implications of these findings in detail. Taken together, the data give a profile of a few valuable patents that stand out from a field of ordinary ones. They are the patents that their owners spend the most time and money in prosecuting. They are the ones that competitors recognize as most important. They are concentrated in a few industries in which patents play a more significant role in encouraging innovation. And they are patents that issue to individuals or small companies with asymmetric stakes in patent litigation, not to large companies. These conclusions in turn have significant implications for the design of the patent system, patent reform efforts and patent valuation theories - implications we consider at the end of the paper.
    William Klein (UCLA) and Gaurang Gulati (Georgetown) post Economic Organization in the Construction Industry: A Case Study of Collaborative Production Under High Uncertainty. From the abstract:
      A central question of law and economics is how complex productive activity is initiated, organized, and carried out successfully without central planning. What are some of the most important organizational devices and what is their function? The effort to respond to this type of inquiry has led, among other things, to the dichotomy between transactions within firms and transactions across markets - also referred to as the make-or-buy decision or the outsourcing decision. This dichotomy, leading to explanations of the functions of firms and markets, has proved to be a powerful tool in analysis of economic organization. As with most simple descriptions of complex reality, however, it emphasizes some aspects of reality at the expense of others and is not a good fit in certain settings. One such setting is construction, where the organization of the economic activity (the construction project) is mostly contractual (technically, across markets), but where vital organizational ingredients are networks of relationships as well as collaboration and teamwork, generated in large part by pride, commitment, and reputation. The present paper is a case study that examines those ingredients and others that play, at most, a minor role in traditional thinking about firms and markets. This study also illustrates the notion that bilateral contracts are part of a mosaic of such contracts, with the performance of each dependent on the performance of the others, and contractual relationships exist within an industry in which individual projects are of limited duration but the participants are in for the long haul. Perhaps an even more interesting and important observation is that in construction, and no doubt in other economic activities as well, it is not the firm that is the locus for production. Nor does the idea of market exchanges between firms properly describe the productive process. Instead, production is in the hands of teams of people who are associated with various firms but who operate autonomously with respect to their firms. The teams may perform the functions of firms but they lack the critical firm attribute of hierarchical control. Related to this and also important in at least some settings is the manner of selection of team members: the client/owner may contract with, say, an architectural firm but expects to be working with particular, identified individuals within that firm. This raises the question: when a person contracts for services, what is the role of the individual (e.g., an architect or a lawyer) and what is expected of the firm of which that individual is a member? And what does this tell us about the nature and the boundaries of firms? We also offer some observations about fixed fees versus hourly rates and other contingent compensation.
    Robert Cooter (U.C. Berkeley) and Ariel Porat (Tel Aviv, Law) post Decreasing Liability Contracts. Here is the abstract:
      Like constructing a building, performance on many contracts occurs in phases. As time passes, the promisor sinks more costs into performance and less expenditure remains. For phased performance, we show that optimal liability for the breaching party decreases as the remaining costs of completing performance decrease. In brief, efficiency requires a decreasing liability contract. To implement such a contract, we recommend deducting past expenditure on incomplete performance from liability. We show that progress payment contracts, which are commonplace in some industries, are materially equivalent to decreasing liability contracts. Our analysis should prove useful for elucidating progress payment contracts and for drafting and litigating phased contracts.
    Gregory Mitchell (Florida State) posts Tendencies Versus Boundaries: Levels of Generality in Behavioral Law and Economics, forthcoming in the Vanderbilt Law Review. Here is the abstract:
      This paper, written in reply to Professor Robert Prentice's forthcoming paper analyzing my skeptical approach to behavioral law and economics (Robert A. Prentice, Chicago Man, K-T Man, and the Future of Behavioral Law and Economics, 56 VAND. L. REV. (forthcoming 2003)), offers some additional thoughts in favor of a modest approach to revising the law's assumption of rationality, as compared to the bolder approach argued for by Professor Prentice. After discussing how the ambiguous nature of much of the evidence on human rationality may explain some of the differences between Professor Prentice and myself, I turn to the larger question of whether legal decision theorists describe behavior at too general a level to be useful in the formulation of legal policy. In particular, I discuss the tendency of legal decision theorists to speak in terms of "behavioral tendencies" and how this approach to behavioral description may impede the progress of behavioral law and economics. I contend that there has been too great an emphasis on finding and describing behavioral tendencies toward irrationality, without due regard for the boundary conditions on these supposed tendencies. As a result, much of the interesting and important information about the constraints on rational versus irrational behavior is consigned to ceteris paribus clauses and treated as "noise" that should be ignored and controlled rather than elucidated and understood.
    Stephen Bainbridge (UCLA) posts two papers:
      The Business Judgment Rule as Abstention Document. Here is the abstract:
        The business judgment rule is corporate law's central doctrine, pervasively affecting the roles of directors, officers, and controlling shareholders. Increasingly, moreover, versions of the business judgment rule are found in the law governing the other types of business organizations, ranging from such common forms as the general partnership to such unusual ones as the reciprocal insurance exchange. Yet, curiously, there is relatively little agreement as to either the theoretical underpinnings of or policy justification for the rule. This gap in our understanding has important doctrinal implications. As this paper demonstrates, a string of recent decisions by the Delaware supreme court based on a misconception of the business judgment rule's role in corporate governance has taken the law in a highly undesirable direction. Two conceptions of the business judgment rule compete in the case law. One views the business judgment rule as a standard of liability under which courts undertake some objective review of the merits of board decisions. This view is increasingly widely accepted, especially by some members of the Delaware supreme court. The other conception treats the rule not as a standard of review but as a doctrine of abstention, pursuant to which courts simply decline to review board decisions. The distinction between these conceptions matters a great deal. Under the former, for example, it is far more likely that claims against the board of directors will survive through the summary judgment phase of litigation, which at the very least raises the settlement value of shareholder litigation and even can have outcome-determinative effects. Like many recent corporate law developments, the standard of review conception of the business judgment rule is based on a shareholder primacy-based theory of the corporation. This article extends the author's recent work on a competing theory of the firm, known as director primacy, pursuant to which the board of directors is viewed as the nexus of the set of contracts that makes up the firm. In this model, the defining tension of corporate law is that between authority and accountability. Because one cannot make directors more accountable without infringing on their exercise of authority, courts must be reluctant to review the director decisions absent evidence of the sort of self-dealing that raises very serious accountability concerns. In this article, the author argues that only the abstention version of the business judgment rule properly operationalizes this approach.
      The Tournament at the Intersection of Business and Legal Ethics. From the abstract:
        Prepared for a symposium on the role business and legal ethics played in the Enron, WorldCom, and other recent corporate governance scandals, and the relationship (if any) between business ethics and the legal profession"s rules of professional responsibility, this paper examines the changes effected by Section 307 of the "Public Company Accounting Reform and Investor Protection Act" (popularly known as the Sarbanes-Oxley Act). Section 307 commanded the Securities and Exchange Commission to develop rules of professional conduct for lawyers appearing and practicing before it. The paper argues that Section 307 and the SEC's rules thereunder do too little to address the strong incentives lawyers have to refrain from antagonizing the corporate managers who hire and fire them. The paper uses tournament theory to explore the incentives of lawyers in large corporate law firms and in-house legal departments. (The paper is deliberately agnostic on the much debated question of whether tournament theory is a valid model or simply a useful metaphor.) Lawyers who win the tournament develop a set of skills, attitudes, and cognitive biases that systematically skew their analysis of client conduct. Hence, both rational choice theory and behavioral economics predicts that such lawyers will turn a blind eye to client misconduct.
    Howard Wasserman (Florida International) posts The Trouble with Shadow Government, forthcoming in the Emory Law Journal. From the abstract:
      The terrorist attacks of September 11 and the subsequent War Against Terrorism have raised in many minds the possibility of a massive, perhaps nuclear, terrorist attack laying waste to all of Washington, D.C., killing the President and Vice President and destroying Congress and the federal government. President Bush's "shadow government," composed of members from each federal executive agency working from an undisclosed secure location, ready to step-in in the wake of an attack, reflects this newfound concern with continuity in the federal government. This Article considers the constitutional and structural problems raised by the terrorist attack scenario and the plans for government continuity. First, President Bush's plan (details of which have not been shared with the public) does not obviously provide for the safety of a proper statutory successor to the President, one person who will assume and exercise the "executive power" under the Constitution. Second, the plan does not appear to provide for continuity of Congress, but instead assumes that the executive branch alone provides sufficient continuity in the federal government without a functioning legislative branch. Third, there has been no discussion of the more important aspect of government continuity, the repopulation of the federal government and the replacement of those high officials in both political branches killed in any attack so as to bring the government up to full working speed. Most importantly, repopulation demands action not by the federal government, but by the several States, which are responsible for choosing, or controlling the process of choosing, new members of Congress and new Electors to choose a new President. This Article then suggests how succession, continuity, and, most importantly, repopulation of the federal government should function, through several proposed constitutional amendments and statutory changes that will enable the governmental structure to handle the new contingency and survive in a structurally and constitutionally sound and consistent form.
    Robert McGee (Barry University - Andreas School of Business) posts Some Comments on the Draft EU Constitution's Exit Proposal. From the abstract:
      This paper comments on the secession provision of the European Union's draft constitution. The author suggests changes to the language of the current draft that would better protect the rights of individuals who live in a nation that is a member of the EU.
And here is an additional paper of interest: