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.

This page is powered by Blogger. Isn't yours?
Tuesday, September 30, 2003
Weatherall on Geographic Indicators & Trademark Kim Weatherall has a good post on geographic indicators and trademark law. Bologna, anyone? And while you're at it, scroll down for Weatherall's post on dilution theory.

McCarthy on Trademark Thomas McCarthy (University of San Francisco) presents Recent Developments in Trade Mark Law in the United States and Australia today at the University Sydney.

Zittrain on the Effect of RIAA Mistakes I just caught up with the first case in which the RIAA misidentified a defendant in their litigation offensive against P2P. Here is a link to the Boston Globe story, which quotes Jonathan Zittrain as follows:
    Jonathan Zittrain, an associate professor of Internet law at Harvard Law School, said the dismissal shows that the record companies may find it tough to prevail if their lawsuits go to court. Their legal strategy assumes that most defendants will settle rather than fight, and the lawsuits are so damaging to their public image that they cannot afford protracted legal battles with alleged file-swappers, he added. ''This is a very high-stakes strategy for the record companies,'' he said. ''It's either going to work in the short term, or they're going to have to pull the plug on it.''
And there is also a New York Times story, which speculates about the reason for the mistake:
    An official of Mrs. Ward's Internet service provider, Comcast, said that the company had investigated the case and that it gave the right name associated with the Internet identifier, known as an I.P. number, that the industry lawyers demanded. But like many service providers, Comcast issues its I.P. numbers "dynamically," with the numbers shifting each time a user goes online. Both Comcast and the recording industry group say they can accurately trace the I.P. number back to a single user; nonetheless, identifying a particular user can be tricky.
All of this courtesy of Mary Hodder at bIPlog.

Ayers on Do Not Call Lists Ian Ayers (Yale Law School) has a good op/ed in the New York Times, suggesting compensated listening as solution to the Do Not Call imbroglio.

ACLU v. RIAA Courtesy of Will Baude of Crescat Sententia, this news:
    In a move that could complicate the RIAA's pursuit of peer-to-peer pirates, the American Civil Liberties Union said Monday it had filed court documents accusing the trade association of illegally using thousands of subpoenas to unmask alleged copyright infringers. The recording industry's subpoenas, filed under the Digital Millennium Copyright Act (DMCA), violated due process and constitutional rights shielding Internet users' anonymity, the ACLU claims.
As Baude observes, "This is not, of course, going to help the fight for copynorms."

Smith Turns off the Lights Steven Smith (University of San Diego - School of Law) has posted Recovering (From) Enlightenment? on SSRN. Here is the abstract:
    The American Constitution at its founding is often associated with "the Enlightenment," and modern liberal constitutionalism continues to be associated with what Bruce Ackerman refers to as "the spirit of the Enlightenment." This article contrasts the essential features of the classical or historical Enlightenment with those of the modern Enlightenment, as reflected in the thinking of theorists like Rawls, Dworkin, and others and as embodied in a good deal of modern constitutional doctrine. The article argues that the modern Enlightenment is more accurately viewed as an inversion than a continuation of the classical Enlightenment. Moreover, this inversion threatens to undermine the historic constitutional commitments - to freedom of speech, freedom of conscience, individual rights, and equality. Hence, those who are concerned to maintain the historic constitutional commitments might naturally wish for a recovery of the classical Enlightenment. But the prospects for such a recovery are not promising. And the principal obstacle to any such recovery is . . . the modern Enlightenment.

Wendel on Law and Disagreement W. Bradley Wendel (Washington and Lee Law School) has posted Civil Obedience (forthcoming Columbia Law Review) on SSRN. This paper promises to be very interesting. Here is the abstract:
    This paper is an attempt to construct a theory of legal ethics that takes justified moral disagreement as a central, rather than a marginal case. It assumes that people disagree in good faith about rights, justice, and moral obligations, but must nevertheless find a way to leave together in a stable, ordered society. The framework for resolving disagreement in an orderly fashion is obviously the law, which provides the benefit of coordinated collective action in the face of moral disagreement. In a reasonably well functioning democracy, the law also treats people who disagree with one another respectfully, by providing fair procedures for resolving disputes. Although we may disagree about specific moral issues, as citizens we all share the following beliefs: (1) people disagree in good faith about what rights and duties we should have, (2) our views about the matter in question are just that - our views, and not conclusive of the debate, (3) we need to treat others in the public debate with respect, and not act peremptorily toward them, and (4) the disagreement must end somewhere, and we need to move on. Because of our shared interests in interacting peacefully with those with whom we disagree, we have a reason to respect the resolution of moral questions provided by the law. For this reason, the law is authoritative for citizens over a wide domain of contestable moral issues. This conception of authority owes a great deal to Joseph Raz, as well as Jeremy Waldron's recent book Law and Disagreement. In order for a complex, highly technical body of law to perform this coordination function for ordinary citizens, there must be a body of experts who interpret and apply the law - that is, lawyers. Lawyers have a difficult dual role. They are ordinary moral agents in the same way as citizens, but they are also administrators of the legal system. My claim is that the moral agency of lawyers must be subordinated to their obligation to treat the law as an authoritative resolution of moral disputes, even in cases where the lawyer believes the law is morally wrong. This claim stands in contrast with many academic legal ethicists, who treat lawyers as ordinary moral agents first, and administrators of the law second. For example, Deborah Rhode argues that "[l]awyers can, and should, act on the basis of their own principled convictions, even when they recognize that others could in good faith hold different views." This position is incompatible with the coordination function of the law, which replaces the principled convictions of individuals with a distinctive social position on the matter, which is nevertheless authoritative for individuals. Lawyers commit a moral wrong, vis-a-vis the second-order moral reasons to treat the law as authoritative, if they act directly on the basis of their own principled convictions, rather than deferring to a legal rule on point. This sounds like the familiar "dominant view" of legal ethics, in which lawyers are supposed to serve as zealous advocates of their clients' interests, regardless of contrary moral considerations. My position differs significantly from the dominant view, however, in treating the law, rather than the preferences of clients, as the principal consideration for lawyers to take into account in their ethical deliberation. Lawyers who treat the law only instrumentally, as a "cost of doing business" which may be disregarded by a client intent on manipulating the law, undermine the capacity of law to serve as a stable framework for coordinated social action in the face of disagreement. In an Enron-type case involving "aggressive" accounting and blatant manipulation of legal norms, lawyers can still be criticized in moral terms. The difference is that the appropriate moral framework is not derived from the first-order reasons about which there exists persistent disagreement, but from second-order reasons relating to the coordination function of the law.

Wright on Legal Responsibility Richard Wright (Illinois Institute of Technology - Chicago-Kent College of Law) posts The Grounds and Extent of Legal Responsibility (forthcoming in the San Diego Law Review, Vol. 41) on SSRN. Here is the abstract:
    This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom. The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), (2) there was a superseding cause of the harm (an actual cause of the harm that (i) intervened between the defendant’s tortious conduct and the plaintiff's injury, (ii) was a necessary ("but for") cause of the plaintiff's injury, and (iii) was highly unexpected), or (3) the harm did not occur as part of the realization and playing out of one of the foreseeable risks that made the person's conduct tortious, before the hazards created by the realization of that risk had dissipated (the "risk playout" limitation). None of the three limitations match the usual academic prescription for limiting the extent of legal responsibility for tortiously caused harm, which would rely solely on a harm-matches-the-risk ("harm-risked") limitation that is often confused with, but which differs significantly from, the risk-playout limitation. However, as this article demonstrates, the results reached by the courts are consistent with the three stated limitations rather than the harm-risked limitation, despite the longstanding efforts of the academic drafters of the Restatements to install the harm-risked limitation as the sole, comprehensive limitation on the extent of legal responsibility for tortiously caused harm. These three limitations are neither exclusive nor absolute. Some of them do not apply or apply less broadly to some intentional torts and some strict liability actions. Moreover, there are other limitations on the extent of legal responsibility, such as the de-minimis-contribution limitation, as well as limitations on legal responsibility for certain types of losses – such as pure emotional distress, pure economic loss, and wrongful birth – that are more appropriately handled as categorical limitations on the scope of a person's duty rather than as limitations on the extent of legal responsibility for tortiously caused harm.

New Papers on the Net Here is today's roundup:
    Juridical Rhetoric in the Antebellum Debate over Slavery Jeannine DeLombard University of Toronto Abstract:
      This article addresses a central but overlooked contradiction in antebellum American culture: at a time when blacks were prohibited from testifying against whites in many American courtrooms, former slaves consistently presented themselves in print as, in the words of Frederick Douglass, "eye-witness[es] to the cruelty of slavery" and offered their personal narratives as, according to Harriet Jacobs, "testimony" to "what Slavery really is." Fashioning themselves and their anti-slavery writing in these terms, the article contends, formerly enslaved African-Americans like Douglass and Jacobs participated in a widespread antebellum tendency to figure the debate over slavery in legal language. Imagining the national slavery controversy as an ongoing criminal trial occurring in a vast courtroom, those who contributed to that debate depicted slavery as a crime, slaveholders as perpetrators and defendants, slaves as victims and eye-witnesses, white abolitionists as advocates for the slave, and the American reading public as a court of public opinion. Viewing each of these roles in light of changes in early American jurisprudence, as well as from the vantage point of specific legal crises over slavery, the article explores how figurative appropriations of legal rhetoric structured race relations in the print debate over slavery between 1830-1860.
    Forces of Consent Susan Schmeiser University of Connecticut - School of Law Abstract:
      This essay considers the Anglo-American legal treatment of sadomasochistic sexual practices, under which the consent of the masochist furnishes no defense to a charge of assault against the sadist. The law's unwillingness to recognize the masochist's consent in this context, I argue, suggests unease with the ways in which S/M reflects and exposes the operations of law. The essay begins with Robert Cover's work on law's potential to domesticate violence, locating an aporia around sadomasochistic sexuality and the putative irrationality it represents at the heart of Cover's account. It then discusses the legal regulation of homosexuality as a backdrop against which to situate the legal treatment of S/M within discussions of privacy and consent. Under Bowers v. Hardwick, sodomy as a "victimless crime" nevertheless wrought its injury on the polity; the majority in that case effected an erosion of the boundaries separating private and public, individual bodies and the social body. Lawrence v. Texas has reinscribed these boundaries in the name of choice and personal autonomy. Cases addressing sadomasochistic sexual practices, however, reason in the reverse direction: identifying a public injury in violence unchecked and then locating it on the body of the masochist, regardless of the nature of his participation. With his apparent passivity or even active receptivity in the face of violence, the masochist putatively lacks the kind of rationality that would render him capable and deserving of autonomy and respect. Theorists of consent, however, demonstrate that consent frequently mystifies the relationship between active and passive. The essay considers Elaine Scarry's work on consent before contemplating the doctrine that deems consent to sadomasochism legally unintelligible. Courts and commentators alike seem nonplussed by a practice that apparently merges sex and violence, pain and pleasure. Their anxiety about sadistic aggression unchecked inspires them largely to neglect the masochist's complex role. Moreover, while courts and others have denounced these practices - and implicitly the ways in which they play out fundamental legal and political narratives of consent and subjection - as outside the bounds of cognizable human behavior, many theorists of S/M have celebrated its reflective function, seeing it as an expose of power relations. Proponents and detractors alike of sadomasochism generally disregard the gender of the participants, although gender has clearly shaped the legal doctrine. The male masochists involved in the major cases have rendered recognition of consent in that context even more fraught. The essay notes certain ideals of masculinity at work in the construction of the ideal legal subject, ideals to which male masochism poses a radical challenge. Finally, the essay draws an analogy between the suspicion of sadomasochistic consent and that of consent to psychoanalytic treatment. In both of these contexts, what begins as a quintessentially volitional act, indeed one that often takes the form of a contract, appears to get subsumed immediately into compulsion. The essay concludes by suggesting that consent in these contexts highlights the extent to which categories of compulsion and volition, emphatically distinguished in our culture, come to haunt one another.
    State Aid Control: Substance and Procedure in the Europe Agreements and the Stabilisation and Association Agreements European Law Journal, Vol. 9, pp. 265-287, July 2003 Marise Cremona University of London - Centre for Commercial Law Studies Abstract:
      Community agreements with third countries frequently contain provisions on State aids. These provisions are designed to achieve a range of different objectives, related both to developing trade between the contracting parties and to economic and legal/regulatory development within the partner State. This paper takes a particular model of State aid clause - those found in the Europe Agreements (EAs) and the Stabilisation and Association Agreements (SAAs) - in order to explore the implications of a harmonisation obligation applied within the context of accession to the EU. In these agreements the State aid rules - and in particular those relating to the application of Community-based criteria - are intended to contribute to the pre-accession adoption of the acquis communautaire by the associate States (including those who are not yet candidates). These clauses are striking in their emphasis on the full adoption of Community-based standards for the approval of aids, including large quantities of 'soft law', while saying very little as to the appropriate procedures for enforcement. The experience of implementing these clauses illustrates the practical difficulties of applying Community norms and standards outside the procedural structures, integration mechanisms and single market objectives of actual EU membership. The associate States are required to demonstrate their capacity for applying and enforcing the Community-derived rules while balancing the needs of their own economic development against an undefined 'common interest'.
    Down That Wrong Road: Discretion in Decisions to Detain Asylum Seekers Arriving at UK Ports Howard Journal of Criminal Justice, Vol. 42, pp. 248-262, July 2003 Leanne Weber University of Western Sydney Abstract:
      The discretionary power to detain asylum seekers on arrival in the UK has been described by one human rights organisation as 'extraordinary and largely unrestrained' (Amnesty International 1996). Although decisions made by immigration officers can lead to long periods in prison or in prison-like conditions, these actions are considered to be administrative and are therefore not subject to the legal constraints that apply to criminal justice agencies. This article traces the many sources of discretion in the use of Immigration Act detention, using an analytical framework developed by Schneider (1992). Discretion is found to originate from the vague and permissive nature of detention guidelines (rule-failure discretion), the priority given to operational considerations at ports (rule-binding discretion) and the failure to resolve conflicts between policy objectives (rule-compromise discretion).
    Listening to Young Adult Offenders: Views on the Effect of a Police-Probation Initiative on Reducing Crime Howard Journal of Criminal Justice, Vol. 42, pp. 263-281, July 2003 Wing Chui, Bill Tupman and Colin Farlow City University of Hong Kong - School of Law , University of Exeter - School of Historical - Political and Socialogical Studies and University of Exeter - School of Historical - Political and Socialogical Studies Abstract:
      This article reports the subjective views of young adult offenders, regarding their experience of a police-probation initiative in the southwest region of England. Project ARC (Addressing Repeat Criminality) was a pilot scheme that targeted persistent offenders, mainly drug offenders, by offering them an intensive form of probation supervision. The procedure of allowing these offenders to speak and listening to their voices has been seen as an excellent and powerful method to depict vividly their perception of probation experience and views on the usefulness of the crime reduction project. Several central themes emerged from the in-depth interview data, regarding the success or otherwise of the initiative in addressing their criminal behaviour. These include offenders' attitudes to offending, self-explanations for their criminality, views of peer associations and the usefulness of the Project ARC intervention. Finally, the offenders' first hand accounts also offer invaluable insight to the police and probation services on how the project can and should be further improved in order to reform their offending behaviours.

Monday, September 29, 2003
Kontorovich on Liability Rules for Constitutional Rights at Chicago Eugene Kontorovich (George Mason) is workshopping Liability Rules for Constitutional Rights: The Case of Mass Detentions on at the University of Chicago today. It should be up on SSRN soon, but in the meantime, here is an abstract:
    Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive. This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, it shows that property rule protection of individual rights sometimes leads to perverse and inefficient results. While the government has repeatedly resorted to mass detentions in emergencies, the Court has never blocked such measures. This is a perverse result of constitutional law’s insistence on property rule protection even when transaction costs of transferring liberty rights become extraordinarily high. Holding that a policy violates rights would require, under a property rule, enjoining potentially vital security measures. The Court is unwilling to impose such costs on society. Thus it simply avoids finding that mass detentions violate rights. This creates large groups of uncompensated victims, who are often members of vulnerable ethnic minorities. It also stunts and distorts the development of constitutional law. Switching to liability rules in mass detention situations can, counterintuitively, result in greater redress for detainees, as well deterring detentions and preserving the integrity and predictability of substantive law. Furthermore, the transaction cost analysis developed in this Article has implications that extend beyond mass detentions to a variety of other constitutional contexts.

Moving Day & Interview with Hasen Crescat Sentential has a new URL: And in other sentential news, the crescat interview with election law superblogger Rick Hasen is now available at this link.

Belated Welcome to the Blogosphere . . . to IPKat (Jeremy Phillips and Ilanah Simon), a UK Intellectual Property blog. Check out the IPKant book of the Month.

Internet Governance: The IETF Michael Froomkin points to recent developments in Internet governance in this post on the Internet Engineering Task Force.

Weekend Wrap Up On Saturday, the Download of the Week was a new paper from Howard Gillman, and the Legal Theory Bookworm recommended a recent book by Farber and Sherry. On Sunday, the Legal Theory Lexicon's topic was Hypotheticals, and the Legal Theory Calendar previewed the talks, workshops, colloquia, and other events for the week.

Benhabib at Chicago At the University of Chicago Political Theory Workshop, Seyla Benhabib (Yale University) presents The Right to Have Rights, Discussant: Jacob Schiff. Here is a taste:
    Since Jeremy Bentham’s quip that belief in natural rights is “nonsense on stilts,” right claims have been mistaken to refer to certain moral properties or attributes of human beings. The language of “natural rights,” perpetrated the naturalistic fallacy in that it conflated a claim about moral grounds – the reasons why we ought to recognize each others’ claims to action or forbearance, resources or services of certain sorts- with a seeming description of the physical and psychological attributes of existing moral entities-that individuals could not but act in pursuit of self-preservation (Hobbes) or for the protection of their life, liberty and property (Locke). Natural rights talk, as found in the writings of Hobbes, Locke and Rousseau, vacillated between psychological truisms such as “each living being tends to its self-preservation” and moral injunctions of the kind -“Seek Peace and all the means thereunto.” (Hobbes [1651 ) Historically the wide-spread use of the terms ‘property,’ ‘propriety’ to designate rights claims in general, served to demarcate a sphere of individuals claims and entitlements and gave them an aspect of inviolability. (See Tuck 1979)
and a bit more:
    Being deeply shaped by an emergent capitalist commodity economy which was fast transforming all human goods and resources into saleable property, the political imaginary of natural rights theories readily conflated rights-talk with property-talk. Property rights themselves came to be viewed as paradigmatic, although, as G.W. F. Hegel noted sarcastically with respect to Locke and Hobbes, the irony in this conflation was that unlike property rights, the natural rights to life and liberty, were not alienable and ought not be commodified. (Hegel [1821]; Benhabib 1981 ) Far from being reducible to property rights, the individual could only be recognized as a rights-bearing person insofar as his rights to life and liberty were not saleable property.
Not my cup of tea, but Benhabib is one of the very best political theorists working in what might be called the "continental tradition." A paper from which I learned--recommended.

Schwarzschild on Direct Demoracy Maimon Schwarzschild (University of San Diego School of Law) has posted Voter Initiatives and American Federalism: Putting Direct Democracy in Its Place (forthcoming Journal of Contemporary Legal Issues) on SSRN. Don't miss this! Here is the abstract:
    The idea of direct democracy provokes sharply conflicting thoughts and feelings. There is the hopeful vision of direct democracy: free and equal citizens governing themselves, public decisions that are truly of, by, and for the people. But direct democracy, especially the voter initiative as practiced in California, conjures up negative, even lurid, images for many people - perhaps especially for academics. On the dystopian view, voter initiatives mean public decisions by vote of an often ill-informed public, polarized by "Yes-or-No" questions, manipulated by demagoguery and special interests; imperiling the rights and interests of minorities, and weakening representative and republican institutions. This article argues that federalism provides a proper – and properly tamed – place for direct democracy: that voter initiatives at the state but not the federal level are a good thing to have in the mix of American lawmaking. The argument is an application, in part, of the idea of value pluralism associated with the thought of Isaiah Berlin. Direct democracy is pluralist in at least three ways. (1) It is institutionally pluralist, an element of political life that does not exist at the federal level, or in many states. (2) It makes for pluralism of participants, opening a door to interests and groups outside the usual mainstream of representative politics. (3) It makes for pluralism of results, yielding political outcomes whose tendency differs, at least somewhat, from that of laws typically enacted by legislatures. The difference in tendency shouldn't be exaggerated, but voter initiatives on the whole do have a distinctive - and somewhat conservative and libertarian - tilt. Federalism minimizes some of the genuine drawbacks and dangers of direct democracy, which might otherwise do more to threaten pluralism than to advance it. There is no direct democracy at the federal level. There are no voter initiatives in more than half the states. Where there are initiatives, most of a state's laws continue to be made by the legislature. And initiatives are subject to judicial review and can be struck down for violating federal laws or the US Constitution. Federalism means that direct democracy can function as a political counterweight, but that representative democracy will not be overwhelmed by peasants with pitchforks.

New from Alexander in ConComm Lawrence Alexander (University of San Diego School of Law) has psoted Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy (forthcoming in Constitutional Commentary). Here is the abstract:
    Even after 200 years, Marbury v. Madison continues to generate scholarly attention. There is a huge and rich literature on the merits and implications of the Marshall opinion apart from its assertion of judicial review. Nevertheless, the main body of the vast Marbury oeuvre is devoted to judicial review. Is judicial review provided for in the Constitution? If not, has its legitimacy been established other than by constitutional provenance. What is the scope of judicial review? In other words, to what governmental acts is it applicable? Finally, what is the force of judicial review? Does it have stare decisis effect as well as res judicata effect? And if it has stare decisis effect, is that effect as strong or stronger as the Supreme Court's gloss on Marbury in Cooper v. Aaron implies? In this paper I focus on the force question, its relation to the so-called countermajoritarian difficulty," and to what extent attacks on Cooper v. Aaron are meritorious.
My colleague, Larry Alexander, is simply one of the very best. Highly recommended.

Four from Zacharias Fred Zacharias (University of San Diego) has posted four new papers on SSRN:
    Understanding recent Trends in Federal Regulation of Lawyers
      This essay was written in connection with a panel discussion entitled "The Layering of Ethics Rules: The Federal Government's Increasing Regulation of a Lawyer's Activities." The premise of the panel was that federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. This essay takes a more global look at the phenomenon of increasing federal regulation and asks whether it is symptomatic of changing views of appropriate professional regulation. It considers how the new trend relates to general themes in professional regulation as a whole. Part I reviews past, present, and proposed federal regulation of lawyers. It concludes that recent federal regulations reflect a growing willingness on the part of federal actors to invade what previously was viewed as a state regulatory prerogative. Part I also suggests, however, that none of the federal initiatives reflects a broad attempt to supplant state regulation across the board. The remainder of the essay considers how these developments interact with, and what they signify for, broad themes in lawyer regulation, including (1) federalism, (2) federalization of professional regulation, (3) distinctions in lawyering in the civil and criminal contexts or within specialized areas of practice, and (4) the failures of state regulation of lawyers. The essay considers whether and how the increase in federal regulation as a whole might be explained in light of traditional ways of looking at professional regulation.
    Reform or Professional Responsibility as Usual: Whither the Institutions of Regulation and Discipline?
      This article predicts five institutional changes that are likely to occur in the professional responsibility area in the twenty-first century. First, the enforcement of professional ethics will likely become more nationalized. Lawyers should expect a more uniform system of professional regulation and a greater degree of negotiation among the states and federal government concerning the types of regulation that are appropriate. Second, the article suggests that disciplinary systems will become more transparent, particularly with respect to policy-making in the disciplinary process and enforcement. Opening the process will enhance respect for the rules and improve enforcement techniques. Third, local bar associations will reevaluate the functions they perform and acknowledge the multiplicity, and occasional inconsistency, of the goals they seek to achieve. As a result, local bars will rely more on other regulators to restrain lawyer misconduct. They will shift their priorities towards functions, including lawyer assistance, that bar associations are uniquely suited to fulfilling. Fourth, the article predicts changes in the licensing and admission of lawyers. A system of specialty examination and licensing will provide official methods of differentiating among lawyers. At the same time, redefinition of the practice of law will result in a decrease in some forms of licensing. Greater recognition of the interrelationship between legal and nonlegal work will open the door to negotiation among the professions regarding who may provide services tangential to law. Sanctioning lay-providers may also be a necessary reaction to the growing, unsatisfied need of the poor and middle classes for law-related services.
    The Humanization of Lawyers
      The martyrdom of Thomas More for refusing to take an oath affirming Henry VIII's marriage to Anne Boleyn and his supremacy over the church has fascinated historians, playwrights, and their readers. Why did More refuse, at such sacrifice to take an oath that nearly everyone in the realm (including More's family and friends) had taken - and that they regarded him as obstinate and absurd for not taking? Why did More refuse to explain the reasons for his refusal, even to close family and friends, beyond saying that they were reasons of "conscience"? And how can More's eloquent affirmation that he would "leave every man to own conscience" and that "every man should leave me to mine" be reconciled with his active persecution and execution of Protestants whose consciences impelled them to embrace what More regarded as heresy? This essay investigates these questions and reflects on their significance for modern commitments to (and difficulties with) the idea of "freedom of conscience."
    The Purposes of Discipline
      Courts typically have characterized the purpose of professional discipline as "protecting the public." This Article will make two simple points. First, the characterization is simplistic and, as a result, masks a variety of functions that discipline might actually serve. Second, identifying the purpose of discipline more precisely would help rulemakers and disciplinary agencies achieve more consistent, and better, results. Disciplinary agencies might adopt four possible orientations in imposing sanctions: they might focus on (1) clients and sanctions that serve client interests; (2) offending lawyers, in order to determine their qualifications to continue practicing; (3) the profession as a whole, to decide which sanctions will best encourage competence and ethical behavior throughout the bar; or (4) the disciplinary process, in an effort to shore up the impact of professional standards in guiding lawyer behavior. Results will vary depending on the orientation that professional regulators emphasize. It is therefore important for the regulators to clarify their overall perspective. Differences in approach affect both consistency and the practical impact of discipline. Rulemakers, disciplinary prosecutors, and reviewing courts all need to be able to consult principles of discipline in order to effectively carry out their functions. Part I of this Article distinguishes the theory of professional discipline of lawyers from the theories underlying criminal prosecutions. Part II identifies the various possible stratagems for approaching discipline. Part III analyzes their potential impact by discussing their application to generic types of misconduct. Part IV discusses the ramifications of this analysis for rulemakers and other regulators.

Ramsey on the Executive War Power Michael Ramsey (University of San Diego School of Law) has posted Presidential Declarations of War (forthcoming UC Davis Law Review) on SSRN. Here is the abstract:
    Most discussions of modern war powers under the U.S. Constitution assume that wars are no longer formally "declared." The United States, it is agreed, has declared war only five times in its history, the last being in World War II. But the commentary is deeply divided over how this observation affects the President's power to initiate the use of armed force and the President's powers during wartime. This article argues that these debates are fundamentally misconceived. Far from being a historical anachronism, declarations of war, in the constitutional sense, are commonplace in modern practice. The U.S. has made such a declaration in essentially all of its major modern conflicts. They have been made, however, not by the Congress, but by the President. Perhaps out of a sense of constitutional unease, we avoid actually calling them "declarations of war." But, as the article shows, the essence of a formal declaration of war has long been simply the public announcement of sustained military hostilities and a statement of the conflict's goals and reasons. This conclusion simplifies the modern debate over war power in three ways. First, the central question is whether the President can declare war (not whether the President can fight an "undeclared" war). Second, when Congress authorizes the President to use force, that can be understood constitutionally as delegating Congress' power to declare war to the President. Finally, debate over the President's wartime powers need not be further complicated by the objection that a "war" has not been "declared."

Fodor at Berkeley At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.

New Papers on the Net Here is today's roundup:
    American Corporate Reform Abroad: Sarbanes-Oxley and the Foreign Private Issuer Michael Perino St. John's University - School of Law Abstract:
      This article addresses the potential impact of the Sarbanes-Oxley Act on the willingness of foreign private issuers to cross-list in the U.S. The article suggests that although the Act appears to increase somewhat the costs of entering the U.S. markets, it may have very little impact on cross listing. In part, this is because cross-listing issuers are quite large and are thus better able to bear the costs that the Act imposes. At the same time, other costs of the Act (such as increased liability risk) may be overstated. Foreign issuers may be willing to bear any increased cost because of the substantial benefits they appear to obtain from cross listing. By cross listing, foreign issuers gain visibility, prestige, and are able to access more readily U.S. capital markets. By voluntarily submitting to U.S. disclosure requirements and the threat of SEC enforcement and private litigation, firms appear to send credible signals that they will protect minority shareholder interests and will not extract private benefits of control. Recent empirical studies suggest that this signal is most valuable for high growth companies with large controlling shareholders that seek to expand by raising equity capital or through acquisitions. Such firms appear to significantly lower their cost of capital by cross listing. Indeed, it is possible that certain provisions of Sarbanes-Oxley (such as executive certification) could even increase the benefits of a U.S. listing by strengthens the bond or signal that comes with cross listing. Even without such an increase, however, there are currently no close substitutes for obtaining these benefits, which means that the demand for a U.S. listing may be relatively inelastic and we may observe little impact on U.S. listings. A substantial decline among issuers that currently cross list is similarly unlikely. While a foreign private issuer may easily choose to enter the U.S. regulatory system, it is quite time-consuming and expensive for that same issuer to exit the system. Because the costs of opting out of the U.S. markets are likely much higher than the costs of complying with the Act, it seems unlikely that many firms will choose to exit from the U.S. markets.
    Unjust Order: Malaysia's Internal Security Act Nicole Fritz and Martin Flaherty, UNJUST ORDER: MALAYSIA'S INTERNAL SECURITY ACT, The Joseph R. Crowley Program in International Human Rights, 2003 Nicole Fritz and Martin Flaherty University of Witwatersrand - School of Law and Princeton University - Program in Law & Public Affairs Abstract:
      This Report represents the culmination of a year-long project undertaken by the Joseph R. Crowley Program in International Human Rights to examine the use and impact of the Malaysian Internal Security Act (ISA) in light of international law obligations. The ISA permits indefinite detention without trial: the first sixty days of this detention are typically at the initiation of police authorities (under Section 73), and subsequent two-year periods occur at the authorization and renewal of the Minister of Home Affairs (under Section 8). The law has existed almost as long as Malaysian independence and has been used to delegitimize generations of political opposition and silence those considered "deviant" or "subversive" by the government. The arrests and detentions of ten individuals all prominently associated with the political party, KeADILan, constitute particularly egregious misuse of the ISA. More recently, the government has used fears of terrorism as an added justification for the ISA, prompting suspicions that the arrests of large numbers of alleged Islamic militants are also spuriously motivated. The Report documents the substantial and pervasive State-driven or sponsored violations of the rights of ISA detainees, including: the arbitrary arrest and detention of suspects; the alleged failure to provide adequate access to legal counsel; the absence of any effective forms of review of arrest and detention, or of the conditions in which detainees are kept; and the infliction of intolerable conditions of detention and treatment, that if not torture (and sometimes it is), nonetheless systematically exceeds the point at which treatment becomes cruel, inhuman and degrading. As this Report documents, ISA related violations are not limited to detainees: their families suffer harassment, as do lawyers and any other organizations (such as NGOs) willing to act on their behalf; and the rare judge who upholds the habeas corpus application of an ISA detainee is likely to suffer punitive and retaliatory measures by the government. In the result, an unduly deferential and compliant judiciary has emerged; space in which civil society operates is severely narrowed; and individuals wanting to express opposition to the government do so at considerable personal risk.
    International Differences in Cost of Capital: Do Legal Institutions and Securities Regulation Matter? Luzi Hail and Christian Leuz University of Zurich - Institute for Accounting and Control and University of Pennsylvania - The Wharton School Abstract:
      This paper examines international differences in firms' cost of capital across 40 countries. We analyze whether the effectiveness of a country's legal institutions and securities regulation is systematically related to cross-country differences in the cost of capital, over and above traditional risk factors. We employ four different models using analyst forecasts to estimate firms' implied cost of capital. We find that countries with extensive securities and disclosure regulation and strong enforcement mechanisms exhibit lower levels of cost of capital than countries with weak legal institutions, even after controlling for various risk and country factors. The effects are strongest for institutions that enable investors to privately enforce their contracts, i.e., legal institutions that provide information and facilitate private litigation. We also show that, consistent with theory, these effects become substantially smaller or insignificant as markets become more integrated.
    When Time Isn't Money: Foundation Payouts and the Time Value of Money As published in Stanford Social Innovation Review, Vol. 1, Iss. 1, pp. 51-59, Spring 2003; and Exempt Organization Tax Review, Vol. 41, Iss. 3, pp. 421-428, September 2003 Michael Klausner Stanford Law School Abstract:
      Bill Gates has said that when an aids vaccine is produced, the Bill and Melinda Gates Foundation will fund the vaccine's distribution around the world even if the foundation has to spend down its $24 billion endowment. For now, and until the vaccine is found, however, the foundation is distributing funds at about the legally required rate of 5 percent per year. In recent years, strong arguments have been made to foundation managers and the U.S. Congress that foundations should distribute their assets at a faster rate, beginning now. McKinsey & Company consultants Paul J. Jansen and David M. Katz, writing in "For Nonprofits, Time is Money," have argued that we should view foundation grants as an investor would view an investment. Former New Jersey Senator Bill Bradley, now a consultant to McKinsey, joined Jansen in making the same argument in a New York Times op-ed entitled "Faster Charity." They argue that, just as investors would choose to receive a dollar today rather than a dollar a year from now, so too is a dollar of charity given today worth more to society than a dollar of charity given in the future. If the McKinsey authors are right, then the Gates Foundation may need to reassess its strategy. Under their approach, the Foundation should discount the social benefit of a future AIDS vaccine to a "present value," just as an investor would discount future investment returns to present value. This discounting exercise would reduce the vaccine's value to a fraction - very likely a small fraction - of the benefit that the vaccine will produce when it is actually distributed. Thus, more immediate grants to charity would appear more socially valuable in comparison, and to that extent, the McKinsey authors argue that foundations should accelerate their payout rates. But the McKinsey authors are wrong. The discounted cash flow approach they use is inapplicable to the foundation payout issue. There are good reasons for foundations to favor high payout rates under certain circumstances, and there may be reasons for the law to mandate minimum payout rates, but the time value of money is not one of them.
And here are some additional papers of interest:

Welcome to the Blogosphere . . . to Civil Procedure. My favorite course!

Sunday, September 28, 2003
Bainbridge on Conservatives in Academia Stephen Bainbridge (UCLA) has a very nice post entitled Conservatives in academia on his excellent blog And check out this by Tom Smith and this by Michael Rappaport on The Right Coast.

Legal Theory Lexicon: Hypotheticals
    Introduction The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are." The purpose of this post is to reflect on the "hypothetical," with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorously and analytically about hypotheticals, what they are, what they can and can't accomplish, how to construct them, and how to maneuver around them.
    What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."
    In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.
    Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Alice agreed to pay Ben $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:
    • What if the agreement had been oral instead of in writing?
    • What if the contract price had been $300?
    • What if Alice had been a minor?
    • What if the contract had not specified a price?
    • What if Alice did the job, but the roof still leaked?
    And so on.
    The Purposes of Hypotheticals Why do law professors use hypotheticals?
    • As a tool for the explication of legal doctrine.
    • As a tool for exploring the moral underpinnings of legal rules.
    • As a tool for exploring the consequences of legal rules.
    Law students quickly become familiar with the first of the three kinds of hypotheticals. They read a case and learn a rule. The professor then poses hypothetical variations on the case to test the student's knowledge of the rule. Typically, the hypo is followed with a question like, "What result?" But legal education is also about the normative analysis of legal doctrine, and hypotheticals can also be used to explore our intuitions about the morality of the law. Such hypos are frequently end with, "What should the result be?" And the follow-up question, "That's the rule, but do you think that is the right result?" Finally, contemporary legal education incorporates a healthy dose of economic analysis. So, we can add information about prices to hypos and then ask what consequences a rule will produce if the various actors are "rational" in the economic sense.
    "Beware the hypothetical, my son. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.
    Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.
    Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.
    Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."
    Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
      Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.
      Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
        (1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).
        (2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
        (3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
      Hard cases are the meat and potatoes of law school.
      Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fare to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the dessert of law school.
    There is a lot more to learn about hypotheticals (perhaps in a second installment in the Legal Theory Lexicon, but these four lessons should get you started. Take your vorpal sword in hand!
For past and future installments in the Legal Theory Lexicon, surf here.

Legal Theory Calendar
    Monday, September 29
      At the University of Chicago Political Theory Workshop, Seyla Benhabib (Yale University) presents The Right to Have Rights, Discussant: Jacob Schiff.
      At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.
    Thursday, October 2 Friday, October 3
      At SUNY Buffalo, Lauren Edelman (U.C. Berkeley) presents Law at Work: An Institutional Approach to Civil Rights, with comments by Lucinda Finley (Buffalo) and James Johnson (Rochester).
      At the Society for Applied Philosophy in London, Jonathan Ree & Andrew Edgar (University of Wales, Cardiff) present Paths to Utopia: Philosophical Republics in the 21st Society, Chair: Richard Ashcroft (Imperial College, London). (From the London Fixtures List)
      At the University of Texas Faculty Colloquium, Fionnuala Ni Aolain (University of Ulster) presents The Paradox of Transition in Conflicted Democracies.
      Jennifer Mnookin is presenting at UCLA, but I don't have a title.

Saturday, September 27, 2003
Legal Theory Bookworm This week the legal theory bookworm recommends Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations by Daniel Farber (Minnesota and U.C. Berkeley) and Suzanna Sherry (Vanderbilt). (Another link here.) Farber and Sherry's book provides a wonderfully compact and elegant statement of the case for a pragmatic approach to constitutional interpretation. They begin with a list of eight propositions, which we could summarize as follows:
    1. The constitution is a written document. 2. The Supreme Court should follow the constitutional text and its original meaning. 3. The Constitution can only be changed by amendment. 4. The Supreme Court's rulings are law, binding on officials and citizens. 5. The federal government has broad (if not plenary) legislative power. 6. It is unconstitutional for either the federal or state governments to discriminate on the basis of race. 7. The Constitutions envisions states as sovereigns. 8. It would be unconstitutional for government to assign spouses or dictate family size.
Farber and Sherry then write:
    These eight propositions are, we think, little more than common sense, and most people would find no hesitation in affirming all of them. The problem, as legal sophisticates have long realized, is they they are in tension with one another. That is, if given their full scope they would contract each other. For instance, adherence to original intent is hard to square with rejection of racial segregation, since the same Congress that proposed the Fourteenth Amendment (barring discrimination) also maintained segregated schools in the District of Columbia.
Farber and Sherry make thier case against what they call foundationalist constitutonal theories by examining six writers: Robert Bork, Antonin Scalia, Richard Epstein, Akhil Amar, Bruce Ackerman, and Ronald Dworkin.
Desperately Seeking Certainty provides a wonderful tour of contemporary constitutional theory. Highly recommended!

Download of the Week The Download of the Week is Howard Gillman's Constitutional Law As Partisan Entrenchment. Gillman describes the aim of his paper as follows:
    I want to explore whether the concept of political entrenchment provides a useful perspective for understanding the political origins of liberalism in the Warren- and post-Warren-era federal judiciary. Rather than view these developments as a byproduc of unrestrained judicial activists intent of following personal political agendas, or even as a reflection of judges who act as if they are political blank-slates and simply adapt to changing political circumstances, I want to see whether modern judicial liberalism can be traced to the self-conscious efforts of Democratic Party office-holders in the 1960s. I hope to show that there are important similarities between the actions of Democrats in the 1960s and Republicans in the latter part of the nineteenth century,especially the use of legislation to reorganize and reconfigure access to federal courts, and the use of the appointment power to fundamentally alter the decision- making bias of the federal judiciary. After reviewing this record I will end by suggesting how this story might shed light on the extra-judicial origins of constitutional change within the courts, as well as change our understanding of concepts such as judicial activism.
If I may, let me share another nugget or two from this really fascinating and wonderful paper:
    One thing that prevents judges from being viewed as entrenched partisans is that they tend to represent the political agenda that was most salient at the time of their appointment. Unlike other elected partisans, they are under no pressure (as a condition of holding onto power) to update their views based on new contexts, changing coalitions, and evolving electoral strategies. New Deal justices did their work by upholding the New Deal, and if later they diverged on issues relating to civil rights and liberties that merely demonstrates that consensus on these issues was not a salient consideration for Roosevelt when he made his appointments. The fact that John Paul Stevens is now viewed as the Court’s leading liberal is not inconsistent with the view that he was properly viewed as a life-long moderate Republican at the time of his appointment.
And form the conclusion:
    Democrats in Congress did not support every initiative of the Warren Court. After the reapportionment decisions the House (over the objections of the chairman of the Judiciary Committee) passed a jurisdiction-stripping bill, but liberal senators successfully filibustered similar efforts.85 The Court’s criminal procedure decisions, which were anticipated by Johnson when making the Marshall appointment, were also unpopular, especially in the wake of urban rioting, which helped undermine whatever sympathies for minority criminal defendants (and whatever support for careful criminal justice) that might have been promoted by movies such as 12 Angry Men (1957) and To Kill a Mockingbird (1962). These decisions not only triggered a Congressional reaction but also a “law-and-order” presidential bid that helped Richard Nixon retake the White House for Republicans in 1968. Still, as a general rule, during this period the Court was, by design, “a functioning part of the Kennedy-Johnson liberalism of the mid and late 1960s.” Kennedy actively supported the Court’s controversial school prayer decisions; the justices declared the poll tax unconstitutional only after Congress encouraged the Justice Department to challenge those laws in federal court.87 Most of the targets of the Court’s judicial review were state laws that seemed inconsistent with the national consensus that gave Democrats control of the federal government throughout most of the 1960s. The fact that some of the Court’s decision-making might have been inconsistent with the median position of the 1960s Democratic Party demonstrates that judicial entrenchment typically empowers the ideological wings of the parties at the expense of party moderates and pragmatists.
Download it while its hot!

Lists Department Courtesy of the Leiter Reports, The Philosopher’s Annual has announced its list of the top ten philosophy articles of 2002. Here are three that are likely to be of some interest to legal theorists:
    Nomy Arpaly, “Moral Worth,” from the Journal of Philosophy, 99, May 2002, 223-245. Karen Jones, “The Politics of Credibility,” from Louise M. Antony and Charlotte E. Witt, A Mind of One’s Own: Feminist Essays on Reason and Objectivity, Westview Press. Christopher F. Zurn, “Deliberative Democracy and Constitutional Review,” from Law and Philosophy, Vol. 21 (2002): 467-542.

Friday, September 26, 2003
Preview of Coming Attractions Tomorrow, the Legal Theory Bookworm recommends a contemporary book of interest to legal theorists, and, as usual, the Download of the Week is unveiled. On Sunday, the Legal Theory Calendar previews colloquia, workshops, and conferences for next week, and the Legal Theory Lexicon does the unthinkable and provides a guide for law students on hypotheticals (everything you always wanted to know, but your professors were afraid to tell you).

Screpanti on Choice, Freedom, and Redistribution Ernesto Screpanti (Università degli Studi di Siena - Dipartimento di Economia Politica) has posted Choice Freedom and Redistribution Policies on SSRN. Here is the abstract:
    Opportunity sets are defined by taking account of budgetary, institutional and legal constraints. Then a cardinal measure of freedom is proposed which is apt to interpersonal comparisons of opportunity sets. Individual choice freedom may expand when a new good is publicly provided free or at a low price. On the other hand it is decreased by taxes. It is argued that progressive taxation redistributes freedom in favour of the poor, all the more so when public revenues are used to finance the public provision of goods, in which case overall freedom may result enlarged.

Murphy at Texas Today at Brian Leiter's Law and Philosophy Program at the University of Texas, Mark Murphy (Philosophy, Georgetown University) participates in a 3-hour lunchtime workshop with LPP faculty and students on chapters of his book manuscript on Natural Law in Jurisprudence and Politics. He will also give a paper in the Philosophy Department in the afternoon on "Intention, Foresight, and Success."

Spaulding at the University of San Diego Norman Spaulding (U.C. Berkeley) presents Constitution as Counter-Monument: Federalism, Reconstruction and the Problem of Collective Memory.

Froomkin and Bradley on Virtual Worlds Michael Froomkin and Caroline Bradley have a paper entitled Virtual Worlds, Real Rules. Here a taste:
    In Virtual Worlds such as Ultima Online and Everquest, the Internet may accidentally provide an environment that lends itself well to the testing of legal rules. A growing literature suggests that there is a relationship between certain legal rules and economic well-being. Data about the economic consequences of rules would enormously enrich debates over economic regulation. Unfortunately, in the real world experimenting with legal rules can be costly and risky. Some scholars of comparative law attempt to draw lessons by comparing the diverse experiences of different countries, but these efforts too often fall prey to errors of cultural, not to mention legal, translation. Virtual worlds could permit experiments without the real-world costs of bad rules or regulatory competition. Existing role playing games tend to include internal market regulations that resemble those seen in Western capitalist economies. These rules could be changed, or different versions of the game might use different variants. Online role playing games would provide better data than economic models because it should be possible to design the games to reduce the number of assumptions involved. Moreover, game participants are likely to care about outcomes more than participants in laboratory-based experiments, if only because resource constraints force these to be conducted for low stakes.
Also check this post on

Miles on Threats to Law Library Autonomy At the SUNY Buffalo, Jim Milles presents Leaky Boundaries and the Decline of the Autonomous Law School Library. Horrors!

Foucault and the Gypsies Dave Cowan and Delia Lomax (University of Bristol - Department of Law and Heriot-Watt University - School of the Built Environment) have posted Policing Unauthorized Camping (forthcoming Journal of Law and Society on SSRN. Here is the abstract:
    We argue that the links between welfare, policing, and exclusion, though rarely made explicit, nevertheless form the undercurrent of the modern neo-liberal state. In making this argument, we draw particularly upon the voluminous literature which amplifies the seminal work of Foucault, especially as it relates to government. Thereafter, we apply this set of understandings to the way in which the unauthorized encampments of Gypsies and Travellers are policed. We concentrate first on the construction of legislation and its legal aftermath. Subsequently, we draw upon case study evidence to illustrate our thesis, particularly focusing on the sorting processes of decision-makers.

Hoffman and Wenger on Nullificatory Juries David Hoffman and Kaimipono Wenger (Cravath, Swaine & Moore LLP and Cravath, Swaine & Moore LLP) have posted Nullificatory Juries on SSRN. Here is the abstract:
    In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call “nullificatory juries.” We discuss the features of such juries, and consider recent behavioral data relating to the common sense moral intuitions that appear to motivate nullificatory juries to reject utilitarianism. After considering these root causes, we provide a theoretical framework for analyzing the benefits these juries provide to society. We conclude with some modest suggestions for future avenues of research.

New Papers on the Net Here is today's roundup:
    Civil Litigation with Mandatory Discovery and Voluntary Transmission of Private Information Amy Farmer and Paul Pecorino University of Arkansas - Department of Economics and University of Alabama - Department of Economics, Finance and Legal Studies Abstract:
      We consider models of pretrial negotiations where both costly voluntary disclosure and costly mandatory discovery are possible. When the uninformed party makes the final offer (the screening game), mandatory discovery will be utilized, if it is not very costly, but voluntary disclosure will not occur in the absence of a discovery procedure. When the informed party makes the final offer (the signaling game), mandatory discovery is never utilized, but voluntary disclosure will be utilized if it is not too costly to do so. Thus, mandatory discovery is effective in the information structure under which voluntary disclosure is not and vice versa. The results suggest that, taken together, the two institutions will lead to a great deal of information revelation and will significantly increase the probability of settlement.
    The Appeal and Limits of Internal Controls to Fight Fraud, Terrorism, Other Ills Journal of Corporation Law, Vol. 29, 2004 Lawrence Cunningham Boston College - Law School Abstract:
      Congress responded in similar ways to 2001's major national crises: bolstering internal controls in corporate America under the Sarbanes-Oxley Act in response to Enron's debacle and imposing internal controls on its financial services industry under the USA PATRIOT Act in response to 9/11's terrorism. These reflexive legislative responses to national crisis fit a pattern of proliferating controls as a first-order policy option dating to the mid-1970s. Documenting this proliferation and untangling the definition of internal controls, this Article attributes the appeal of internal controls as a policy option to systemic forces including the movements for deregulation and cooperative compliance, resistance to overt federal preemption of state corporate law, the monitoring model of the board of directors in corporate governance and audit committee ascendance, the social responsibility movement and the diversification of auditing services. Manifest appeals include the limited substantive content control directives carry and the increasing harmonization of control types around audit committees, compliance officers, employee training manuals and external audits of controls fitting neatly into the team production theory of corporate practice and law and making even mandatory controls appealing to corporations being implicitly regulated. Illuminating the limits of this policy option is an examination of comparative attitudes towards control risk shown by the auditing and legal professions. Audit approaches control risk with a formal context, definition and measurement apparatus consciously aware of risk's inevitability and that controls may increase or decrease risk. Yet auditors advertise their product as capable of doing more. Legal culture takes the advertisements seriously. The resulting expectations gap can be reinforced when audit's emphasis on systems and controls creates false impressions that these reflect likely achievement of underlying objectives. Proliferation of internal controls in the face of crisis shows social anxieties. Assuaging social anxieties with these tools can create illusions of control and denial of risk. Legal culture is telling managers to take steps to buy absolute control; audit culture is happy to sell it; the truth is, there is no absolute control. No system provides absolute assurance. The gap is significant between (1) what systems can deliver versus (2) what legal culture expects and what auditors advertise they can deliver. When internal controls fail, the policy response is to require audits of controls. This is the story of Sarbanes-Oxley. In the 1970s, the SEC persuaded Congress in response to crisis to pass the Foreign Corrupt Practices Act requiring companies to have internal financial controls. In the early 2000s, in response to crisis perceived to originate in internal control failure, the SEC persuaded Congress to pass Sarbanes-Oxley requiring auditors to audit those internal controls. In this cycle of control mandates followed by audit mandates, pressure builds on audit to create controls that can be audited. But since controls do not automatically reduce audit risk and may increase it, audits of them cannot speak to the effectiveness of underlying substance over which controls offer no reliable assurance. Legislative enthusiasm for controls as crisis-response mechanisms pretends controls can do more than they can and when controls consequently proliferate they can do even less—it becomes hard to assess which controls are effective. Control proliferation and generality complicate foreseeability analysis in tort. If controls applied only in particular settings with defined functions, they could indicate that related risk realization was foreseeable. They might be useful in assessing difficult pragmatic questions of causation when losses arise after controls fail. But when every aspect of corporate affairs is layered with elaborate controls there is no credible basis for drawing such inferences. Control signifies nothing special, so offers no insight concerning foreseeability or causation. This has not, however, prevented using control failures in exactly this mistaken way. When controls fail, the existence of control norms, directives, or practices are relevant to evaluating the standard of care exercised and matters of causation and foreseeability with little or no regard to the particular control at issue or its underlying substantive purpose. But Sarbanes-Oxley and PATRIOT show two polar extremes of control types: internal controls over financial reporting and controls dedicated to fighting terrorism. Two competing models of regulatory theory map onto this range. The deterrence model hypothesizes that target decision-making is conducted by comparing the cost of compliance with the product of enforcement threats and penalty levels. The cooperation model enlarges the framework by recognizing norms of compliance that may be skewed by the simple adjustment of threat and penalty levels. For internal controls the relative purchase of these models varies with the tenor of the control: financial controls link to the deterrence model where penalties for failure should be high and liability likely; externally-oriented controls are congruent with the cooperation model: penalties and liability risk should be zero. This theoretical account of the distinction between control types is consistent with the longer history of corporate law but the current legal environment's ambitions for internal controls threatens to upset this traditional stance. This appears most acute in the case of terrorism and provides an internal-controls-based defense of general compensation schemes such as the 9/11 Victims' Compensation Fund.
    Asian Discourses of Rule of Law Randall Peerenboom, ASIAN DISCOURSES OF RULE OF LAW, RoutledgeCurzon, January 2004 Randall Peerenboom University of California, Los Angeles - School of Law Abstract:
      This preface to Asian Discourses of Rule of Law provides an overview of the larger project of which this volume is the first installment. The overall project consists of nine conference volumes that seek to advance our theoretical understanding of law and legal systems by examining legal system development and rule of law in Asia, using the U.S. and France or Germany as comparison points. Given the great diversity among legal systems, the purpose is to understand how rule of law is theorized and implemented, and the role of law and the legal system with respect to economic growth, political reform and democratization, the protection of human rights and geopolitical stability. More specifically, this project will (i) explore the extent to which Asian conceptions of rule of law differ from conceptions of rule of law in the U.S. and France; (ii) provide a much needed empirical foundation to what has hitherto been an excessively abstract and overly politicized debate about "Asian values;" (iii) revolutionize comparative law by bringing Asian legal systems into the mainstream of comparative legal studies; (iv) shed light on the development of legal systems and the factors that account for success or failure in the transplant of law from one legal system to another; (v) test the relationship between law and economic development; (vi) examine the relationship between legal system reforms and political reforms, especially the relationship between rule of law, democracy and human rights; and (vii) enhance our understanding of theories and implementation of international law in Asia, and the role the legal systems play in geopolitical stability and the engagement of Asian countries with other countries in the international arena. The first conference volume set the stage for subsequent conferences/volumes by providing a general overview of the dominant conceptions of law, organized around the theme of rule of law, and by providing a brief description of the constitutional structure and institutional framework. Subsequent conferences examine specific areas of law or topics in law to determine: (i) whether there are differences/similarities between the countries with respect to the rules (the black letter law), (ii) differences or similarities with respect to the outcomes in particular cases (or the way events are handled if they are not subject to formal legal resolution) and (iii) the justifications/explanations for such outcomes (legal reasons, cultural/philosophical explanations, or economic, political or institutional explanations).
    Varieties of Rule of Law: An Introduction and Provisional Conclusion Randall Peerenboom, ASIAN DISCOURSES OF RULE OF LAW, RoutledgeCurzon, January 2004 Randall Peerenboom University of California, Los Angeles - School of Law Abstract:
      Rule of law is one of the pillars of modernity, and widely considered necessary for sustained economic development, the implementation of democracy and the protection of human rights. Spurred on by the World Bank and the IMF, Asian countries have begun to focus on rule of law and good governance and the institutional reforms required to bring them about. At the same time, critics in Asia and the West note that rule of law is closely associated with Western liberal democracy and wonder whether rule of law will take root given the different cultural, economic and political context. China and Vietnam reject democracy, while Singapore and Malaysia arguably remain soft authoritarian states despite democratic trappings. South Korea, Taiwan, the Philippines, Thailand and Indonesia have become democratic or are in the process of democratizing, but democracy remains weak and has yet to be consolidated in several of them. Despite widespread support for aspects of the Washington consensus that economic development requires the legal foundations of capitalism and a regulatory framework sufficient to attract FDI, some critics argue some Asian countries have been able to obtain sustain economic growth without rule of law. Other commentators portray the attempts of Western governments and international organizations to promote rule of law in Asian countries as a form of cultural, political, economic and legal hegemony. Some claim that liberal democratic rule of law is excessively individualist in its orientation and privileges individual autonomy and rights over duties and obligations to others, the interests of society, and social solidarity and harmony. This line of criticism taps into recent, often heavily politicized, debates about "Asian values," and whether democratic or authoritarian regimes are more likely to ensure social stability and economic growth. It also taps into post-colonial discourses and conflicts between developed and developing states, and within developing states between the haves and have-nots over issues of distributive justice. In several Asian countries, arguably in all countries, it has resulted in an attempt to inject local values into a legal system established by foreign powers during colonial occupation or largely based on foreign transplants. In striking contrast to the many volumes on rule of law in the Western literature, relatively little work has been done on clarifying alternative conceptions of rule of law in other parts of the world, including Asia. This chapter is the introduction to Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. (RoutledgeCurzon, 2003). What emerges is a rich portrait of diverse conceptions of rule of law both across the Asian region and within individual countries, from liberal views to authoritarian views, from top-down statist views to the bottom-up perspectives of oppressed individuals seeking to harness the power of rule of law to redress individual instances of injustice and the broad-ranging systemic problems that empower a few at the expense of the many. The chapter explores how rule of law has been constructed, deconstructed and reconstructed in twelve Asian countries, the U.S. and France. It also takes up the relationship between rule of law and democracy, and what the experiences of these Asian countries tell us about the factors that facilitate or hinder the establishment and implementation of rule of law.
    Taking Politics Seriously: A Theory of California's Separation of Powers Jonathan Zasloff University of California, Los Angeles - School of Law Abstract:
      The California Court of Appeal recently held that the structure of the California Coastal Commission - arguably the most powerful land use authority in the nation - violated the state Constitution's Separation of Powers Clause, casting doubt on the Commission's viability. Constitutional cases beg for judicial overwriting, but the court resisted the temptation: no references to Montesquieu, no overwrought warnings about the "perils to liberty," no attempts at Holmesian rhetoric. The Court's opinion was sober and workmanlike - judges carefully attempting to sort through doctrine and come to a reasoned result. But if the court thought that it might avoid notice through muted prose, it missed the mark. The decision attracted nationwide attention, and then spawned a rare special session of the California Legislature. The Legislature duly enacted legislation attempting to fix the Commission's alleged structural infirmities. Nevertheless, in stepped the California Supreme Court, a body not known for taking aggressive positions. In granting review, the Court stated that it would scrutinize both the Commission's new enabling statute and also whether all of the Commission's actions since its inception in 1972 should be invalidated - an order so sweeping that it amazed even the property rights lawyers who brought the case. In so doing, the justices set the stage for the most important California separation of powers decision in at least six decades and potentially in the state's history. This Article considers federal scholarship in the state context, but takes what might seem to be a somewhat radical position: generally speaking, California courts should stay out of legislative-executive disputes over the structuring of the executive branch unless specific constitutional provisions are violated or emergency situations arise. Laws are the product of political compromise between Legislature and Governor: the California Constitution, far more than its federal counterpart, envisions a constant give-and-take between the political branches that judges would do well to stay out of, except in extreme circumstances. And because the California Constitution creates this particularly messy politics, the judiciary simply cannot neatly segment roles between "legislative" and "executive" functions because doing so would ignore the essence of the process. In short, judicial intervention in disputes over control of the administrative state undo carefully crafted political compromises and yield nothing in return except doctrinal chaos. This Article lays the groundwork for establishing a general theory of state separation-of-powers law. The majority of state constitutions contain the most important factors implying strong judicial deference. In recent years, scholars have persuasively contended that state constitutional law should exist as a discipline in its own right: enough commonality exists between states that the field need not fragment itself into 50 pieces, but state government diverges sufficiently from the federal that it makes no sense to simply fold the study of state charters into traditional American constitutional law. This Article agrees; federal separation of powers law simply does not apply in the state context. State courts should look more carefully at their own constitutions to create a more realistic separation of powers jurisprudence than their federal counterparts. If "realistic" here means far less jurisprudence than before, then that merely reflects the doctrine's problematic underpinnings.
    The Decline of Judicial Decision Making: School Desegregation and District Court Judges North Carolina Law Review, Vol. 81 Wendy Parker Wake Forest University - School of Law Abstract:
      This article examines all published or electronically available federal district court opinions concerning school desegregation from June 1, 1992 to June 1, 2002 and their disposition on appeal. Based on the resulting analysis, the article argues that the commonly held perception of the all-powerful district court judge is outdated. Instead of controlling the process and outcome of the school desegregation cases, district court judges have ceded to the parties, particularly the defendants, a great deal of control over both the process and outcome of the litigation. In doing so, the judges have allayed, to no small degree, many of the criticisms of their role in school desegregation. Yet the price of the deference to defendants has been denial to school desegregation plaintiffs the fulfillment of their rights, even under the admittedly pro-defendant standards of the Supreme Court. This Article identifies two Alabama district court judges who are exceptions to the pattern of deference to defendants. Unlike their colleagues, these judges have taken an active role in overseeing their school desegregation cases. Through their efforts, school desegregation suits are being dismissed, but only after thorough and relatively successful desegregation efforts.
    What School Desegregation Teaches Affirmative Action Wendy Parker Wake Forest University - School of Law Abstract:
      This article considers the claims of the dissenting Justices in Grutter v. Bollinger that the majority's approach to strict scrutiny was both novel and wrong. The article argues that the majority's decision to defer to education officials when applying strict scrutiny is far from new and not nearly as dangerous as claimed. In making this argument, the article examines affirmative action through two lenses rarely connected to affirmative action: school desegregation and federalism. The Grutter Court's strict scrutiny analysis is comparable in many respects to school desegregation jurisprudence, crafted in large part by the very Justices dissenting in Grutter. Similarly, federalism principles strongly supported elsewhere by the Grutter dissent provide some justification for Grutter's approach to strict scrutiny. Yet, school desegregation jurisprudence also demonstrates good reason to be cautious in applying federalism principles to Equal Protection Clause jurisprudence. This Article ultimately comes to support Grutter’s notion of deference. The judiciary certainly has limited expertise in educational policy and limited success in affecting social change. As a practical matter, defendants must have some authority in constitutional decision making.
    Attacking Brandenburg with History: Does the Long-Term Harm of Biased Speech Justify a Criminal Statute Suppressing it? Federal Communications Law Journal, Vol. 55, No. 2, March 2003 Anuj Desai University of Wisconsin - Madison - Law School Abstract:
      Racist speech has long been the subject of significant controversy in First Amendment jurisprudence and scholarly commentary. In a recent book, Alexander Tsesis argues that, when systematically developed over long periods of time, "hate speech" lays the foundation for harmful social movements that ultimately result in the oppression and persecution of "outgroups." From this premise, Tsesis argues that the United States Supreme Court should overrule Brandenburg v. Ohio, the case in which the Court held that advocacy or incitement must be likely to result in imminent harm before it can be constitutionally proscribed. Tsesis's book then proposes a model statute to criminalize "hate speech" based on the long-term harm such speech can cause. In this Essay, I question the book's premise and its conclusion. My principal argument is that Tsesis misunderstands one of the underlying bases of the "imminent harm" requirement in Brandenburg. Rather than being premised on a view that speech cannot cause long-term harm, Brandenburg's "imminent harm" requirement is designed primarily as a prophylactic rule to prevent government from using a long-term harm rationale to suppress speech based on the government's view of truth. To support a law criminalizing speech, therefore, it is not enough to rely on the long-term harm that the speech can cause.
    Lessons from the Rise and (Possible) Fall of Chinese Township-Village Enterprises William and Mary Law Review, Vol. 45 Brett McDonnell University of Minnesota Law School Abstract:
      The success of Chinese township-village enterprises (TVEs) poses a puzzle for a property rights approach to the theory of the firm, since no one really holds well-defined, transferable property rights to control and claim the residual profits of TVEs. TVEs also pose a second puzzle: in the last five or seven years, they have started to experience serious problems, despite reforms which have improved TVEs from a property rights perspective. This paper takes ideas from property rights and institutional approaches to economics and examines whether those ideas can help explain both of these puzzles. As to the first puzzle, reforms in the seventies and eighties created product market competition and gave local governmental officials and TVE managers enough of a stake in the success of the enterprises to encourage investment in them. TVEs were less imperfect than their leading alternatives, state-owned enterprises and private enterprises, the latter of which faced much discrimination. As to the second puzzle, although property rights reforms have improved TVE performance, reforms reducing the discrimination against private enterprises have made them more attractive. The paper also draws four general lessons from the TVE experience about the relationship between property rights and economic development. First, defining property rights properly is important to development, but other institutions (e.g. norms, financial institutions, capital markets, labor markets, political structure) are also quite important. Second, would-be reformers need to carefully consider the political constraints facing proposed changes in property rights. Third, property rights reforms are at least as much the effect of economic development as they are its cause. Fourth, the development path followed may affect the end states which can be feasibly reached.
    The Tenuous Relationship Between the Fight Against Money Laundering and the Disruption of Criminal Finance Journal of Criminal Law & Criminology, Vol. 93, p. 311 Mariano-Florentino Cuellar Stanford Law School Abstract:
      The reality of criminal enforcement depends only in part on the content and interpretation of criminal statutes. Criminal justice is also powerfully shaped by regulatory rules, civil penalties, and the detection strategies that investigators and prosecutors use to learn about offenses. Together these components can interact to produce a distribution of punishments radically disconnected from the justifications given for the criminal statutes. This article examines the fight against money laundering as a case study illustrating this dynamic. To launder money is to hide its illegal origin. The fight against money laundering is supposed to disrupt laundering in its various forms - especially what is done by third party launderers and leaders of criminal organizations. In the process, the fight is supposed to interfere with the activities of people who finance and profit from crime. Yet this fight delivers less than what it promises. Like many other enforcement systems, the fight against money laundering involves three major components: statutes with criminal penalties charged by prosecutors, rules administered by regulators, and detection systems primarily run by investigators. A close analysis of its three components reveals the fight to have quite a limited scope, involving (1) the disproportionate imposition of severe penalties on predicate offenders who are easily detected; (2) lax and narrowly–focused regulatory authority; (3) limited capacity to detect a range of chargeable domestic and international offenses; and (4) global diffusion of a fight against money laundering that leaves implementing authorities plenty of room for discretion and lax enforcement. These limitations probably arise not because of blindness or bad intentions but because the major players involved in running the system - including legislators, prosecutors, investigators, and regulators - face a tangle of incentives that leads them to dilute the intensity and scope of enforcement against some targets and to enhance the sanctions faced by other targets. While there is some evidence that suspicious activity reporting probably helps identify drug money placement in banks, the system seems ill-suited to detecting and disrupting the larger universe of criminal financial activity that is so often vilified by the rhetoric justifying the fight against money laundering. All of this makes it hard to target terrorist financing using the anti-laundering system, even though it is easy to freeze assets allegedly linked to terrorism. Some changes in the system, such as enhancing audit trails and strengthening suspicious activity analysis, could be defended in the name of making the system work, though politics would make their ultimate consequences hard to predict. In the meantime, any inequities in the detection of predicate crimes end up being reproduced in money laundering prosecutions, and the system's most compelling objectives - detecting crimes in a new way, and targeting third–party launderers and leaders of criminal networks - seem mostly beside the point.
    Pulling Skeletons From the Closet: A Look into the Work-Product Doctrine as Applied to Expert Witnesses Charles Ehrhardt and Matthew Schultz Florida State University - College of Law and US District Court for the Northern District of Florida Abstract:
      This article explores the potential for discovering pretrial, or revealing during the cross-examination of an expert during trial, otherwise protected work-product materials that have been supplied to the expert witness by counsel. The first part of this article discusses the disclosure of fact work-product relied on by the expert in forming an opinion during cross-examination as well as whether it is subject to pretrial discovery. The article then analyzes whether additional protection is given to opinion work product supplied to or relied on by the expert witness. Finally, the article discusses whether the work product protection has been waived if the expert uses work product material to refresh recollection both prior to and during the trial.
    Exercising Free Choice in Corporate Law Jens Dammann Max Planck Institute for Intellectual Property, Competition and Tax Law Abstract:
      U.S. corporations are free to choose the state law governing their internal affairs, a concept one can refer to as free choice in corporate law. At least in principle, that concept also applies in the European Community. In both cases, the legal mechanism ensuring free choice is the state of incorporation doctrine, under which a corporation's internal affairs are governed by the law of the state of incorporation. However, presuming that free choice is efficient, an obvious question to ask is whether the state of incorporation doctrine is really the most beneficial way of granting free choice. Strikingly, though, existing legal scholarship all but ignores that question. The present article argues that while there are sound reasons for retaining the state of incorporation doctrine as one mechanism for granting free choice, it should not be the only such mechanism. The state of incorporation doctrine has significant drawbacks. For example, it does not allow corporations to choose the applicable corporate law without facing exposure to litigation in the state of incorporation. These drawbacks are significant both in the U.S. and in the European context. More importantly, though, there is reason to believe that the various disadvantages of the state of incorporation doctrine are largely responsible for the general unwillingness of U.S. and European firms to incorporate in a jurisdiction on the other side of the Atlantic. Therefore, federal law in both Europe and the United States should complement the state of incorporation doctrine by requiring states to offer at least one business corporation statute that allows corporations to choose the applicable state law in their articles of incorporation.
    The Force of Law on Collective Bargaining: Empirical Research and Labor Law Reform Ellen Dannin and Gangaram Singh Wayne State University - School of Law and San Diego State University - Department of Management Abstract:
      Labor law reform is passionately debated among union activists and officials, labor economists, and industrial relations scholars. Despite the passion of the debate, it is based on almost no empirical evidence as to the operation of variations on law. Rather, for the most part it has been based on anecdotal evidence or deracinated theory. Since opportunities for law reform are infrequent and the consequences of bad reform will fall on many in our society with unhappy effects on the economy, it is important that we have the best possible information about what form law reform should take. We have tried to shed light on this important issue by using bargaining simulations to explore how three systems for resolving bargaining impasses function. Each of the impasse resolution systems involved presented unique issues. The challenge for a system that resolves impasses by relying on implementation of employer final offers and striker replacement, as does the private sector, is that it creates doctrinal problems that do not fit comfortably within the framework of the NLRA and likely create a highly unbalanced system of bargaining. The simulations here support the conclusion that it does indeed unbalance bargaining power and create a sense of grievance. Even though a simulation may bear no relationship to reality, it is worth considering whether a system that is perceived as unfair, even by those who benefit from it can achieve the NLRA's goal of labor peace. The alternatives to private sector impasse resolution - interest arbitration and the more-market model - have theoretical appeal for various reasons. Those who advocate reaching an agreement and reaching it in a rational and fair way would find interest arbitration attractive. On the other hand, those who prefer less government intervention in the ordering of the workplace ought to prefer resolving impasses using pure bargaining power. The simulations, however, suggest caution before choosing either method. The chief advantage to interest arbitration is the participants had very positive reactions to it and it thus appeared most likely to lead to labor peace and support for the system. The bargaining power impasse method, on the other hand, was strongly disliked by employer caucuses and thus appeared likely to lead to deeply felt grievances on the part of employers. Finally, these simulations confirm that law plays a role in shaping what we do. Each of these regimes was the same with the sole exception of the law of impasse resolution, and yet that fact alone had a powerful effect beyond that single event.

Nickle at the University of Arizona James Nickle (Arizona State) presents at the University of Arizona Philosophy Colloquium.

Wenar on the Value of Rights At Tulane's Philosophy Seminars, Leif Wenar (University of Sheffield) presents Speech and the Value of Rights.

Symposium: The Jury at a Crossroad Nancy Marder has edited a symposium entitled The Jury at a Crossroad: The American Experience for the Chicago-Kent Law Review. Here are the titles & authors, some with abstracts, and all with links to full paper:
    Foreword John Paul Stevens Introduction Nancy S. Marder Abstract:
      The jury is integral to the American experience of democracy and yet it appears to be under attack. With negative press attention focused on the jury in recent years and calls for imposing limits on the jury gaining support in state and national legislatures, the jury is at a crossroad. Will reforms be made that weaken the jury's roles and power simply to provide a quick fix for an institution that is mischaracterized as broken? This symposium provides a multifaceted and sustained examination of the roles of the jury past, present, and future. It explores not only the broad roles that the jury does and should play in the American judicial system, but also offers reforms that take as their starting-point a "jury-centric" perspective to enable the jury to function most effectively in the future.
    The Origins of Felony Jury Sentencing in the United States Nancy J. King Abstract:
      This Article is part of a larger work that explores one aspect of the criminal process about which little is known but much is presumed: jury sentencing in non-capital cases. Additional articles include an examination of contemporary jury sentencing in three of the six states where it is still practiced, based upon sentencing data provided by each state and interviews with attorneys and judges. This Article is historical and concerns the development of jury sentencing in the United States at the end of the eighteenth century.
    How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research Samuel R. Sommers and Phoebe C. Ellsworth Abstract:
      Social science findings are often overlooked or oversimplified by legal scholars who write about race and juries. This body of empirical research offers important theoretical and methodological contributions to the study of race and jury decision making, yet it is also marked by inconsistencies and common design limitations. In the present article, we evaluate the state of this literature more critically and attempt to integrate its often disparate findings using psychological theories of racial bias and social judgment. Our review includes studies that measure the influence of a defendant’s race on the judgments of individual jurors; studies comparing the decision making of White and Black mock jurors; and a handful of studies that examine the impact of race at the group, or jury level. This analysis is followed by an exploration of a recent mock jury experiment that demonstrates the capabilities of social science research for investigating jury decision making in a controlled, yet highly realistic setting. Conclusions focus on future directions for the study of race and juries, and emphasize the general importance of utilizing multiple methodologies in any empirical investigation of the legal system.
    Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy Leslie Ellis and Shari Seidman Diamond Abstract:
      Impartiality is both elusive and important for the legitimacy of the jury and its decisions. After presenting a realistic version of impartiality that recognizes how jurors reach judgments, we present empirical evidence demonstrating the costs incurred when the promise of impartiality appears to be violated. We then evaluate various approaches aimed primarily at increasing the racial heterogeneity of juries. Finally, we describe a simplified, multimethod approach that combines improvements in source lists and a simple non-race-based geographic adjustment to improve the appearance and reality of jury impartiality by increasing jury heterogeneity.
    A Voir Dire of Voir Dire: Listening to Juror’s Views Regarding the Peremptory Challenge Mary R. Rose Abstract:
      The use of the peremptory challenge during jury selection continues to be a source of controversy, in part because critics are concerned about the attitudes and reactions of those allegedly excused on the basis of stereotypes, i.e., “for no reason.” In the present research a sample of people excused from criminal juries via the peremptory were followed-up and asked to speculate on why they were excused, as well as to rate their experience with jury selection on a number of dimensions. I hypothesized that even if all rationales involved some amount of “stereotyping,” people’s views about being excused should vary in terms of acceptability. Specifically, those excused on the basis of how they acted during jury selection, or because of prior experiences with the legal system, were both expected and found to be more accepting of the decision to excuse them compared to people excused on the basis of other personal characteristics. Despite differences in support for decisions, perceived reasons for being excused were not associated with other ratings of jury selection, including a sense of having been treated fairly, people’s overall satisfaction with the jury experience, or stated willingness to serve on a jury in the future. Further, when asked to provide examples of unfair treatment, the peremptory challenge was rarely mentioned. This research suggests that prospective jurors are aware of and rather accepting of the role of adversarial interests in jury selection.
    The Current Debate on Juror Questions: “To Ask or Not To Ask, That is the Question” Nicole L. Mott Abstract:
      This Article addresses the concerns as well as the advantages when courts allow jurors to submit questions to the court and/or witnesses. Based on reviewing the content of 2,271 juror questions submitted in 164 cases, the author categorizes what jurors typically ask and to whom jurors direct their questions. Most juror questions were directed to witnesses and experts. In both criminal and civil cases, jurors typically asked facts about the case, motives of both the witness and the defendant/party, and common practices of professions often unfamiliar to laypersons. In criminal cases, jurors were more likely to question specific eyewitness evidence or facts. More fitting to civil cases, jurors frequently asked financial questions. Most juror questions aimed to clarify testimony, not to introduce new evidence or interrogate witnesses. Jurors utilize the question-asking procedure to enhance their role as a neutral fact finder, not to the detriment of the adversary system. Based on empirical evaluations, and with appropriate judicial discretion and court management of questioning, the concerns of critics appear unfounded.
    Jurors and the Future of “Tort Reform”Judge B. Michael Dann Abstract:
      Jurors are not supposed to allow their personal attitudes about the law, including tort law, affect their decision. This Essay asserts, however, that jurors, acting as conscientious and impartial decision makers, in fact do have cognitive and emotional “stakes” in tort litigation, namely the trial process that they are subjected to, and in making fair and equitable decisions. Various “tort reform” proposals affect, for better or worse, jurors’ abilities to understand the evidence and the law, apply the law to the facts, and do justice. The author, a former trial judge, and a self-confessed “juror-centric” supporter of jury trial reforms, “rates” scores of current reform proposals according to their potential to improve or detract from the jurors’ abilities to do their jobs. Special attention is paid to two specific proposals of “high salience” for juries. Policymakers are urged to take jurors’ needs into account when considering changes in tort law and trial practice.
    When All of Us Are Victims: Juror Prejudice and “Terrorist” Trials Neil Vidmar Abstract:
      On September 11, 2001 all Americans became victims. The threat of terrorism at home and abroad, now and for the indefinite future, is not only to their physical safety and economic well-being, but also to their deeply held social and political values. The terrorists have been identified as members of the Muslim faith and most are of Middle Eastern ethnic descent. This Article discusses the problem of persons accused of being terrorists, or aiding terrorists, obtaining a fair trial in the light of this national victimization. Research conducted for the “American Taliban” case of John Walker Lindh, reported in the Article, illustrates Americans’ emotional and cognitive responses to accused terrorists and raises serious questions about the effectiveness of routine procedural remedies for juror prejudice.
    Avoid Bald Men and People with Green Socks? Other Ways To Improve the Voir Dire Process in Jury Selection Valerie P. Hans and Alayna Jehle Abstract:
      During jury selection, many courts adopt a minimal approach to voir dire questioning, asking a small number of close-ended questions to groups of prospective jurors and requiring prospective jurors to volunteer their biases. The Article describes research evidence showing that limited voir dire questioning is often ineffective in detecting juror bias. To improve the effectiveness of voir dire, the authors make four recommendations: (1) increase the use of juror questionnaires; (2) incorporate some open-ended questions; (3) expand the types of questions that are asked; and (4) allow attorneys to participate in voir dire.
    Death of An Accountant: The Jury Convicts Arthur Andersen of Obstruction of Justice Stephan Landsman No abstract Nullification at Work? A Glimpse from the National Center for State Courts Study of Hung Juries Paula L. Hannaford-Agor and Valerie P. Hans Abstract:
      In recent years, the criminal justice community has become increasingly concerned about the possibility that jury nullification is the underlying motivation for increasing numbers of acquittals and mistrials due to jury deadlock in felony jury trials. In this Article, the authors discuss the inherent difficulty in defining jury nullification and identifying its occurrence in actual trials. They review the evolution in public and legal opinion about the legitimacy of jury nullification and contemporary judicial responses to perceived instances of jury nullification. Finally, the authors examine the possible presence of jury nullification through empirical analysis of data collected from 372 felony jury trials in four state courts. Jurors’ opinions about the fairness of the law proved to be related to trial outcomes. However, case characteristics, particularly the strength and credibility of trial evidence, were the strongest predictors of verdicts. The authors conclude that jury nullification is an unlikely factor in the vast majority of felony trials. When juror attitudes about legal fairness do play a role, they most likely do so by affecting how jurors perceive and interpret trial evidence, rather than by leading jurors to intentionally disregard the governing law.
    Jurors as Statutory Interpreters Lawrence M. Solan Abstract:
      The standard division of labor at trial is that jurors find facts and judges interpret statutes. But this was not always the standard, and it is still not always so. Until the end of the nineteenth century, it was up to jurors not only to find the facts, but also, to determine the law, at least in criminal cases. This task was considered an important part of democratic government in that it created a buffer of twelve citizens who could refuse to convict if a law was considered unduly oppressive. This history is sometimes discussed as relevant to the practice of some juries to engage in nullification. The practice, however, is far more widespread. Juries are routinely called upon to determine whether a defendant’s conduct fits within the fair and ordinary meaning of a statute, which is exactly what appellate judges must determine when deciding cases that involve statutory interpretation. More than two hundred years into the nation’s history, the legal system remains ambivalent about just how broad the jury’s role should range.
    A Conservative Perspective on the Future of the American Jury Trial Robert P. Burns Abstract:
      The American jury trial has evolved in a way that is deeply respectful of the dense complexity of competing values that pervade our common life. The consciously structured hybrid of languages and practices of which the trial is composed reflects those values fairly. The trial is thus the crucible of democracy. Simplistic understandings of the trial rooted in a form of legal positivism and an affection for bureaucracy threaten it. We must be very careful of distorting the architecture of what we have achieved in one of greatest achievements of our public culture. This is not to say that reform is impossible, but reform must be approached carefully and with an adequate understanding of what the trial means for us.
    Proof Beyond All Possible Doubt: Is There a Need for a Higher Burden of Proof When the Sentence May Be Death? Judge Leonard B. Sand and Danielle L. Rose No abstract

Gillette on Direct Democracy and Debt Clayton Gillette (New York University Law School) has posted Direct Democracy and Debt (forthcoming Journal of Contemporary Legal Issues) on SSRN. Here is the abstract:
    The constitutions of numerous states require municipalities to obtain electoral approval prior to issuing debt. When the electorate rejects debt proposals, however, officials may proceed with the proposed project through an alternative financing mechanism that does not require a vote. There are two sets of competing explanations for this phenomenon. The first, benign, explanations suggest either that the alternative forms of financing do not implicate the concerns that underlie debt election requirements, or that those who vote in bond elections do not represent residents' preferences. Thus, circumvention of bond election results by local officials does not contravene the interests of the community. If that is the case, then bond election requirements may be superfluous or harmful. The second, more malign, explanations suggest that local officials who pursue rejected projects seek to avoid constraints on agenda-setting authority, or to serve limited interests that do not reflect the general welfare of the municipality. If that is the case, then election requirements may reduce agency costs and should arguably be extended to alternative financing mechanisms that are currently excluded. While it is difficult to determine which of these effects dominates, I speculate that the Ultimatum Game structure of bond elections may generate a result that approximates an optimal level of debt for municipalities.

Conference on the Philosophy of Need Today through September 28, the Royal Institute of Philosopy is sponsoring at Conference on the Philosophy of Need at Durham. Here is a list of 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
And here is a description of the theme:
    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.

Thursday, September 25, 2003
Filesharing, HTTP, P2P, and Copynorms Ed Felten points to a post by by Ernest Miller on Law Meme, titled Compulsory Licensing - Where Are the Defenders of HTTP?. If you are interested in IP theory, read this!
    I venture that there seems to be a different set of copynorms for the practice of filesharing via P2P and http. Certainly some defend filesharing via both P2P and http, but others strongly defend P2P with nary a word in favor of http filesharing. Although I have no proof, I suspect that the public's attitude toward filesharing would differ based on the protocol at issue. Would 12-year old Brianna Lahara think it was okay for her to put all her music on a website for the world to copy? Why don't we see people uploading files to their websites more often? Why aren't they more upset when told they can't upload to their website then when they make files available via a filesharing program? I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act [Can't stay away from that Public/Private distinction, huh? - Ed.]. If I were to stand on a street corner handing out CD-Rs to strangers (even were I doing so with no possibility of remuneration of any sort), most people would not consider that proper. If the RIAA were to sue me for such an act, would there be such an outcry over the injustice of it all? Yet, if I handed a CD-R to a friend, most would defend it. The difference is that one is private and the other public.

Must read! Surf on over to Crooked Timber for Chris Bertram's post on The genealogy of morals. Here is an excerpt from a New York Times story by Adam Cohen:
    Give a capuchin monkey a cucumber slice, and she will eagerly trade a small pebble for it. But when a second monkey, in an adjoining cage, receives a more-desirable grape for the same pebble, it changes everything. The first monkey will then reject her cucumber, and sometimes throw it out of the cage. Monkeys rarely refuse food, but in this case they appear to be pursuing an even higher value than eating: fairness.
And here is a snippet from Chris's post:
    Interesting, suggesting at least that monkeys on the receiving end of unfairness will would prefer to have nothing than be part of an unjust arrangement. It is a result that is consonant with lots of behavioural experiments involving humans, who will often walk away from a deal rather than maximizing their return.
Lot's more with good links!

Froomkin on a little known Internet Crisis Let me again recommend Michael Froomkin's new blog ( to you. Try this post!

Would you sign the Constitution? Yesterday I posted on Sandy Levinson's recent (and negative) answer to this question on Findlaw. Surf on over to Discriminations for John Rosenberg's reaction. Here is a taste:
    Since Sandy’s strongest objection seems to be to our federalism, “which gives the Rocky Mountain states, especially, a totally unwarranted stranglehold on important aspects of public policy,” perhaps the best Sandyian solution would be a secession of the Blue States and their annexation to Canada.
Canada, unfortunately, also has a federal system! How about France? I especially like the idea of the Ministry of Education looking at his watch and saying, "At this time, I can tell you exactly what every Constitutional Law Professor is saying in Massachusetts."

Gillman at Yale on Partisan Entrenchment At Yale's Legal Theory Workshop series, Howard Gillman (University of Southern California, Political Science) is presenting Constitutional Law As Partisan Entrenchment. Here is a taste:
    I want to explore whether the concept of political entrenchment provides a useful perspective for understanding the political origins of liberalism in the Warren- and post-Warren-era federal judiciary. Rather than view these developments as a byproduc of unrestrained judicial activists intent of following personal political agendas, or even as a reflection of judges who act as if they are political blank-slates and simply adapt to changing political circumstances, I want to see whether modern judicial liberalism can be traced to the self-conscious efforts of Democratic Party office-holders in the 1960s. I hope to show that there are important similarities between the actions of Democrats in the 1960s and Republicans in the latter part of the nineteenth century,especially the use of legislation to reorganize and reconfigure access to federal courts, and the use of the appointment power to fundamentally alter the decision- making bias of the federal judiciary. After reviewing this record I will end by suggesting how this story might shed light on the extra-judicial origins of constitutional change within the courts, as well as change our understanding of concepts such as judicial activism.
Download it while its hot!

Maranze at UCLA on Foucault and History At UCLA's legal history workshop, Michael Meranze (UCSD, History Department) presents Michel Foucault, the Death Penalty, and the Crisis of Historical Understanding.

Walker at Boston University At Boston University, David Walker presents The Tax Implications of Deferred Equity Compensation.

Stout at Princeton At Princeton's Political Philosophy Colloquium, Jeffrey Stout (Princeton University) presents The Ethics of Piety: A Reading of the Euthyphro.

Johnston at Michigan At the University of Michigan's Law and Economics Series, Jason Johnston (University of Pennsylvania) presents Signaling Corporate Social Responsibility: An Economic Analysis of the Role of Disclosure and Liability Rules in Influencing Market Incentives for Business Behavior.

Gomez on Hourly Billing At George Mason, Fernando Gomez (Universidad Pompeu Fabra) presents Cashing by the Hour: Why Large Law Firms use Hourly Fees.

Günther at NYU At NYU's Colloquium in Legal, Political and Social Philosophy (Nagel and Dworkin), the speaker is Klaus Günther (University of Frankfurt) and the paper is Legal Pluralism and the Universal Code of Legality: Globalisation as a Problem of Legal Theory. Here is a taste:
    Whether and to which extent the demand of a democratic practice of negotiating about the universal code of legality has a chance to be realised remains an open question. Without nation state legislation it remains unclear which institutions serve best for democratic implementation. For the time being the code of legality is administered by different legal experts in different roles and fields, as already mentioned above. Therefore, the characterisation of contemporary transnational law as the law of legal experts (Juristenrecht) seems to be more appropriate. If one follows the path of democratic legitimacy, the procedures of negotiation would have to be institutionalised in such a way that power inequalities were neutralised, that rights to equal participation were granted, that third party interests were adequately represented, and that the procedures were transparent. In contemporary debates about globalisation one can observe a gap between a tendency to extend the model of the nation state to a global scale , and a tendency to a segmentation of legitimation procedures for different social systems - each social system shall have its own ("private") legal regime. The code of legality is still waiting for adequate democratic procedures.

Koelman on Copyright Theory in Europe Kamiel Koelman (Free University of Amsterdam - Computer/Law Institute) has posted Copyright Law & Economics in the Copyright Directive: Is the Droit d'Auteur Passe? (forthcoming in the European Intellectual Property Review) on SSRN. Here is the abstract:
    In continental Europe, copyright law is traditionally viewed as a so-called 'natural' right – briefly put: it is simply right for the author to enjoy the fruits of his labor. However, socio-economic considerations are becoming more in important in European copyright doctrine. One reason for this tendency is that more and more copyright matters are regulated at the EU level and that the European regulator explicitly adheres to the economic rationale for copyright law. In this contribution, it is investigated what the apparent economic policy goals are of the EU Copyright Directive of 2001 – which is by far the most ambitious piece of EU legislation the area of copyright to date. The purpose of this article is not to set-out new, cutting-edge economic theories on copyright law, but merely to analyze what the explicit and implicit aim of the Directive is and to explore what, according to standard, mainstream and widely known economic theory, will be the likely result of the new regulations on copyright law. Will the Copyright Directive succeed in achieving its apparent goals? What does economic theory predict about its impact? The emphasis is on the most important and controversial changes that the Copyright Directive brings about. These are the introduction of a right of temporary reproduction, the limiting of the exhaustion of copyright, the abolishing of remuneration rights and, last but certainly not least, the broad protection of technological measures – i.e. DRM systems. The article concludes that the Directive appears to be based on a great belief in the beneficial effects of granting property rights in information products and in the ability of the market mechanism to achieve an optimal result. However, it may well be argued that apparent faith in the 'invisible hand' of the market is unjustified. Particularly, the public good character of information products is not taken into account. Moreover, the provisions of the Directive may hinder competition to a further extent than copyright traditionally did, which could have an undesirable result as well. Additionally, the apparent reliance on market forces to match the demand for uses with the offered technological usage restrictions may be unsubstantiated. There may be valid arguments for limiting the freedom of contract and the freedom to block any information usage technologically.

Call for Papers: Securing Privacy in the Internet Age
    A Stanford Law School Symposium: Securing Privacy in the Internet Age What legal regimes or market initiatives would best prevent the unauthorized disclosure of private information while also promoting business innovation? March 13-14 2004 Stanford Law School Description:
      As individuals do more - shopping, talking, working - on-line, they leave private information behind in databases stored on Internet-connected servers. Companies store proprietary data on networked servers connected to the Internet. Computer security experts struggle to develop technology and best practices to protect this information from unauthorized intruders or inadvertent leaks. Are private initiatives sufficient to protect private and confidential information, or should the law allocate the responsibility of keeping the server secure, and if so, on whom? And will the imposition of this legal and economic burden impede further exponential advances like those the computer industry has made in the past decade? The Center for Internet and Society (CIS), part of the Law, Science and Technology Program (LST) at Stanford Law School announces an open call for papers addressing the ways in which application of various legal doctrines could induce software vendors, hardware companies and system administrators to adopt security-enhancing practices, report unauthorized disclosures of private information, properly value and remedy harm flowing from privacy breaches, while promoting vigorous competition and innovation. In the selection process, papers offering new perspectives, novel analysis, or innovative prescriptions will be given preference. Proposals from legal and other academics, economists, lawyers, scientists and technologists, as well as new voices are encouraged. Some suggested topics are posted on the conference website at: The event is funded by a generous grant from the cy pres fund established in the Supnick et al. v., Inc. and Alexa Internet, Inc. litigation. We are able to offer free admission to the symposium and anticipate a large audience of academics, executives, students, and U.S. and foreign policy makers. Those selected to present papers will be reimbursed for two- week advance purchased coach airfare to California and for two nights stay at the Westin, Palo Alto hotel.
    Interested parties should submit a 200 word abstract describing the proposed paper to; The deadline for submissions is October 13 and the selected presenters will be notified by mail by November 3. The website also allows visitors to register to be notified when we finalize the symposium schedule. Papers will be due May 3, 2004. The Symposium Editors will select the papers which will be published in a scholarly volume under a Creative Commons license that will allow authors to submit their papers to other publications, including law journals. The Symposium Editors are:
      * Margaret Jane Radin, Wm. Benjamin Scott and Luna M. Scott Professor of Law, Director, Stanford Program in Law, Science and Technology * Anupam Chander, Professor, UC Davis School of Law, Visiting Professor Stanford Law School, Spring 2004 * Lauren Gelman, Assistant Director, Center for Internet and Society, Stanford Law School
    If you have questions, you are welcome to contact Lauren Gelman, at The conference is organized by the Center for Internet and Society, part of the Program on Law Science and Technology at Stanford Law School.

The Semaphoric Role of Laaw Robert Ahdieh (Emory Law School) has put Law's Signal: A Cueing Theory of Law in Market Transition, forthcoming Southern California Law Review, Vol. 77, No. 2, 2004, up on SSRN. Here is the abstract:
    Securities markets are commonly assumed to spring forth from the intersection of an adequate supply of, and a healthy demand for, investment capital. In recent years, seemingly failed market transitions - the failure of new markets to emerge, and of existing markets to evolve - have called this assumption into question. In both the developed economies of Germany and Japan and the developing economies of Central and Eastern Europe, strong securities markets have failed to take hold. U.S. securities markets' resistance to the wider use of computerized trading, communications, and processing technologies, meanwhile, suggests some constraint on technological modernization. How are strong markets created and sustained, then, and what might be law's role in that process? This Article articulates a model for understanding the needs of efficient market transition and the resulting role of law in that process. Specifically, it suggests a "cueing" function for law in market transition. Grounded in game theory and microeconomic analysis of so-called network effects, the proposed cueing theory identifies the coordination of market participants' expectations as law's central role in market transition. Building on contemporary legal literatures on private regulation, social norms, and the expressive function of law, this theory suggests that in securities market transition - whether it be market creation in Central and Eastern Europe, or market restructuring in the United States - "law" primarily acts to encourage, convene, inform, and facilitate. Such a cueing function for law constitutes an important extension of traditional conceptions of what law does, particularly in securities law, but in other areas as well. Regulatory cues are neither coercive nor outcome determinative; are directed to coordination, rather than cooperation; and involve a close intertwining of public and private regulation. The exceptional character of law in this context, and the recent growth in areas where regulatory cues might be applied, may help to explain why such a role has not previously been elaborated. Yet in securities markets and other industries exhibiting network economies - from electricity transmission to telecommunications, and from interstate transportation to the Internet - a cueing function for law may be central to efficient transition. It may explain much of why "law matters" in that process.

Parisi and Lick on Functional Law and Economics Francesco Parisi and Jonathan Klick (George Mason University School of Law and American Enterprise Institute (AEI)) have posted Functional Law and Economics: The Search for Value-Neutral Principles of Lawmaking on SSRN. Here is the abstract:
    Functional law and economics, which draws its influence from the public choice school of economic thought, stands as a bridge between the strictly positivist and normative approaches to law and economics. While the positive school emphasizes the inherent efficiency of legal rules and the normative school often views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law's ability to remedy those failures on an issue-by-issue basis. The functional approach then uses economic tools to analyze market and legal behavior in order to create meta-rules which limit the extent of the failures in each realm. These meta-rules are designed to induce individuals to reveal their preferences in cases where collective choices are necessary, and to internalize the effects of their actions generally. This mechanism design or functional approach to law and economics focuses on ex ante social welfare maximization, rejecting both the ex post corrective function of law assumed by the normative school of thought and the naturally evolving efficient system view espoused by the positive school.

Wednesday, September 24, 2003
More on Ideological Voting in the Courts of Appeals Over the weekend, I blogged about Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, a recent paper by Cass Sunstein, David Schkade and Lisa Ellman (University of Chicago Law School , University of Texas at Austin - Management Science & Information Systems and University of Chicago - Law School). I was particularly struck by the following finding:
    In the great majority of circuits, a judge’s vote is predicted as well or better by the political affiliation of the president who appointed the two other panel members as by the political affiliation of the president who appointed the judge in question.
The authors suggested some explanations for this phenomenon, and adds to the list at this post. Here is a taste:
    The moderating effect: The judge in the minority may go along with the majorities' vote in order to exercise a restraining influence on the opinion issued. In other words, the judge may recognize that he can exercise more influence by siding with the other two judges and working to moderate the opinion than he could by dissenting. Thus, rather than being a compromise of the judge's ideology, his concurrence could be a calculated attempt to further his ideological leanings. The laziness effect: Writing a dissent equals more work. If you're already going to lose the case, there is little marginal benefit from dissenting (and thus having to write a dissent). Judges, like the rest of us, don't want to make work solely for the benefit of making work.
Sunstein, Schkade and Ellman have done important work, and I highly recommend their paper.

The Recall, Standards of Review and Transsubstantive Procedure For a review of the Ninth Circuit's recall decision and its implications, go here.
    Introduction One day is simply not a sufficient span of hours to grasp an important appellate decision. (And it isn't enough time to write one, either!) Nonetheless, 24 hours of reflection is better than none. After a day, I believe the key to understanding the recall decision lies in the procedural posture--appellate review of a decision denying preliminary injunctive relief. For nonlawyers or beginning law students, this requires some explanation. The aim of this post is to put yesterday's decision in its procedural context--and when we have done that, I think that much of the heat and light should dissipate--revealing a rather modest decision that corrected a significant procedural mistake.
    The Procedural Posture in the Recall Case Here is a step-by-step guide to the procedural posture of the recall case:
    • Step One: The action is commenced in a federal trial court.
    • Step Two: The plaintiffs seek a preliminary injunction, and the trial judge denies preliminary injunctive relief.
    • Step Three: The plaintiffs seek immediate review ("interlocutory appeal" is the jargon) of the trial court's decision.
    • Step Four: A three judge panel of the United States Court of Appeals for the Ninth Circuit issues an opinion reversing the trial judge on the preliminary injunction issue.
    • Step Five: The full Ninth Circuit agrees to rehear the appeal. The panel decision is vacated (meaning it is nullified). Briefs are filed and oral argument is heard on an accelerated schedule. Under Ninth Circuit rules, the case is before an 11 judge panel consisting of the Chief Judge and 10 other members of the active Ninth Circuit bench selected at random.
    • Step Six: The 11 judge panel affirms the district court. (Not reverses the panel decision--because that decision "no longer exists".) As a result, the case can go forward in the trial court, but without preliminary injunctive relief. That means the recall election can go forward.
    One more thing: a preliminary injunction is special. When you get a preliminary injunction, you get relief even though you haven't yet won. So a preliminary injunction should only be granted if one of two situations obtain: (1) you have a really strong case and we give you relief right away in order to preserve your rights, or (2) you have a chance of winning, and the balance of hardships is such that you will suffer greatly if you don't get immediate relief and the other side will incur a must less substantial injury.
    Standards of Review When an appellate court reviews a decision of a trial court judge, it does so through the lens or prism of a "standard of review." What is that? A standard of review defines the power relationship between the trial court and the appellate court. One some issues, the appellate court is required to be deferential to the fact finding or discretion of the trial judge. On other issues, the appellate court has all the power. Here is the conventional way that we carve up the world of standards of appellate review:
    • Questions of law are reviewed de novo. When the issue on appeal is a pure question of law, then the appellate court gets to decide the issue as if the trial court didn't even exist. Hence, the phrase "de novo," meaning "as if it were new." On questions of law, the appellate judges owe no deference to the trial court judge.
    • Findings of fact by the trial court judges are only set aside if clearly erroneous. If a trial judge makes a finding of fact, the appellate court is supposed to defer to that finding, unless it is "clearly erroneous." This means the trial court judge gets (1) to determine the credibility of the witnesses, (2) to weigh conflicting evidence, (3) and to determine what inference to draw if the evidence can be interpreted in more than one way.
    • Discretionary decisions by the trial court judge are only set aside if there was an abuse of discretion. Judges do more than find facts and apply the law to the facts. Judges must exercise practical judgment. When and how? Judges have to make management decisions all the time. How long should the trial last? How many witnesses can each party call? When does discovery become redundant or burdensome? One of the most important ways in which judges must exercise their practical judgment is when they are called upon to issue an injunction--a coercive order addressed to a person or legal entity. When a judge exercises discretion (practical judgment), the appellate court is supposed to defer to the trial court judge. Only if there is an abuse of discretion should an appellate court upset a discretionary decision by a trial court judge.
    The Standard of Review for Preliminary Injunctive Relief So what is the standard of appellate review for a trial court's decision to grant or deny preliminary injunctive relief? The answer is "abuse of discretion." But here is where it gets complicated. Although the global decision whether to grant or deny a preliminary injunction is discretionary, that global decision can only be reached by going through a series of steps. The trial judge needs to interpret the law and find the facts, before going on to making the practical judgment whether a preliminary injunction is appropriate. So when an appellate court decides whether the trial judge has abused her discretion, the appellate court must look at the whole picture through the lens of the abuse-of-discretion standard, but incorporate de novo review of the law and clearly erroneous review of any fact finding. If that sounds confusing to you, join the club. Many appellate court judges have a hard time sorting out this complicated combination of deference on the facts and the balancing of hardships with de novo review of the law.
    The Court's Reasoning on the Abuse of Discretion Issue So here is what the Ninth Circuit said about the standard of review:
      We review the district court's decision to grant or deny a preliminary injunction for abuse of discretion. * * * Our review is limited and deferential. The district court's interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law. * * * Thus we have held that an order will be reversed only if the district court relied on an erroneous legal premise or abused its discretion.
    And that's exactly right.
    But easier said than done. There are actually two, subtly different, issues that the trial court had to face (and hence the Ninth Circuit had to review):
      First, did the plaintiffs have a really strong case on the merits, such that we think it is really likely they will win at trial and get a permanent injunction? If so, then the plaintiffs should get a preliminary injunction, unless the plaintiffs won't be harmed by delay and the defendants (or third parties) would be.
      Second, even if the plaintiffs don't have a slam dunk, do they have a shot at it? If so, then the plaintiffs should get a preliminary injunction, if (BIG IF), the plaintiffs would be badly hurt by delaying an injunction and the defendants (or third parties) would not suffer greatly.
    So here is what the Ninth Circuit said:
      On the first issue, the 11-judge panel's message was that the plaintiffs don't have a slam dunk, on either the facts or the law. On the facts, their evidence was O.K., but not overwhelming. In oral argument, Judge Kozinski convincingly demonstrated that their plaintiff's evidence on punch-card voting was inconclusive. (Hardly suprising given the limited time the plaintiffs had to gather evidence and work with their expert witnesses.) On the law, the panel said that the equal protection argument, although not unreasonable, had obvious weaknesses. When viewed through lens of the abuse of discretion standard, the panel concluded there it was not an abuse of discretion when the trial judge said that he wasn't going to give the plaintiffs a preliminary injunction because he wasn't convinced they would win at trial.
      On the second issue, the 11-judge panel agreed with the trial judge that the plaintiffs had a chance of prevailing on the merits. So then it comes down to the balance of hardships.
    And that balance-of-hardships issue requires an extended discussion.
    The Balance of Equities It is very important to distinguish final injunctions from preliminary injunctions. Why? Well, because a preliminary injunction is necessarily based on guess work and an intensely practical and particularized judgment about the best thing to do under difficult circumstances. Why difficult? Because either granting or denying preliminary injunctive relief is risky. If you grant a preliminary injunction and then the plaintiff loses at trial, you run the risking of really screwing things up. You call off the recall election, and then we hold a trial. If the plaintiff loses at trial, then the federal court looks pretty stupid. And of course, it isn't just "looking stupid." This would be a big-deal mistake. On the other hand, if you deny preliminary injunctive relief, and the plaintiff wins at trial, then that can be terrible. In the recall case, if you deny preliminary relief and then run the election, what do you do if the plaintiff wins at trial. Do you say, "Sorry Governor Bustamante (or whoever), we made a mistake. You aren't the Governor anymore. Sorry people of California, you have to vote again!"
    In other words, the decision to grant or deny preliminary injunctive relief puts the judge between a rock and a hard place. To make this decision, the judge has to look at the big picture, and balance all of the good and evil that could result from the alternatives before her. The appellate court is not supposed to redo this balancing process on appeal. Rather, the appellate court is supposed to defer to the district court--so long as the district court did not abuse its discretion.
    So this was they key to the recall decision. Did the trial court judge abuse his discretion when he concluded that the balance of equities did not decisively favor the plaintiffs, given that the plaintiff had a shot at the merits but lacked a slam dunk case. I've used the phrase "balance the equities" but the same thing is sometimes called "balance of hardship." Doug Kmiec commented on this point in a piece entitled Law, Resurrected!. Here's what Kmiec said:
      It was the balance of hardship, however, that weighed heavily on the judges' minds. The advocates of delay fell into the old Florida mantra of "count every vote," continually obfuscating that hundreds of thousands of absentee ballots already cast would, in Judge Andrew Kleinfeld's words, need to be "junked" if the election were delayed. And beyond this was the "material hardship" the delay would impose upon the state of California and its citizens. Understated by the claimants was time and money spent on voter information, preparations to man the polls, the vast sum spent by candidates, and the time and attention this has already taken from the state's business. It is one thing for federal judges to sit in chambers and indulge fanciful legal theory, even theory perhaps benignly intended to make elections more perfect, it is another to tell citizens who have already voted "that their vote does not count and that they must vote again."
    Kmiec's presentation of this issue is imprecise and misleading, because he discusses the issue as if the Court of Appeals were doing de novo review. But, of course, that only makes his basic point the stronger. What the appellate judges would have done if they had balanced the equities is besides the point. What I would have done or you would have done is irrelevant. The legal issue was whether the trial judge abused his discretion.
    Abuse of Discretion And the abuse of discretion standard is intended to be highly deferential. If the trial court judge had been corrupted, that would be abuse of discretion. If the trial court judge had decided on the basis of evidence not in the record, that would be abuse of discretion. If the trial court judge had acted beyond reason in a manner that suggested that we was not exercising discretion but was instead acting on the basis of a whim or passion, that would be abuse of discretion. But the record in the recall case simply does not reveal anything that would constitute abuse of discretion. Of course, many people think the trial judge got it wrong. Some people think he was really wrong--way off base. But strong disagreement does not equal abuse of discretion.
    Should the Law Bend because of the Nature of the Case At this point, some readers may object: But this was not an ordinary case. This involved a recall election with monumental implications and important civil rights at stake. Shouldn't the appellate court be less deferential in such an important case? No. The whole point of having general rules of procedure is to create a neutral framework for the resolution of disputes. If judges bend the rules because of their perception of the importance of the case or the righteousness of the claims, then we open the door to the erosion of the rule of law. Legal theorists have a nice piece of jargon to describe the idea of neutral and general rules of procedure. They say that procedure should be "transsubstantive," that the rules of the game should transcend the particular teams that are playing the current match.
    It seems to me that much of the criticism that I've heard of the 11-judge decision in the recall case really comes down to an objection to the fact that the en banc Court applied the ordinary rules that usually govern appellate review of a denial of injunctive relief to this extraordinary case. The critics are saying, "This case is too important for abuse-of-discretion review." And the critics have another, related, point. If you search hard, you will find cases in which the Ninth Circuit has bent the rules before. It is very easy to for an appellate court to find an error of law in a trial judges opinion and then use that error as the wedge for reversal--playing games with the significance of the error of law. So the critics can say, "The Ninth Circuit has circumvented the abuse of discretion rule in other cases. If it doesn't do the same thing here, the reason must be ideological bias."
    But the unanimous decision joined by both liberals and conservatives, Democrats and Republicans, gives the lie to the criticism. The argument that judges should continue to disregard the law once they have started is sophistry. The remedy for injustice is justice. The cure of judicial lawlessness is judicial lawfulness.
    We hope that judges have the virtue of justice. That is, we hope for judges who have the ability to decide on the basis of the law and put aside their ideological biases when they make decisions. This isn't easy. It is tempting to bend the law to achieve the results that you believe are right. For appellate judges, it is especially tempting to relax a deferential standard of appellate review when you would have made a different decision than the trial court. These temptations were powerfully present in the recall case. That the rule of law prevailed instead is a reason for celebration.

The Iron Cage of Constitutionality Check out Why I Did Not Sign the Constitution: With a Chance To Endorse It, I Had To Decline by Sandy Levinson (Texas) on Findlaw. Here is a taste:
    Increasingly, I see the Constitution as an "iron cage" of dysfunctionality. Law professors tend to ignore this problem because the most important parts of the structural Constitution are the least likely to be litigated, and legal academics are obsessed with what it is that gets the attention of courts. But this problem is nevertheless very real: A problem need not end up in court, to be serious.
Levinson is both brilliant and iconoclastic. Highly recommended!

Shaviro on a Progressive Consumption Tax Daniel Shaviro (New York University School of Law) has posted Replacing the Income Tax With a Progressive Consumption Tax on SSRN. Here is the abstract:
    Shifting from an income tax to a consumption tax would offer major simplification advantages. Even if Congress created as many preferences and other special rules to what it has under the existing income tax, the massive set of complications that relate to realization and to the taxation of financial transactions would largely be eliminated. The main (though not the only possible) reason for opposing such a shift is the concern that it would require reducing progressivity. However, the capacity of a consumption tax to achieve progressivity comparable to that of an income tax is widely misunderstood, for two main reasons. First, a consumption tax purportedly exempts "capital income," seemingly raising the specter of its exempting the likes of Bill Gates and Warrant Buffett. As recent tax policy literature has shown, however, the only difference in theory between an income tax and a consumption tax pertains to the risk-free return to waiting, which historically has averaged less than one percent per year. The point made by this literature is by now familiar and well-accepted in some circles, but in others it remains unfamiliar or has been unduly dismissed. This article aims to win it wider acceptance. Second, many believe that wealthy people escape the burden of a consumption tax by deferring their consumption, and that advocates of such a tax ignore the effects of unconsumed wealth on one's security, political power, and social standing. The argument overlooks the fact that what makes wealth valuable is the real purchasing power that it commands. Otherwise, real money would be no different than Monopoly money. A consumption tax affects the purchasing power even of unspent wealth, and the burden it imposes generally is not reduced by deferring one's consumption. The article also discusses the choice between use of the origin basis and the destination basis in taxing cross-border transactions. A consumption tax can use either method, but an income tax is practically compelled to use the origin basis. Use of the destination basis would eliminate transfer pricing issues, although in their place it would create various problems that an origin basis tax avoids, such as the need for border adjustments (e.g., tax rebates for exports). Thoughtful consideration of the choice between the origin and destination basis upon shifiting to a consumption tax requires dismissing a popular canard, which is that the destination basis, because it exempts exports, offers an "export subsidy" that would favor countries using it in international trade competition. Economists universally agree that well-functioning origin and destination basis systems have equivalent incentive effects on international trade once in place. This suggests that a destination basis consumption tax should neither be favored politically as a tool of trade war, nor subject to successful legal challenge under the GATT.
And another paper by Shaviro: The Bush Administration's Huge Tax Cuts: Steps Towards Bigger Government?.

Baseball Labor Exports! Joanna Mehlhop Shepherd and George Shepherd (Clemson University - John E. Walker Department of Economics and Emory University School of Law) have posted U.S. Labor Market Regulation and the Export of Employment: Major League Baseball Replaces U.S. Players with Foreigners. Here is the abstract:
    Our analysis of the market for professional baseball players shows that domestic labor-market restrictions have reduced domestic employment, especially of African-Americans, with employers instead shifting employment overseas. Our theoretical model suggests that, in 1965, the imposition of both the player draft and stricter age minimums for hiring U.S. players reduced the benefits of signing and developing U.S. players, especially players from disadvantaged groups such as African-Americans. Our empirical analysis, using a new data set, then shows that, in response, teams have shifted to developing and hiring players from other countries where the regulations do not apply, such as Latin America.
And I thought it was all about talent!

Kornhauser and Sager on Group Choice Lewis Kornhauser (NYU) and Lawrence Sager (Texas) have posted The Many as One: Integrity and Group Choice in Paradoxical Cases on SSRN. Here is the abstract:
    There is a family of views that converge on the idea that the rational connection between reasons and actions that would be ideal in the case of an individual is also the appropriate ideal for political communities. Ideally, on this account, both should possess and be guided by a coherent set of beliefs and values. Dworkin, whose views fall within this family, speaks of the obligation of communities to behave as would a well-considered individual as the ideal of "integrity," and we follow that usage. We begin with the proposition that perfect integrity is impossible, as there exist paradoxical cases in which group consensus over reasons diverges from group consensus over courses of action. With this as our point of departure, we explore four difficulties with the concept and implementation of the ideal of integrity, difficulties that are sufficiently great to seriously threaten many accounts and applications of integrity: (1) Community decisions may reflect preferences, factual judgments, judgments of value or some combination, and the demands of integrity will vary across these circumstances; reason-based integrity may have no place at all, for example, in matters of group preference. (2) In group decisions implicating judgments of fact or judgments of value, the focus and strength of commitment may vary across individuals in ways that will fatally undermine a program of reason-based integrity. (3) A commitment to integrity across individuals with regard to a single community decision carries the conceptual entailment of consistency of community decisions over time; this makes legislative integrity impossible as a practical matter unless entrenched features of current legislative practice are reformed in ways that are at once impractical and, from a standpoint of democratic values, unattractive. (4) Community decisions are almost always made by smaller groups acting as the agent of the community - typically a legislative body whose members represent constituencies within the community; accordingly a conception of integrity must identify and justify the group to which integrity applies - the decision-making body, the constituency of the individual representative, or the community as a whole.

Pessach of Copyright's Diversity Externalities Guy Pessach (Yale University Law School - Fellow, Information Society Project) has posted Copyright Law as a Silencing Restriction on Non-Infringing Materials - Unveiling the Real Scope of Copyright's Diversity Externalities, forthcoming Southern California Law Review, Vol. 76, on SSRN. Here is the abstract:
    The main argument presented in this Article is that the harms and social costs of copyright cannot be summarized just in terms of enclosure and exclusion. Copyright law, I will argue, also has a silencing effect toward noninfringing creative materials of other independent creators and producers. Recent scholarly work has emphasized copyright's "dynamic effect," that is, the ongoing influence of expansive copyright protection toward an enclosure of the creative commons, and diminishment of cultural diversity. On the whole, however, this broad approach regarding the social cost of copyright in terms of diversity has focused only on instances and frameworks of creative activity in which a secondary author wishes to make use of existing copyrighted material, while a copyright owner (often a media conglomerate) imposes obstacles and limitations against such a use. The argument presented in this Article goes one step further in exploring the nexus of copyright and diversity. As I will show, an expanded copyright regime diminishes diversity in a more intrusive manner. Extensive copyright protection also has a chilling effect on the variety and diversity of creative works that are both noninfringing and not affiliated to copyright portfolios, or to the communicative activity, of commercialized corporate media. This outcome derives from the leverage extensive copyright protection affords to excessive exposure of corporate media's creative materials, as well as to the economic and cultural dominance of these media products. This Article demonstrates how the unique characteristics of media products, as public and solidarity goods, together with the advantages that extensive copyright protection grants large-scale corporate media, prevent alternative, noninfringing creative materials from reaching effective audience attention and competing equally for the public's attention and cultural preferences. Extensive copyright protection does so, first, by enabling commercialized media to deepen their market dominance and the cultural centrality of their products through ancillary and derivative markets, and second, by producing a "solidarity value" for the commercialized and commodified nature of media products. As this Article demonstrates, it is in this sense that extensive copyright protection has an undesirable silencing effect on noninfringing creative materials, and further diminishes diversity by inducing a wasteful competition among corporate media's relatively homogeneous products.

New Papers on the Net Here is today's roundup:
    Recognizing the Regulatory Commons: A Theory of Regulatory Gaps Iowa Law Review, Vol. 89, 2003 William Buzbee Emory University School of Law Abstract:
      Political economic theories, legal doctrine and political rhetoric frequently assume that overregulation is a pervasive problem requiring remedial measures. Despite the prevalence of these theories, Professor Buzbee demonstrates how a dynamic that he labels the "regulatory commons" problem can create predictable incentives for legislators or regulators to fail to address even broadly perceived social ills. The Article draws on and enriches the "tragedy of the commons" tale, with its usual focus on an underlying common pool resource and conflicts among users of that resource. Professor Buzbee shows how that literature's focus on the underlying resource and multiple resource users neglects incentives for inattention created by the existence of numerous potential regulators. Where numerous regulators share potential jurisdiction over a regulatory opportunity, and there is a mismatch between those regulators’ jurisdictions and the causes and effects of a harmful activity, a regulatory commons dynamic is created. The commons resource here is not the underlying threatened amenity, but the shared regulatory opportunity in a situation of jurisdictional mismatch. Where no regulator has primacy over such a social ill, those seeking a regulatory response will be uncertain where to turn, thereby fragmenting their demands and reducing each regulator's perception of a pressing social need. Potential regulators similarly will find ills encountering a regulatory commons dynamic to be unattractive opportunities for political investment and credit claiming. Regulators are unlikely to be blamed for a problematic status quo, will be unable to control other regulators, and if they choose to act may create ineffective regulation due to others' actions. Furthermore, drawing on public choice scholarship and behavioral law and economics, this Article shows how deviation from the status quo baseline will be especially disfavored in the setting of a dispersed social ills and fragmented regulatory frameworks. Professor Buzbee then reviews prominent overregulation theories, many drawn from public choice scholarship, and shows how such overregulation assumptions are reflected in contemporary administrative law jurisprudence. Propensities to ignore dispersed social ills created by the regulatory commons dynamic can be reconciled with overregulation theories. One can anticipate intermittent and sometimes stringent regulation, often created after events galvanize public perceptions of crisis. Stringent regulation, however, should not be mistaken for comprehensive regulation. The Article closes by discussing implications of the regulatory commons dynamic and offering means to surmount it.
    High School Drug Testing and the Original Understanding of the Fourth Amendment Hastings Constitutional Law Quarterly, Vol. 30, 2003 David Steinberg Thomas Jefferson School of Law Abstract:
      The United States Supreme Court has held that two different high school drug testing programs do not violate the Fourth Amendment to the United States Constitution. In these cases, the Court reached the correct result, but for the wrong reasons. A review of historical evidence indicates that the framers adopted the Fourth Amendment to deal with a single, specific issue. The framers sought to proscribe physical searches of residences pursuant to general warrants, or without any warrant at all. The Fourth Amendment simply never was intended to govern the issues raised by random drug tests. Discussion of unreasonable searches in the late eighteenth century primarily focused on three controversies - the John Wilkes cases in England, Paxton's case in Boston, and American opposition to the Townshend Act. All three controversies involved the use of general warrants to search residences. In Paxton's case, attorney James Otis complained that customs officials "may enter our houses when they please," and "may break locks, bars, and every thing in their way." As Thomas Davies has noted, Otis's clients were merchants who owned ships and warehouses. But Otis did not challenge searches of warehouses or the seizures of ships - only the searches of homes. Like Otis, other early American statesmen referred almost exclusively to searches of homes when they discussed unreasonable searches. One might conclude that the historical evidence on the Fourth Amendment is not helpful, and that courts should interpret the amendment based on some modern consensus about reasonableness. At least with respect to the issues raised by random drug testing, no such consensus exists. Compare the voting patterns of Chief Justice William H. Rehnquist and Justice David H. Souter. Justice Rehnquist has voted to uphold random drug testing programs in all six of the cases that the Supreme Court has heard. Conversely, in four cases where Justice Souter has participated, Justice Souter never has voted to uphold a random drug testing program. Consensus on what constitutes an "unreasonable search" for Fourth Amendment purposes may be limited to warrantless physical intrusions of homes. A search for a modern consensus about the meaning of the Fourth Amendment may reach the same result as a review of the intentions of the framers. When they adopted the Fourth Amendment, the framers only intended to proscribe warrantless physical searches of residences, and physical searches of residences pursuant to invalid warrants.
    The Antitrust-Telecom Connection San Diego Law Review, Vol. 40, p. 555, 2003 Steve Semeraro Thomas Jefferson School of Law Abstract:
      The Telecommunications Act of 1996 has spurred more than a dozen antitrust cases against local telephone companies alleging that by violating the Act the companies maintain their monopolies over local telephone service and thereby violate Section 2 of the Sherman Act. Existing antitrust-regulatory accommodation law has proven incapable of resolving whether antitrust claims can rest on violations of the Act. The circuits are divided, and each side appears incapable of comprehending the analytical analysis of the other. The divergent opinions can be explained by the courts' implicit reliance on two different lines of antitrust-regulatory accommodation doctrine. But neither strand of existing doctrine is appropriate in the telecom/antitrust cases, because existing doctrine was designed to accommodate antitrust with regulation that sought public policy goals other than competition. Where regulation seeks, like the antitrust laws, to enhance competition, a new approach is necessary. Courts have long been the primary makers of competition policy. The Telecom Act constitutes a rare instance of broad, direct legislative competition policy making. When Congress speaks so directly, courts need doctrine that takes account of that message. This article proposes a two-step approach that asks (1) whether applying the antitrust laws would interfere with the competition-enhancing regulatory regime, and (2) if not, how the regulation should affect antitrust analysis. Six possible degrees of connection between antitrust and competition-enhancing regulation emerge. And the degree appropriate to the telecom/antitrust cases would presume that violations of the Telecom Act have anticompetitive effect.
    Abusive Trademark Litigation and the Shrinking Doctrine of Consumer Confusion: Trademark Abuse in the Context of Entertainment Media and Cyberspace Harvard Journal of Law and Public Policy, Vol. 27 Kevin Greene Thomas Jefferson School of Law Abstract:
      The wholesale expansion of trademark law in recent years has led to absurd and abusive lawsuits by trademark holders in the institutional entertainment industry, such as a recent suit by Fox News against the author of a book that used Fox's trademarked slogan "Fair and Balanced" in the book's title. Although the insurance industry has for years railed against abusive personal injury suits, less attention has been paid to the abusive use of intellectual property law by corporations seeking to protect company image and silence critics, satirists and parodies of corporate culture. The expansion of trademark law has taken the law away from the original purpose of protecting consumers from deception in the marketplace, and resulted in a shrinking of the marketplace ideas and the public domain. Trademark law should not protect corporate personality at the expense of censoring communicative media such as film, music, and the Internet. Further, aggressive litigation tactics by the institutional entertainment industry are counterproductive to the industry, since institutional players such as film studios are not only owners, but also users of intellectual property. As users, restrictions on use by abusive suits can come back to haunt entities that need a robust public domain to produce product.
    The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001 Fordham Law Review, Vol. 71, p. 1233, 2003 Marjorie Cohn Thomas Jefferson School of Law Abstract:
      This article examines the historical development and contours of the attorney-client privilege, and its relationship to the Sixth Amendment right to counsel. It describes the state of the privilege before September 11th, including those provisions of Title III - the federal wiretapping statute - and the Foreign Intelligence Surveillance Act, which impact the privilege. The piece sets forth John Ashcroft's new Bureau of Prisons regulation and discusses the legal challenges to it. It explains the federal indictment against attorney Lynne Stewart, her response to the charges, and the judge's decisions. The indictment is based on information the government secured by monitoring Stewart's conversations with her client in prison. The article concludes by warning of the dangers that undermining the privilege poses to the criminal justice system.
    Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication Houston Law Review, Vol. 39, p. 1371, 2003 Linda Berger Thomas Jefferson School of Law Abstract:
      When a computer and a connection to the Internet allow almost anyone to claim to be a journalist, the question of who should be covered by media shield laws becomes especially difficult. Based on the premise that it is important to preserve the journalist's privilege and to accommodate the "unmedia" if that can be done without undermining journalism's values, this article suggests that the best way to limit the journalist's privilege is not to define "who is a journalist?" or "what is news?" Instead, the privilege should extend protection to anyone who is engaged in the work process of journalism. Drawing on the profession's standards, the article proposes that an individual is "engaged in journalism" when the writer is involved in a process that it is intended to generate and disseminate truthful information to the public on a regular basis. The article identifies key elements of the newsgathering process that can be judged objectively, and without undue intrusion into the editorial process, no matter who uses them or in what medium.
    The Duty Defined: Specific Obligations That Follow From Government Lawyers' Duty to Serve the Public Interest Brandeis Law Journal, Vol 42, 2003 Steven Berenson Thomas Jefferson School of Law Abstract:
      In Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?, 41 B. C. L. Rev. 789 (2000), this author attempted to provide an academic defense of what I described as "the public interest serving role" for government attorneys, namely, the proposition that government attorneys have greater duties to serve the public interest than their counterparts in private practice. Since that time, additional academic support has been provided for the public interest serving role, particularly as applied to civil government lawyers. Nonetheless, the public interest serving role for government lawyers remains controversial among academics. At least part of the reason for this continuing controversy may be a failure to translate government attorneys' general duty to serve the public interest, insofar as civil government attorneys are concerned, into specific rules of conduct that can provide guidance to such attorneys in their day to day work. The following article represents an initial effort to define rules and principles applicable to civil government attorneys in furtherance of their general duty to serve the public interest. Review of a wide range of cases, statutes, and ethics provisions suggest three areas in which special ethical obligations, distinct from those applicable to private practitioners, are emerging for civil government attorneys. These areas relate to government lawyers' duty to represent their clients zealously, confidentiality, and conflicts of interest. Each of these areas is explored below in an effort to articulate the particular responsibilities that flow from government lawyers' special duties to serve the public interest.
    Constitutionalising Enlargement, Enlarging Constitutionalism European Law Journal, Vol. 9, pp. 365-385, July 2003 Neil Walker Institut Universitaire Europeen Abstract:
      The relationship between the present enlargement and the development of an active constitutional discourse in the EU is a complex one. On the one hand, it may appear that the pre-existence and the current extension of the constitutional threatens to confront the enlargement countries, many of whom are understandably jealous of their recently won constitutional autonomy, with a whereby their membership of the club is conditional upon acceptance of an already mature constitutional doctrine and culture. On the other hand, EU constitutional discourse is by no means a closed book, or one which systematically favours old members over new. Rather, it remains an open-textured and provisional affair which is bound to address certain deep-rooted and urgent tensions over institutional design and fundamental values and which may do so in a manner that combats rather than accentuates the possibility of discrimination against the new members. In this regard, the current Convention on the Future of Europe and the Intergovernmental Conference to which it is directed represent a key episode in the ongoing development of the EU's constitutional identity.
    Administrative and Court Reform in Central and Eastern Europe European Law Journal, Vol. 9, pp. 288-315, July 2003 Frank Emmert Concordia International University Abstract:
      The pre-accession programmes of the European Union and the candidate countries have focused heavily on law reform. Only relatively recently, it was recognised that successful administrative and court reform would be just as necessary in order to achieve the desired goals, namely that the candidates would eventually be able to take on their obligations as new members of the Union. Unfortunately, it has now become evident that it is easier to write new laws than to get them properly applied in every day practice. This article describes a number of cases to illustrate the problem. It shows that administrators and judges in Central and Eastern Europe have significant difficulties with Western working methods, specifically the application of international norms in the national legal order, due process and procedural safeguards, treatment of precedents, resolution of ambiguities and lacunae in the law, etc., which may in turn result in unjust and sometimes absurd application of laws. These difficulties cannot be resolved merely by organising ever more training courses and other theoretical programmes. The author claims that the majority of efforts promoting administrative and court reform applied so far have rendered only meager results. Therefore, additional and more creative measures have to be designed and implemented and have to be continued for years beyond accession of most of these countries to the EU in 2004. Otherwise, rule of law deserving its name will not materialise in the new Member States. The author concludes by offering some ideas based on many years of experience in the region.
    The Amazing, Elastic, Ever-Expanding Exportation Doctrine and Its Effect on Predatory Lending Regulation Minnesota Law Review, Vol. 88, February 2004 Elizabeth Rose Schiltz University of St. Thomas - School of Law Abstract:
      Recent dramatic growth in predatory lending practices has reinvigorated calls for more effective regulation of consumer credit, primarily at the state level. This paper argues that a banking law principle known as the Exportation Doctrine has rendered individual state laws largely ineffectual in curbing predatory lending. However, this paper concludes that the expanded Exportation Doctrine, with a little bit of tweaking, could be shaped into a potent legal tool for regulating predatory lending, more effective than individual state legislation currently under consideration. The Exportation Doctrine has evolved from a discrete statutory privilege enacted during the Civil War to promote the national bank system, to an expansive legal doctrine allowing almost any type of corporate entity to establish a nationwide consumer lending program unrestrained by individual state consumer credit laws. This evolution was the result of a confluence of forces, including: individual depository institutions challenging various banking regulations; banking regulatory agencies accommodating their constituencies; power plays among the federal banking agencies, as well as among the state and the federal banking agencies; occasional Congressional actions in discrete, often seemingly unrelated areas of banking law; and courts almost uniformly deferring to the judgments of the federal banking agencies in issues related to the regulation of financial institutions. The Doctrine originated in a federal banking law permitting national banks to charge interest at the rate allowed under the laws of the state where the bank is located (12 U.S.C. Section 85). This paper traces the historical expansion of the Exportation Doctrine along three distinct dimensions. First, the geographic reach of the Doctrine was expanded, to transform the "location" of a bank from a meaningful restrictive concept to matter of choice. Second, the substantive scope of the Doctrine was expanded, as the term "interest" was interpreted to include not just numerical interest rates, but all credit terms "material to the determination of the interest rate." Third, the orbit of the beneficiaries of the Doctrine was expanded, initially to include state banks and savings and loan associations, and, more recently, to include nonbank corporate entities acquiring "nonbank banks" (such as credit card banks, unitary thrifts, or industrial loan companies) or entering into contractual arrangements with banks to offer products such as cobranded credit cards, refund anticipation loans, and payday loans. After describing the evolution of the Doctrine, this paper analyzes whether the various dimensions of the expansion are justified under basic principles of banking law. The paper concludes that the expansion of the geographic reach and substantive scope of the Doctrine is compatible with banking law doctrine and probably not susceptible to legal challenge. However, the expansion of the orbit of the beneficiaries of the Doctrine is incompatible with the separation of banking and commerce, and thus susceptible to legal challenge. Nevertheless, after examining the recent actions of the federal banking regulators in curbing predatory lending practices conducted by depositary institutions, this paper concludes that a robust Exportation Doctrine might be the most effective legal mechanism that exists for curbing predatory lending practices.
    Sex Offender Community Notification: Experiences from America The Howard Journal of Criminal Justice, Vol. 42, pp. 217-228, July 2003 Terry Thomas Leeds Metropolitan University Abstract:
      The UK sex offender register is at present 'closed' to any general public right of access despite the demands of various constituencies to grant such access. In the USA, registers are open to the public. This article explores the US experiences of disseminating information on sex offenders that started in the mid-1990s and seeks to draw lessons for the UK, on the practicalities that might ensue given a general right of access.
    Evaluating the Pluses and Minuses of Custody: Sentencing Reform in England and Wales The Howard Journal of Criminal Justice, Vol. 42, pp. 229-247, July 2003 Julian Roberts University of Ottawa Abstract:
      This article explores three sanctions contained in the 2002 Criminal Justice Bill which follows upon the 2002 white paper Justice for All. The Bill creates a Sentencing Guidelines Council to develop sentencing guidelines, and defines three dispositions applicable to sentences of imprisonment under twelve months: 'Custody Plus', the suspended sentence of imprisonment, and the intermittent sentence of imprisonment. These reforms constitute a significant step for the sentencing process in England and Wales, and are in part a response to the 2001 Halliday Report. The changes (among others) may well have an important impact on the prison population in England and Wales, which in October 2002 reached a record level. Since the suspended sentence of imprisonment bears close resemblance to the conditional sentence of imprisonment introduced in Canada in 1996, the article makes comparisons between the two sanctions.
    Providing Compensation for Harm Caused by Terrorism: Lessons Learned In the Israeli Experience Indiana Law Review, Vol. 36, No. 2, 2003 Hillel Sommer Interdisciplinary Center Herzliyah - Radzyner School of Law Abstract:
      Terrorism has existed in Israel in various manifestations and degrees for several decades now. This paper is being written as Israel is experiencing one of the most severe waves of terrorism in its history, killing hundreds of civilians, leaving behind thousands of wounded, and causing significant damage to much of the business community and to the economy. Israel has devised comprehensive legislative responses to two of the primary issues arising in the context of compensation for harm caused by terrorism: first, the Victims of Hostile Action (Pensions) Law, 1970 provides compensation for bodily injuries suffered in terrorist attacks, as well as compensating family members of deceased victims. Second, the Property Tax and Compensation Fund Law, 1961 provides compensation for property damage caused by terrorism. The resulting Israeli system of compensation has now reached stability, following several major modifications. The resulting system is unfortunately the product of significant experience in administration, both in terms of the time period involved and the number of events and victims. The main difference between the compensation scheme devised in the United States following the events of September 11, 2001 and the Israeli system is that the Israeli scheme is a permanent system, continually in place, the result of extensive and lengthy consultation, rather than an ad-hoc quick fix arrived at under severe time constraints in the emotional aftermath of major terrorist attacks, and causing multiple issues of inequity. The paper offers an analysis of the U.S. 9/11 compensation scheme using comparisons to the permanent Israeli system. Part I of the paper describes and analyses the compensation for bodily injuries and the compensation to family members of deceased victims offered by the Israeli government. Part II of the paper describes and analyses the compensation for property damage caused by terrorism. In the first two sections, I have provided a rather comprehensive account of the Israeli compensation schemes, primarily in the footnotes, for those readers who may be interested in the details. Part III of the paper provides observations on the advantages and disadvantages of a permanent compensation scheme such as the Israeli scheme as compared with the compensation scheme devised in the United States for the victims of the 9/11 tragedy.
    Privacy, Economics, and Price Discrimination on the Internet Andrew Odlyzko University of Minnesota - Twin Cities - Digital Technology Center Abstract:
      The rapid erosion of privacy poses numerous puzzles. Why is it occurring, and why do people care about it? This paper proposes an explanation for many of these puzzles in terms of the increasing importance of price discrimination. Privacy appears to be declining largely in order to facilitate differential pricing, which offers greater social and economic gains than auctions or shopping agents. The thesis of this paper is that what really motivates commercial organizations (even though they often do not realize it clearly themselves) is the growing incentive to price discriminate, coupled with the increasing ability to price discriminate. It is the same incentive that has led to the airline yield management system, with a complex and constantly changing array of prices. It is also the same incentive that led railroads to invent a variety of price and quality differentiation schemes in the 19th century. Privacy intrusions serve to provide the information that allows sellers to determine buyers' willingness to pay. They also allow monitoring of usage, to ensure that arbitrage is not used to bypass discriminatory pricing. Economically, price discrimination is usually regarded as desirable, since it often increases the efficiency of the economy. That is why it is frequently promoted by governments, either through explicit mandates or through indirect means. On the other hand, price discrimination often arouses strong opposition from the public. There is no easy resolution to the conflict between sellers' incentives to price discriminate and buyers' resistance to such measures. The continuing tension between these two factors will have important consequences for the nature of the economy. It will also determine which technologies will be adopted widely. Governments will likely play an increasing role in controlling pricing, although their roles will continue to be ambiguous. Sellers are likely to rely to an even greater extent on techniques such as bundling that will allow them to extract more consumer surplus and also to conceal the extent of price discrimination. Micro payments and auctions are likely to play a smaller role than is often expected. In general, because of the strong conflicting influences, privacy is likely to prove an intractable problem that will be prominent on the public agenda for the foreseeable future.
    Justice for All: Putting Victims at the Heart of Criminal Justice? Journal of Law and Society, Vol. 30, pp. 309-337, June 2003 John Jackson Queen's University Belfast - School of Law Abstract:
      This article considers the claim in the government's White Paper, to put victims and witnesses at the heart of the criminal justice system and argues that there is an unresolved tension within the paper between instrumentalist crime control concerns and intrinsic concerns for the rights of victims and witnesses. It is argued that many of the proposals now contained in the latest Criminal Justice Bill are so preoccupied with rebalancing the system away from offenders that they risk doing injustice to defendants with little tangible benefit to victims and witnesses in terms of rights and remedies.
    'Law in Context' Revisited Journal of Law and Society, Vol. 30, pp. 177-186, June 2003 Phil Selznick University of California, Berkeley - School of Law (Boalt Hall) Abstract:
      Although 'Law in Context' is a well-known motto for law-and-society scholarship, the idea could benefit from closer examination. This paper introduces a principle of 'fidelity to context' and suggests that contexts may be transcended by invoking general purposes and principles. These issues have special relevance for contextual analysis of free speech, academic freedom, and other rights and responsibilities. I also consider the relevance of legal pluralism, and the contextual analysis of human rights
    From Schweizerhalle to Baia Mare: The Continuing Failure of International Law to Protect Europe's Rivers Virginia Environmental Law Journal, Vol. 19, Winter 2000 Aaron Schwabach Thomas Jefferson School of Law Abstract:
      Professor Schwabach addresses the role of international environmental law in the aftermath of the January 2000 cyanide spill in Baia Mare, Romania in his article, "From Schweizerhalle to Baia Mare: The Continuing Failure of International Law to Protect Europe's Rivers." The spill, ultimately polluting waters in five countries, caused substantial short-term and long-term damage. The article emphasizes the failure of global and regional laws to protect transboundary waters from extraordinary chemical spills as well as from daily, routine activities. The article describes the Baia Mare incident, originating at a mine co-owned by a private Australian company and the Romanian government, that ultimately polluted three European rivers: the Somes, Tisza, and Danube. Professor Schwabach analyzes the treaties governing these Danube Basin rivers and Romania’s apparent violation of certain treaty provisions. He emphasizes that even though treaties existed, they failed to protect against this catastrophic environmental harm. The treaties represent conventional international law. Professor Schwabach also addresses governing customary international law, which balances a nation’s sovereign right to exploit natural resources lying within its boundaries against its duty to prevent harm to other nations from activities within its territory. Professor Schwabach suggests that the Danube Basin situation will improve, even considering the gross economic and political inequality within the region. However, he also cautions that other rivers are also in danger unless further international legal structures are implemented.
Additional papers of interest:

Tuesday, September 23, 2003
En Banc Decision in Recall Case: The Recall Election Is Back On Updated with Excerpts from the Opinion and Links to Commenatary and Reporting ACLU will not seek certiorari. Press release here. For an extended analysis of the standard of review issue scroll up to the top of the blog or click here.
    What Happened? The en banc Panel of the United States Court of Appeals for the Ninth Circuit has unanimously affirmed the District Court decision. The recall election is back on, pending further developments. The opinion of the en banc panel is available here or alternatively here. The Ninth Circuit has posted a summary of the En Banc decision. Here is the link, and here is the text:
      This matter was reheard by the United States Court of Appeals for the Ninth Circuit, sitting en banc, upon the vote of a majority of the non-recused active judges. The en banc panel affirmed the district court’s denial of a preliminary injunction in plaintiffs’ action alleging that the use of obsolete punch-card voting systems in the October 7, 2003, California special election in some counties (Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano counties) rather than others violates the Equal Protection Clause of the United States Constitution and Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. At the special election, California voters will be asked to vote on the recall of the California governor and two state propositions: Proposition 53, a proposed amendment to the California Constitution that would dedicate part of the state budget each year to state and local infrastructures, such as water, highway, and park projects; and Proposition 54, another proposed amendment to the California Constitution that would prevent the state from collecting or retaining racial and ethnic data about health care, hate crimes, racial profiling, public education, and public safety. The en banc panel held that the district court did not abuse its discretion in denying the preliminary injunction. The en banc panel concluded that the plaintiffs had not established a clear probability of success on the merits of their equal protection claim that voters in counties that use punch-card machines will have a comparatively lesser chance of having their votes counted than voters in counties that use other technologies. The en banc panel concluded that the plaintiffs had shown a possibility of success on the merits, but not a strong likelihood of success on the merits, of their claim that the disparate impact of punch-card ballots on minority voters violates Section 2 of the Voting Rights Act. The en banc panel concluded that the district court did not abuse its discretion in determining that plaintiffs will suffer no hardship that outweighs the stake of the State of California and its citizens in having this election go forward as planned and as required by the California Constitution. Accordingly, the en banc panel affirmed the district court’s judgment denying the preliminary injunction and directed the Clerk of Court to issue the mandate forthwith.
    What Does It Mean? The last phrase "issue the mandate forthwith" means that the Ninth Circuit has made its final decision and that power over the case has been returned to the United States District Court. Any further attack on the denial of the preliminary injunction must now take place either in the United States Supreme Court or in the District Court. Neither option seems promising. Moreover, because the decision was unanimous, and the panel included both Democrats and Republicans, the en banc decision will undercut any claim by the plaintiffs that they have been the victim of a decision based on low politics. Although I had earlier thought that it was likely that the plaintiffs would seek certiorari and a stay from the Supreme Court, it now appears that they have admitted defeat. (Howard Bashman makes this point here.) For all intents and purposes, it seems highly likely that the legal challenge to the recall election is over, and the ACLU has announced it will not seek certiorari.
    What Was the Legal Basis for the Decision? Essentially, the Ninth Circuit said two things. First, the plaintiffs had shown only a possibility of success on the merits--not a strong probability. Why? On the equal protection claim, the Court said that Bush v. Gore, although ambiguous, was distinguishable. On the Voting Rights Act claim, the Court said that the theory might be strong but the evidence did not establish "disparate impact" to a "strong likelihood." Second, the balance of equities did not favor a preliminary injunction, given only a possibility of success on the merits. Why not? Because delaying the recall would impair a significant interest of the voters of the State of California.
    Excerpts from the Opinion Itself And here are some highlights of the opinion itself:
    • Standard of Review.
        We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir. 1999). Our review is limited and deferential. The district court’s interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999). Thus we have held that an order “will be reversed only if the district court relied on an erroneous legal premise or abused its discretion.”
    • The Equal Protection Claim (Bush v. Gore)
        We have not previously had occasion to consider the precise equal protection claim raised here. That a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ. In Bush v. Gore, the leading case on disputed elections, the court specifically noted: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” 531 U.S. at 109. We conclude the district court did not abuse its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.
    • The Voting Rights Act Claim
        Plaintiffs have made a stronger showing on their Voting Rights Act claim. In a nutshell, plaintiffs argue that the alleged disparate impact of punch-card ballots on minority voters violated Section 2 of the Act, 42 U.S.C. § 1973. Plaintiffs allege that minority voters disproportionately reside in punch-card counties and that, even within those counties, punch-card machines discard minority votes at a higher rate. To establish a Section 2 violation, plaintiffs need only demonstrate “a causal connection between the challenged voting practice and [a] prohibited discriminatory result.” * * * There is significant dispute in the record, however, as to the degree and significance of the disparity. Thus, although plaintiffs have shown a possibility of success on the merits, we cannot say that at this stage they have shown a strong likelihood.
    • The Balancing of Equities re a Preliminary Injunction
        We therefore must determine whether the district court abused its discretion in weighing the hardships and considering the public interest. In this case, hardship falls not only upon the putative defendant, the California Secretary of State, but on all the citizens of California, because this case concerns a statewide election. The public interest is significantly affected. For this reason our law recognizes that election cases are different from ordinary injunction case. * * * Interference with impending elections is extraordinary, id., and interference with an election after voting has begun is unprecedented.
        If the recall election scheduled for October 7, 2003, is enjoined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date. Time and money have been spent to prepare voter information pamphlets and sample ballots, mail absentee ballots, and hire and train poll workers. Public officials have been forced to divert their attention from their official duties in order to campaign. Candidates have crafted their message to the voters in light of the originally-announced schedule and calibrated their message to the political and social environment of the time. They have raised funds under current campaign contribution laws and expended them in reliance on the election’s taking place on October 7. Potential voters have given their attention to the candidates’ messages and prepared themselves to vote. Hundreds of thousands of absentee voters have already cast their votes in similar reliance upon the election going forward on the timetable announced by the state. These investments of time, money, and the exercise of citizenship rights cannot be returned. If the election is postponed, citizens who have already cast a vote will effectively be told that the vote does not count and that they must vote again. In short, the status quo that existed at the time the election was set cannot be restored because this election has already begun.
    • Conclusion
        For these reasons, the district court did not abuse its discretion in concluding that plaintiffs will suffer no hardship that outweighs the stake of the State of California and its citizens in having this election go forward as planned and as required by the California Constitution.
    Links to Commentary Links to News Reports

Eastman on Ideology in the United States Courts of Appeals I blogged Sunday on Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, a recent paper by Cass Sunstein, David Schkade and Lisa Ellman (University of Chicago Law School , University of Texas at Austin - Management Science & Information Systems and University of Chicago - Law School). Over at Eastmania, Wayne Eastman has a post entitled Models of Judicial Ideology commenting on this very important paper.

Heinzerling at Florida State At Florida State, Lisa Heinzerling (Georgetown University Law Center) presents Priceless: Life, Health, Nature, and Other Stuff You Can't Buy. Chapter 4 Priceless: Of Knowing the Price of Everything and the Value of Nothing (with Frank Ackerman, forthcoming New Press, 2004).

Posner & Vermuele on Emergencies Eric Posner and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Accommodating Emergencies on SSRN. Here is the abstract:
    There are two main views about the proper role of the Constitution during national emergencies. We label them the "accommodation" view and the "strict" view. The accommodation view holds that the Constitution should be relaxed or suspended during an emergency. The strict view holds that constitutional rules are not, and should not be, relaxed during an emergency. The Constitution should be enforced "strictly" so that both civil liberties and government interests, such as national security, can be appropriately balanced. In this paper we critique the strict view. Defenders of the strict view have proposed two major rationales for their position. The first is institutional: emergencies work like a ratchet, so that constitutional protections are reduced in emergencies, while after the emergency is over the enhancement of constitutional powers is either maintained, or not fully eliminated. The second rationale is psychological: during an emergency, people panic, and when they panic they support policies that are unwise and excessive. Relaxation of constitutional protections would give free rein to the panicked reaction, when what is needed is constraint. The ratchet theory and the panic theory have become fixed points in the debate about emergency powers, yet have escaped rigorous analysis. As we will show, both theories suffer from insuperable conceptual, normative, and empirical difficulties. The ratchet theory lacks a mechanism that permits constitutional powers to rise and prevents them from falling, and makes implausible assumptions about the rationality of individuals who consent to constitutional changes during emergencies. The panic theory assumes that people can, while panicked, get outside themselves and constrain their own fear. Although people and officials panic, we have found little evidence that constitutions or other laws or institutions can control the panic, and cause people to lose their fear, or else choose, while panicked, laws that they would choose if they were not panicked. Finally, defenders of either theory do not examine their normative premises sufficiently: it is not clear that panics and ratchets, if they occur, are bad.

Lund on Direct Democracy Nelson Lund (George Mason University School of Law) has posted Rousseau and Direct Democracy (with a Note on the Supreme Court's Term Limits Decision), forthcoming in the Journal of Contemporary Legal Issues, on SSRN. Here is the abstract:
    This contribution to a symposium on direct democracy is devoted primarily to exploring Rousseau's modification of the natural rights liberalism initiated by Hobbes and Locke. Although Rousseau may not have had a large direct influence on American political institutions, he has a kinship with certain important dissident or subdominant strains in American political thought, such as the Anti-Federalists and our contemporary communitarians. To the extent that these elements of our political culture are worth taking seriously, Rousseau's greater depth of thought may help us to understand them better, and perhaps better than they have understood themselves. After examining the theoretical critique offered in Rousseau's most openly philosophic work, the Discourse on Inequality, the paper argues that the Social Contract is not so much an effort to establish the true basis of political legitimacy as it is an effort to show why and how legitimacy is an inadequate criterion for evaluating political institutions. The theoretical issue involving the legitimacy of representative legislatures illustrates Rousseau's approach. A careful examination of the Social Contract's presentation of the "general will," and of its apparently unqualified condemnation of all representative legislatures, suggests that this condemnation is deliberately overstated. That conclusion is confirmed by Considerations on the Government of Poland, which accepts the necessity of representative legislatures in large states and suggests techniques for reconciling that necessity with the genuine principles of the Social Contract, which do indeed imply a certain kind of superiority of direct democracy over representative legislatures. The paper then turns to the Term Limits decision of the U.S. Supreme Court. The Court's decision, in addition to being legally wrong, appears to have been a particularly dangerous decision when viewed in light of Rousseau's political science. The paper concludes with a brief discussion of Rousseau's analysis of institutions like our Supreme Court. Rousseau's analysis suggests that we should consider significant changes, such as abolishing life tenure and putting a stop to the use of stare decisis in constitutional cases.

Conference Announcement: Law, Ethics, and Affirmative Action
    LAW, ETHICS, AND AFFIRMATIVE ACTION IN AMERICA October 7, 2003 University of Cincinnati College of Law PROGRAM: 9:00 - 9:45 a.m. Keynote Speaker: Ronald Dworkin, Professor, NYU and University College 9:45 - 10:00 a.m. Marvin Krislov, Vice President & General Counsel, University of Michigan 10:00 - 10:15 a.m. Break 10:15 - 10:30 a.m. Kirk O. Kolbo, Partner, Maslon Edelman Borman & Brand, LLP 10:30 - 10:45 a.m. Robert B. Westmoreland, Associate Professor of Philosophy, University of Mississippi 10:45 - 11:00 a.m. Verna L. Williams, Assistant Professor of Law, University of Cincinnati 11:00 - 11:15 a.m. Ronald Dworkin 11:15 - 11:45 a.m. Question & Answer Period On June 23, 2003, the United States Supreme Court decided two landmark cases on affirmative action, Grutter v. Bollinger and Gratz v. Bollinger. In both decisions, the Court resoundingly endorsed the use of racial differences in university admission policies. Justice Sandra Day O'Connor, writing for the majority in Grutter, said, "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." While the Court unmistakably upheld the practice of affirmative action, it simultaneously struck down the specific implementation of this policy at the University of Michigan's undergraduate college but validated the admissions policy at Michigan's Law School. The decisions in Grutter and Gratz have perhaps raised as many questions as they resolved. In response to these watershed cases, and the ensuing difficulties, the University of Cincinnati College of Law and the University of Cincinnati Law Review sponsor this symposium "Law, Ethics, and Affirmative Action in America." The event brings together prominent commentators on affirmative action and the principal attorneys in the litigation who opposed each other all the way to the Supreme Court. FURTHER INFORMATION: For further information, please contact: CONTACT: Peggy Ramey Tel: (513) 556-0063 or visit:

Monday, September 22, 2003
How Much Is Enough?
    Over at Crooked Timber, Chris Bertram has a post entitled Inequality, sufficiency and health. Chris writes:
      I’ve been working for a while on a paper that argues for a “sufficientarian” criterion for the problem of global justice. Sufficientarianism (horrible word) is the notion that what matters, normatively speaking, is not the the pattern of distribution of whatever currency we think is important (welfare, resources, capabilities, whatever…) but that everyone gets beyond a certain threshold. Not that inequality of income, say, ceases to be important because once we focus on the dimension in which we want people to achieve sufficiency it often turns out that distributive patterns impact on their ability to meet the relevant threshold.
    Highly recommended!
    And check out this paper by Richard Arneson.

The Claim Preclusion Issue in the Recall Case Update: Go here for the latest developments.
    I listened to a fair amount of the oral argument in the En Banc rehearing of the recall case earlier this afternoon. In a prior post, I argued that the claim in Southwest Voter Registration Educ. Project v. Shelley is identical to the claim in Common Cause I and that there real question was whether the plaintiffs in the prior law suit can bind the NAACP, which is is a plaintiff in Shelley but not in the prior litigation. Claim preclusion (or res judicata as it is often called) is the legal doctrine that prevents a party from bringing the same claim (or cause of action) more than once. The core idea of claim preclusion is that you get only one bite at the apple. In general, every individual gets their own bite. If someone else took a bite at the apple, that doesn't preclude you from taking your own bite. Shelley is the NAACP's first bite at the apple.
    There is, however, an exception to the rule that each party gets it own day in court. That exception goes under the somewhat mysterious label virtual representation. The idea would be that the plaintiffs in Common Cause I vitually represented the plaintiffs in Shelley.
    The questioning on that issue focused on a prior en banc decision of the Ninth Circuit, Green v. City of Tucson, 255 F.3d 1086 (9th Cir. 2001). Green is not really on point, but it suggests a very narrow approach to virtual representation, and a little bit of investigation reveals that the prior Ninth Circuit case law on virtual representation is consonant with the narrow approach. For example, in U.S. v. Geophysical Corp. of Alaska, 732 F.2d 693 (1984), the Court said:
      A finding of virtual representation may be based on an express or implied legal relationship that makes a party to the prior action accountable to a non-party.
    On the facts of Shelley, I don't think there is any basis for saying that the plaintiffs in Common Cause I were accountable to the NAACP. Based on prior Ninth Circuit case law, it seems to me that the defendant's virtual-representation argument and hence its claim-preclusion defense should fail.

The New York Times on Copynorms I've been arguing that the RIAA's litigation offensive is not likely to cause a shift in copynorms, the informal social attitudes towards copyright violation that are crucial to a substantial change in the use of P2P programs to make unlawful copies of MP3 files. Courtesy of Crescat Sententia, the New York Times has a report regarding polling data that supports this conclusion:
    The sweeping legal campaign appears to be educating some file swappers who did not think they were breaking the law and scaring some of those who did. But the barrage of lawsuits has also highlighted a stark break between the legal status of file sharing in the United States and the apparent cultural consensus on its morality. In a New York Times/CBS News poll conducted this week, only 36 percent of those responding said file swapping was never acceptable. That helps explain why the pop radio hit "Right Thurr," by Chingy, was available to download free from 3.5 million American personal computers last week, while two million file swappers in the United States shared songs from rock icons like the Beatles and the Rolling Stones, according to the tracking company Big Champagne. The persistent lack of guilt over online copying suggests that the record industry's antipiracy campaign, billed as a last-ditch effort to reverse a protracted sales slump, is only the beginning of the difficult process of persuading large numbers of people to buy music again. Mitch Bainwol, the new chairman of the Recording Industry Association of America, which brought the suits, said in an interview that the group had succeeded in communicating that file sharing is illegal and would have consequences. But he acknowledged that shifting attitudes would be the next battle in what he conceded was more an effort to contain file swapping than to wipe it out.
I was particularly interested in the following passage:
    At the root of the resistance for many — besides a perhaps decisive fondness for getting things free — is a complaint that the record industry is trying to take away the ability to make copies of music to use personally and to share with friends — a practice that Americans have long enjoyed.
In this regard, it is important to remember that music sharing predates P2P programs. Think about the movie High Fidelity and its use of the compilation tape as a central plot device. In this regard, it is important to remember that choice that the music industry made when it negotiated the Audio Home Recording Act (AHRA), the legal response to Digital Audito Tape (DAT) recorders. The advent of DAT created a very mild version of P2P. DAT tapes were digital and hence did not lose fidelity when copies. The AHRA required DAT recorders to have built-in technological safeguards that prevented multigenerational copying of DAT tapes, but in return the industry agreed to a provision that essentially legalized the making of analog tapes. The compilation tape was "decriminalized." (The industry insists the the immunity from liability is not the same as "legalization.") By legalizing analog taping, the music industry itself fueled the social norm that permits copying and sharing of music. When new technologies made such copying easier, faster, and cheaper, the practice exploded. But the norm was already in place, and in a context that seems relevant similar, the law supported the norm.
For my prior posts on copynorms, start here.

Weekend Wrap Up Over the weekend, four regular features are posted on Legal Theory Blog. On Saturday, I posted the Download of the Week and the Legal Theory Bookworm. On Sunday, the Legal Theory Calendar and the Legal Theory Lexicon. Click on the links or scroll down for the posts.

Welcome to the Blogosphere To Michael Froomkin, a superstar of cyberlaw, who has begun the aptly named Dicourse.Net. Watch this one!

Richard Garnett at the University of San Diego At the University of San Diego Faculty Colloquium Series, Richard Garnett presents Religion, Division, and the First Amendment.

Ned Foley on Narrow Tailoring and Overbreadth Edward Foley (Ohio State University College of Law) has posted 'Narrow Tailoring' Is Not the Opposite of 'Overbreadth': Defending BCRA's Definition of 'Electioneering Communications' (forthcoming Election Law Journal, Vol. 2, No. 4, 2003) on SSRN. Here is the abstract:
    This article defends the primary definition of "electioneering communication" that Congress recently adopted in the Bipartisan Campaign Reform Act, commonly known as BCRA or McCain-Feingold, and which is currently before the U.S. Supreme Court (oral argument heard on Sept. 8, 2003). The article makes two points, either of which suffices to sustain the primary definition's constitutionality against the claim that it is "substantially overbroad." First, the article argues that the primary definition is valid in all its applications and, therefore, the "substantial overbreadth" doctrine, which compares the extent of a statute's invalid coverage in relation to its valid scope, is inapposite. Second, the article contends that, even if the definition has some invalid applications, the extent of its invalid coverage is significantly smaller than what has been asserted by either the plaintiffs or the district court in the BCRA litigation. In support of the first point, which is the main one, the article explains why the definition, with respect to all its applications, is narrowly tailored to achieve two combined goals simultaneously: (1) clarity of the definition's coverage, and (2) efficacy of the regulations that use this definition to determine their scope. The article discusses the relevant U.S. Supreme Court precedents that support the constitutionality of legislation designed to achieve both clarity and efficacy at the same time. The article further explains that, to determine whether a particular communication within the definition implicates the goal of regulatory efficacy, it is necessary to consider the communication's potential electoral effects as well as its motivation. Once the potential electoral effects of communications are considered, the range of communications within the definition that do not implicate the goal of regulatory efficacy – and thus must be justified under "narrow tailoring" analysis by the simultaneous goal of definitional clarity - diminishes significantly.

Judge Wiley on LIberty and Insanity at UCLA At UCLA Law School's colloquium series, Judge John Wiley presents Liberty and Insanity.

New Papers on the Net Here is the roundup:
    Did John Serrano Vote for Proposition 13? A Reply to Stark and Zasloff's 'Tiebout and Tax Revolts: Did Serrano Really Cause Proposition 13?' William Fischel Dartmouth College - Department of Economics Abstract:
      I argued that California's school-finance decision, Serrano v. Priest, which required equalized school spending, caused Proposition 13, which decimated property taxes in 1978. Kirk Stark and Jonathan Zasloff offer evidence to the contrary in a paper published in 50 UCLA Law Rev. 801 (2003). They found that school districts with larger proportions of high-income and elderly voters, not those with high tax-base per pupil, accounted for the dramatic vote swing from a defeated 1972 property-tax-limitation initiative to the successful 1978 vote. I show that their results are entirely consistent with my hypothesis. The Serrano decision undermined support of the local property-tax system by residents of high-income school districts because it insisted that all districts spend the same amount per pupil. Serrano especially alienated older homeowners of the better districts, who had formerly tolerated high levels of school taxation and spending because it enhanced the sale value of their homes. I also parry Stark and Zasloff's claims that institutional problems, rather than Serrano-compliance, forestalled the legislature's response to the tax revolt. Narrative evidence shows that the 1977-78 California legislature had committed so much of its budget to responding to Serrano that it did not have enough funds to respond to the 1978 property-tax revolt. The nature of the Serrano decision, which insisted on both spending equalization and tax-base sharing, made it impossible for the legislatures to revisit the costly school-finance bill once it appeared that Proposition 13 had a good chance of passing. The article's title refers to my discovery that the named plaintiff, John Serrano, Jr., was a suburban resident who had actually been well served by the California public school system and was demographically similar to supporters of Proposition 13. After discovering that the "property-rich" Los Angeles Unified School District was inadequate for his bright children, Mr. Serrano moved his family to a better, though "property poor," school district, where his children did well in school. Serrano was a middle-class, college-educated social worker. Although the lawyers who fostered the case regarded it as a logical continuation of Brown v. Board of Education and its subsequent busing remedies, Serrano himself was anti-busing. He was a named sponsor of an anti-busing initiative that was passed in 1979. It was, ironically enough, eventually overturned by the courts.
    Proposal for a Model State Watershed Management Act Environmental Law, 2003 John Ruhl, Christopher Lant, Tim Loftus, Steven Kraft, Jane Adams and Leslie Duram Florida State University College of Law , Southern Illinois University at Carbondale - Department of Georgraphy , Heidelberg College Water Quality Laboratory , Southern Illinois University at Carbondale - Agribusiness Economics , Southern Illinois University at Carbondale - Anthropology Department and Southern Illinois University at Carbondale - Geography Department Abstract:
      During the Montana Constitutional Convention of 1889, John Wesley Powell, envisioning a landscape of "watershed commonwealths," proposed that Montana adopt watersheds as the boundaries of its counties. The idea did not catch on. Over time, the power of local governments to regulate land use has grown immensely, but the misfit between their political boundaries and environmental policy "problemsheds" has persisted. As our understanding of ecosystem dynamics improves, however, natural resources management policy is gravitating, once again, to the watershed as an appropriate unit of governance. Many federal and state natural resource management initiatives have come on line in the past five years using watersheds as their primary focus. Yet, these new programs lack coherence and invest inadequate authority in watershed-based units of government. Representing perspectives from law, geography, economics, and anthropology, the authors propose the framweork for a model state watershed management law. They conclude that the federal government is ill-equiped to take on the role of comprehensive watershed management czar as it has for pollution control and other environmental programs. Yet, local governments, even if organized around watershed boundaries, are unlikely to provide the platform for effective policy implementation. Rather, the authors propose a multi-tiered governance system linking state, regional, and local units of government through careful distribution of planning responsiblities and policy implementation authorities. Although for many states this framework would introduce a new "layer" of governance, its superior correspondence to the inescapable realities of ecosystem dynamics makes it worth serious consideration.
    Collapsing Corporate Structures: Resolving the Tension Between Form and Substance Steven Schwarcz Duke University School of Law Abstract:
      This article engages a fundamental question of corporate law: when is a corporate structure legitimate, and when should it be collapsed? Although this question arises in many contexts (such as substantive consolidation, piercing the corporate veil, and collapsing leveraged buyout transactions), it is becoming most urgent in the context of widespread but increasingly complex structured finance transactions, which often utilize multiple corporate entities as part of the overall structure. Judges and scholars have attempted to answer this question in isolated doctrinal contexts, but they have not seen the question as cutting across doctrines or attempted to formulate rules of general application, much less an overall theory from which to derive such rules. This failure leaves the law with unsettling ad hocery, which in turn creates uncertainty, inconsistency, and inefficiency on multiple levels. My article attempts to answer this question by synthesizing existing doctrine, applying economic and contract theory to the synthesis, and then testing the result against actual examples. The answer not only helps to explain and harmonize existing doctrine but also provides a conceptual framework for developing future judicial doctrine and legislative initiatives.
    The Market for Intellectual Property: The Case of Complementary Oligopoly THE ECONOMICS OF COPYRIGHT: DEVELOPMENTS IN RESEARCH AND ANALYSIS, W. Gordon and R. Watt, eds., Elgar Publishing, 2003 Francesco Parisi and Ben Depoorter George Mason University School of Law and Yale University - Law School Abstract:
      This paper applies a model of complementary oligopoly and anticommons pricing to the market for intellectual property rights. Our model demonstrates a surprising and interesting overlooked result: In the market for complementary goods, price coordination and monopolistic pricing do not necessarily represent inefficient equilibria, when compared to the alternative Nash equilibrium. Due to the peculiar cross-price effects in the supply of complementary goods, price coordination and monopolistic supply often constitute an improvement over the alternative equilibrium outcomes. To be precise, the welfare effects of competition and price coordination depend on the nature of the intellectual product concerned. This has significant and obvious implications for the economic analysis of copyright collectivization, as well as for antitrust regulation in this area.
    Tax as Gatekeeper: Why Company Stock is Not Worth the Money Virginia Tax Review, Vol. 23, Fall 2003 Maureen Cavanaugh Washington and Lee University - School of Law Abstract:
      Tax as Gatekeeper: Why Company Stock is Not Worth the Money addresses a topic that has captured the attention of most Americans, in addition to politicians and academics: will those of us participating in the current tax subsidized retirement system be able to retire? Increasingly retirement is being postponed because savings are inadequate for retirement. Employees today are seeing the results of popular retirement plans based on saving and investing current compensation in order to allow for future retirement. The success of our current tax subsidized retirement policy is, therefore, important to all of us, whether working or about to retire. Recent corporate scandals and the general stock market decline have focused our attention on the large number of tax qualified retirement plans whose assets consist chiefly of company stock, that is the corporate stock of the very corporation by which these individuals are employed. Enron's spectacular and catastrophic decline vividly illustrates the danger of these investments since many individuals lost not only current employment but all their retirement assets when their company stock became worthless; unfortunately Enron is not an isolated example. Individual ignorance of basic principles of investing is usually cited as the problem: after all, these employees invested in the company for which they worked believing in its success. Calls for legislative regulation to prevent further Enron-type debacles have however garnered very little support. The reason for this is that most individuals value autonomy, especially when making decisions that involve employment and retirement; current and deferred consumption; saving and investing. Employers also prefer these popular and less heavily regulated retirement plans (including 401(k) plans), plans that allow them to shift to their employees the risk for accumulating adequate retirement assets. Given the popularity of 401(k) plans and preference for individual autonomy, is there a solution to the problem posed by company stock's riskiness? Some have even argued that company stock's inherent riskiness is justified by its potential greater return. This Article argues that company stock is not worth the money and individual ignorance of basic principles of prudent investing has been incorrectly identified as the problem. In fact, individuals who invest in company stock are acting predictably according to behavioral economics (whether because of simplifying heuristics or excessive extrapolation). This article identifies the real problem: tax incentives that encourage employers to contribute non-transferable company stock to these plans thereby providing endorsement for company stock. Current tax rules allow corporations tax benefits far in excess of that realized by individual employees whose adequate savings at retirement is putatively the goal of this very expensive tax subsidy. By applying these current rules to companies whose assets are heavily concentrated in company stock and using readily available stock information, this article graphically shows that company stock is not worth the money: only corporations gain the full value of the current fair market deduction. Employees bear all the risk of loss and enjoy no potential for gain during the period of restriction, often their entire careers. In short, corporations use extremely favorable tax rules applicable to these plans to shift the risk for retirement to employees whose autonomy is effectively comprised by corporations' contribution of legally non-transferable stock. In addition, these rules allow corporations to engage in tax arbitrage, gaining a current tax advantage based on the stocks' (possibly temporary?) high price while making this same stock appreciation unavailable to employees. While Congress debates whether to impose more unnecessary regulation or encourage ineffective investor education, amending the tax rules to reinforce retirement policy would provide an efficient mechanism and a solution more in keeping with desire for individual autonomy. Eliminating inefficient and expensive perverse tax incentives would bring other advantages. Most troubling in this debate is the failure of those proposing solutions to identify the role of tax rules. These rules encourage employer plan design resulting in significant concentrations of company stock that employees interpret as government endorsement by tax subsidy of the very investment identified as a problem. Blaming the victim, policy makers are unable to arrive at a solution because they have incorrectly identified the problem. This article proposes that we begin by recognizing tax rules as a matter of first-order importance to the entire tax induced, employer-provided retirement system. We can then amend the tax provisions producing not only incoherent retirement but incoherent tax policy. In this way, tax can be used as an efficient gatekeeper to promote good retirement policy while allowing individual autonomy.
    The Battle for Engangered Species Act Methodology Environmental Law, September 2003 John Ruhl Florida State University College of Law Abstract:
      The substantive contours of the Endangered Species Act (ESA) have been largely worked out for quite some time. Starting in the mid-1990s, however, opponents of Fish and Wildlife Service and National Marine Fisheries Service decisions from both the industry and the environmental group corners realized that the methodological contours of the ESA were not nearly as settled as their substantive kin. Thus a frenzy of ESA methodology debate materialized in the late 1990s and has been going strong since then, reflecting the realization industry and environmental interests must have made—that how these methodological rules get worked out could revolutionize the ESA for decades to come. This Article explores the breadth and depth of the ensuing battle over ESA methodology. It begins by laying out a framework for evaluating decisionmaking methodologies. One basis on which we might choose how to go about making decisions is what level of confidence we wish decisions to enjoy. Also, how we frame the hypotheses to be tested will influence who favors which methodology. And methodology selection also has much to do with aversion to mistaken conclusions about whether the hypothesis is true. Because methodology selection depends so much on how hypotheses are stated and the risk aversion bias of different interest groups, the Article next provides some background on the ESA and its numerous decisionmaking nodes — the points at which a choice among the three methodologies must be made using one or more of the frameworks discussed above. Three features of the ESA make its decisionmaking context particularly susceptible to fights over methodology. First, many decisions the agencies must make involve questions of biological science for which the available scientific database is either sparse or inconclusive. Second, these biological evaluations often arise in legal contexts that present a poor fit between science and policy. Finally, ESA decisions are characterized by the intense involvement of viciously combative interest groups willing to sue each other and the agencies with what appears to be gleeful abandon. Where the opportunity presents itself to shape ESA methodology, the opposed interest groups seem happy to litigate to a pitched battle in short order. Next the Article frames and assesses the battle positions, which fall into three competing methodological camps I call the Professional Judgment Method, which is the default rule for the ESA, and its two postulated alternatives, the Scientific Method and the Precautionary Principle Method. These three methodologies incorporate starkly different approaches to management of risk relating to species conservation. Yet, close examination reveals neither of the postulated alternatives to the Professional Judgment Method finds support in the statutory framework of the ESA. Nevertheless, there are times when the Scientific Method and the Precautionary Principle Method have a role to play under the ESA, sometimes even hand-in-hand. The challenge is to design a framework that both gives them a role and keeps them under control. The final section of the Article outlines a proposal to create a procedure under which FWS and NMFS could elect to adopt the precautionary principle in discrete decisionmaking instances based on a finding that a significant risk of error with severe consequences exists in connection with a decision not to extend protection to a species. Any interested person could then require the agency to obtain a rigorous scientific peer review of the basis for the agency's decision as means of checking against irrational precaution. Conversely, the proposal would also establish a process under which any interested person could petition a standing committee of scientists to decide whether require a scientific peer review upon finding that the agency may have failed to elect the precautionary principle when it should have under reasonable precautionary guidelines. To guard against overuse of either procedure, the results and findings of the peer review would be entitled to great deference in any judicial review proceeding of the agency's final decision. This would leave the Professional Judgment Method in its appropriate position as the default methodology for ESA decisions, but allow the Scientific Method and Precautionary Principle Method a role in difficult cases.
    Measuring Recovery for Non-Contractual Investment Omri Ben-Shahar and Robert Mikos University of Michigan Law School and University of Michigan Law School Abstract:
      Parties who make investments that generate externalities may sometimes recover from the beneficiaries, even in the absence of contract. Previous scholarship has shown that granting recovery, based on either the cost of the investment or the benefit it confers, can provide optimal incentives to invest. However, this article demonstrates that the law often awards recovery that is neither purely cost-based, nor purely benefit-based, and instead equals either the greater-of or lesser-of the two measures. These hybrid approaches to recovery distort incentives to invest. The article demonstrates the prevalence of these practices, and explores informational and related reasons why they emerge. It argues that they generally are ill-suited to promote rational policies.
    Judicial Errors and the Functioning of Tort Liability Giuseppe Mattiacci Utrecht School of Economics Abstract:
      The correct functioning of liability may be plagued by error in determining damages and in setting due care. This paper revises the literature on the topic and makes a distinction between those situations in which these two types of errors occur irrespective of each other and those in which they occur jointly. Three liability rules are considered: strict liability, the standard version of simple negligence without causation rule and the Grady-Kahan model of simple negligence with causation rule. It is shown that these liability rules perform differently only if the two types of errors occur separately. If they occur jointly, all liability rules yield the same equilibrium level of precaution.
    The Illusory Protections of the Poison Pill Notre Dame Law Review, Vol. 78, No. 4, 2003 William Carney and Leonard Silverstein Emory University School of Law and McKenna, Long & Aldridge, LLP Abstract:
      This paper describes the operation of the standard preferred stock rights plan with a flip-in feature. Rather than a static look at the initial dilution of a bidder's investment when the flip-in rights become exercisable, we examine a dynamic model, where the bidder then proceeds to acquire the remaining shares of the target corporation in a hostile acquisition. We find surprisingly modest levels of dilution from the standard rights plan, amounting to less than 10% of the total value of the target. This modest dilution is primarily a function of the fact that rights provide a one-time dilution when a bidder's investment in the target is relatively modest - no more than 15% of its stock in most cases. While rights plans can destroy part of this value, they generally do not destroy it all. We explore the reasons for the limits of such plans, and the reasons why no one has deliberately swallowed a pill.
    Reconstructing the Blaine Amendments First Amendment Law Review, Vol. 1, Forthcoming Frederick Gedicks Brigham Young University - J. Reuben Clark Law School Abstract:
      In the wake of the Supreme Court's decision upholding school vouchers in Zelman v. Simmons-Harris, school choice proponents have turned their attention to the state Blaine Amendments. Blaine Amendments are contained in 37 state constitutions, and are modeled after a failed federal constitutional amendment sponsored by James G. Blaine in 1876 that would have prohibited the states from allocating state funds and other resources to "sectarian" organizations. Thus, even though Zelman appears to have removed all federal Establishment Clause impediments to properly structured school choice programs, Blaine Amendments continue to stand in the way of such programs. The validity of the Blaine Amendments as currently enacted is doubtful. Blaine's federal amendment and the state amendments it inspired were largely motivated by anti-immigrant and (in particular) anti-Catholic sentiment. In addition, the Amendments by their terms impose special burdens on religious schools in the distribution of state funds and other financial aid to education. Both characteristics generally trigger heightened judicial scrutiny. Nevertheless, important constitutional questions would remain even if most of the Blaine Amendments are struck down. Though they were originally motivated by antiCatholic hostility, the Blaine Amendments were also early manifestations of an ideology of church-state separation which remains well within the constitutional mainstream. Thus, even if the Blaine Amendments are struck down, separationist sentiment in many states is likely to stimulate exploration of alternative means of restricting the allocation of state education funds to religious schools, such as requiring that all private schools participating in school choice programs meet secular requirements, such as antidiscrimination laws, as a condition to such participation. Such conditions would raise questions about the meaning and scope of the "neutrality" that now appears to have become the dominant doctrinal concept in Religion Clause jurisprudence. I argue that neutrality prevents government from conditioning the receipt of social welfare benefits on religious affiliation (or lack thereof), but should not generally prevent government from imposing secular conditions on such receipt. I close with a brief discussion of issues raised by three likely conditions that states would attach to a religious school's participation in school choice programs: the school's compliance with antidiscrimination laws, its satisfaction of curriculum and other state educational mandates, and its condemnation or advocacy of certain ideas.
    Credit, Wages and Bankruptcy Laws Bruno Biais and Thomas Mariotti Université de Toulouse I - Department of Economics and Université de Toulouse I - ARQADE Abstract:
      We study the impact of different bankruptcy laws in general equilibrium, taking into account the interactions between the credit and labour markets, as well as wealth heterogeneity. Soft bankruptcy laws often preclude liquidation, to avoid ex-post inefficiencies. This worsens credit rationing, depresses investment and reduces aggregate leverage. Yet, tough laws do not necessarily maximize social welfare or emerge from the legislative process. Relatively rich agents can invest irrespective of the law. They favour soft laws that exclude poorer entrepreneurs from the market and thus reduce labour demand and wages. This raises the pledgeable income of the entrepreneurs who still can raise funds, and thus lowers their liquidation rates and the associated inefficiencies. Hence, a soft law can maximize social welfare.
    A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause Georgia Law Review, Vol. 38, No. 2, 2003 Frank Ravitch Michigan State University-DCL College of Law Here is the abstract:
      In recent years the landscape of Establishment Clause jurisprudence has changed dramatically. Landmark decisions such as Zelman v. Simmons-Harris, have placed significant emphasis on the concept of neutrality, specifically formal neutrality. Yet claims of neutrality can not be proven. There is no independent neutral truth or baseline to which they can be tethered. This article addresses the inherent problems with the principle of neutrality in Establishment Clause cases. The principle sounds good in theory, but since there is no neutral baseline from which we can gauge claims of neutrality, it is an empty concept. Yet, the Court has been increasingly gravitating toward neutrality, specifically formal neutrality, as the centerpiece of its Establishment Clause doctrine. While this shift has not taken place in every context to which the Establishment Clause can be applied, it has become dominant in government aid and equal access cases. This move is dangerous not because of its results, but because the Court has gone from using neutrality as a broad and vague principle that needs other principles such as separation or accommodation in order to function, to both the means and ends of Establishment Clause analysis. As an alternative to neutrality (and other broad principles), this article recommends looking beneath broad principles to narrower ones, which may be applied separately or in tandem to issues under the Establishment Clause. Relying on Douglas Laycock's concept of substantive neutrality, divorced from any claim to neutrality, the article proposes a test that is focused upon whether government activity facilitates or discourages religion. The test is not formalistic like the current Court's formal neutrality approach, but it is better able to address the highly complex and contextually bound issues that arise under the Establishment Clause.
    What is Property? Putting the Pieces Back Together Arizona Law Review, Vol. 45, p. 371, 2003 Adam Mossoff Michigan State University-DCL College of Law Abstract:
      This article offers an alternative to twentieth-century theories of property, which have eviscerated the concept of property and thereby undermined the policy foundations of property doctrines ranging from eminent domain to intellectual property. The result is that legislators and judges lack the ability to define properly the purpose or the boundaries of the legal doctrines that they are enacting into law or ruling on from the bench. The complaints are omnipresent - from the expansion of legal entitlements afforded to owners of intellectual property to the indeterminacy that plagues the takings jurisprudence. As a solution, this article advances an "integrated" theory that combines the exclusive rights to acquire, use and dispose of one's possessions into a broad concept of property. The integrated theory of property provides a descriptive account of past and present property doctrines, and justifies or critiques the evolution of these doctrines into the twenty-first century.
    The Takings Clause As A Comparative Right John E. Fee 76 Southern California Law Review #5 (2003). Abstract:
      The regulatory takings doctrine continues to bewilder courts and scholars. The root of the problem is this: We ignore the relationship among owners and assume that the Takings Clause protects something absolute in each owner, or at least represents a balance between the government’s regulatory interests and an owner’s economic position. The regulatory takings doctrine is not a shield or an insurance policy. It is a web. Under the theory I have described, a regulation is not a taking if it is generally applicable throughout an entire jurisdiction, or if it applies to a group of owners who are specially benefited by the regulation. A regulation imposed on a discrete class of owners solely for the benefit of a larger class, however, is a taking of private property and requires compensation. This theory is consistent with history and the law of special assessments, and it explains at least a large portion of modern takings law. As a comparative right, the Takings Clause is closely related to the Equal Protection Clause. But unlike the doctrine of equal protection, the role of the Takings Clause is not to invalidate illegitimate government action. The Equal Protection Clause prohibits discrimination among owners that is arbitrary and unjustified. The remedy is invalidation of the government action. By contrast, the Takings Clause is designed to address cases where government discrimination among property owners is justified on the basis of the broader pubic interest, but nevertheless disserves the interests of those who are singled out. The remedy is just compensation.
Additional papers of interest:

Sunday, September 21, 2003
Legal Theory Lexicon: The Coase Theorem
    This is the second installment in the Legal Theory Lexicon, an experimental Sunday feature of Legal Theory Blog primarily aimed at law students. Each week I introduce a basic concept or idea in legal theory. This week the idea is the Coase theorem. Ronald Coase is a member of the law and economics faculties at the University of Chicago and a winner of the Nobel Prize in Economics. The idea that we call the Coase Theorem was advanced in a very famous paper:
      Coase, R.H. , The Problem of Social Cost, Journal of Law and Economics 3, 1-44 (1960).
    To understand the Coase theorem, we first need to introduce another idea, the externality. Roughly speaking, an economic externality is cost imposed by an activity that is not accrued by the person or firm who engages in the activity. That's a mouthful. Here's an example:
      The Reading Railroad has track that goes by Farmer Jones's farm. The locomotives cast off sparks that cause a fire that damages Farmer Jones's crop, imposing a cost on Jones of $100. That ocst is an externality.
    If the Reading Railroad owned the farm, then it would bear the cost, and there wouldn't be an externality. Before Coase, we thought that the existence of externalities justified some kind of government intervention. For example, we could create a liability rule that required the Reading Railroad to pay for the damage to his crops. Without a liability rule, the railroad wouldn't have any incentive to prevent the damage if there was a cost-effective means of doing so. Let's add a fact to our hypothetical:
      The Reading Railroad can purchase and install a 100% effective spark arrestor for $50.
    We want the railroad to install the spark arrestor for $50 to prevent $100 worth of damage. Before Coase, we said, "internalize the external diseconomies!" Really! That is, use tort law to transform the external cost imposed by the railroad into an internal cost.
    This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up.
    Coase said, "Let's assume zero transaction costs!" Okey dokey, what next! If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:
      Assuming zero transaction costs, it doesn't matter whether the law assigns the right to generate sparks to the railroad or the right to be free from sparks to the farmer. Why not? Let's work it out. There are two possibilities:
        If we assign the entitlement to the farmer, the railroad will pay $100 in damages to the farmer for vioalting the farmer's right to be spark free. The railroad will realize that it can save this $100 cost by investing $50 in a spark arrestor. So the railroad will buy the spark arrestor.
        If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal.
      That's it! It doesn't matter whether we assign the right to the farmer or the railroad. Either way, we get the efficient outcome.
    If you are a first year law student, the Coase theorem is a very powerful analytic tool for understanding the economics of tort law. When you study a new rule or problem, ask yourself, "How would this come out assuming zero transaction costs?" Then ask, "If we assume positive transaction costs, how does the problem change?"
    One word of warning, the zero-transaction-costs assumption is just an assumption. In the real world, there are always (or almost always) transaction costs. Nonetheless, in some situations, transactions costs are sufficiently low so that the efficient bargain can be struck. In other situations, this is not the case. That's where the action is!
    Links And for prior (and future installments) of the Legal Theory Lexicon, go here.

Legal Theory Calendar

Better Late than Never Department On September 18 at Colloquium in Legal, Political and Social Philosophy (Nagel and Dworkin), Lewis Kornhauser (NYU School of Law) presented Governance Structures, Legal Systems and the Concept of Law.

Is the Liberation of Iraq Contrary to Law? Sean Murphy (The George Washington University Law School) has posted Assessing the Legality of Invading Iraq (forthcoming Georgetown Law Journal, Vol. 92, No. 4, 2004) on SSRN. Here is the abstract:
    The recent invasion of Iraq challenges a cornerstone of contemporary international law: the prohibition on the use of force by one state against another state. The conventional wisdom is that the United States embarked on the invasion with little regard for international law or for the attitudes reflected by other nations, including the other members of the UN Security Council. This article disputes that conventional wisdom. First, the Bush administration could have ignored international law and the Security Council, but in fact deployed a fairly sophisticated legal theory as to why U.S. actions were permissible under international law, a theory that entailed the use of prior Security Council resolutions in combination with the concept of material breach. The article examines that theory in detail and finds that the Bush administration theory is plausible but unpersuasive. Second, given that the United States invaded Iraq using an unpersuasive legal theory, this article considers whether international law can be said to have had any real influence on the United States at all. In other words, did the United States deploy its legal theory simply as a cover for action it intended to take all along, or did international law play a role in the decision-making process? The article suggests that international law played a role at various points in the decision-making process: within the executive branch, within the congress and public opinion, and in the attitudes of foreign states that were important to the success of the U.S. action. The article concludes that international law is not well-placed to prevent a major power, such as the United States, from embarking on action deemed central to its national security, but contends that - in the case of the invasion of Iraq - international law played a central role in setting the terms of the discourse within and among states and providing a key forum for the development of global community expectations.

Khanna on Corporate Crime Vikramaditya Khanna (Boston University School of Law) has posted Corporate Crime Legislation: A Political Economy Analysis on SSRN. Here is the abstract:
    Corporate crime has once again become an important issue on the U.S. legislative agenda leading Congress and the various regulatory bodies to tighten the law and enhance honesty and completeness in disclosure. However, the continued and rather explosive growth of corporate crime legislation leaves one with a rather strange puzzle: how can such a state of the world arise? After all, corporations and business interests are considered some of the most, if not the most, powerful and effective lobbyists in the country. Yet, we witness the continued expansion of legislation that criminalizes their behavior (one estimate suggests over 300,000 federal regulatory offenses that can be prosecuted criminally). How could this have happened? This paper sets out to answer this puzzle. An answer is important not only for understanding the political dynamics of current regulation, but also because it provides insights into the effectiveness of our current approach for regulating corporate wrongdoing. Overall, my analysis suggests that most corporate crime legislation arises at times when there is a large public outcry over a series of corporate scandals during or around a downturn in the economy. In such a situation Congress must respond and corporate crime legislation may be the preferred response for some corporate interests. This is because it satisfies the public outcry while imposing relatively low costs on corporate interests, avoiding legislative and judicial responses that are more harmful to their interests, and sometimes helping to deflect criminal liability away from managers and executives and on to corporations. This explains not only the impressive growth of corporate crime legislation, but also leads to some surprising normative conclusions. In particular, it leads to the counter-intuitive result that if one starts with the view that there is under-deterrence of corporate wrongdoing then one would probably prefer to reduce corporate criminal liability and focus more on corporate civil liability and managerial liability.

Saturday, September 20, 2003
More from Hasen Read election-law expert and superblogger Rick Hasen's most recent post on Bush v. Gore. Rick also weighs in on the connection between the recall case and the role of ideology in the selection of judges here. Here's what Rick says:
    The recall, Bush v. Gore, and Miguel Estrada What do these three topics have in common? The connection between the first to is obvious to readers of this blog, but what about the third? Miguel Estrada, of course, is a Washington lawyer who recently withdrew his nomination for a judgeship on the United States Court of Appeals for the D.C. Circuit. He did so in the face of a relentless filibuster by Democrats. Some of those who opposed the filibuster said that it was unfair, and among those who said that, some argued that the ideology of the judge should be irrelevant to the decision whether or not to confirm the judge---the only question should be one of judicial competence, at least on the Court of Appeals. The recall litigation in the Ninth Circuit should end any serious discussion of the irrelevance of ideology to the confirmation process. How is it that most knowlelgeable observers were able to handicap the chances that the three judge panel would reverse the district court in the punch card recall suit? How is it that knowledgeable observers now predict that the three judge court decision will be overturned? Those knowledgeable observers know the ideological leanings of the appellate judges and therefore can extrapolate about how sympathetic these judges are likely to be to the equal protection claims of voters using punch cards, compared to state interests in a speedy recall election. Of course ideology matters, and of course it should be relevant in confirmation decisions of intermediate appellate court judges.
Perhaps I would put a different spin on the same facts. If Rick is right and the Bush v. Gore decision is in fact an example of what Jack Balkin and Sandy Levinson would call "low politics," manipulation of election law to favor one's ideology, then the judges who wrote the decision lacked the virtue of justice. They were unable to put aside their preferences about the outcome of the case and decide on the basis of the law. But what matters here is not ideology per se. Assuming Rick is right, what matters is that these judges had defective characters. Had they possessed the virtue of justice, their ideology would not have dictated thier decision.

Driesen on Formalist Adjudication
    Introduction David Driesen (Syracuse University - College of Law) has posted Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication. Here is the abstract:
      This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern doctrine of standing. Alexander Bickel's influential writing on the "passive virtues" views justiciability doctrines as an aid to wise decision making. Bickel emphasized that the law of standing would provide concrete information about the consequences of laws undergoing judicial review that would contribute to sounder more enduring judgments as to constitutionality. Analysis of the reasons that information regarding injury often has no influence upon the merits of many public law cases casts doubt on justiciability doctrines' capacity to aid wise decision-making. Courts need to adopt a new set of "active virtues", a set of practices governing the framing, consideration, and resolution of the merits of public law cases.
    I was particularly interested in several claims made in this paper--undoubtedly because of my own deep interests in both legal formalism and judicial virtue. The remainder of this post provides my selective reactions to some of Driesen's themes.
    Formalism and Consequences Driesen makes the following claim:
      For a formalist, injuries to litigants in conflict of laws cases should not matter. In its most extreme form, formalism cares not a jot about the consequences of legal decisions, for litigants or anybody else. Rather, formalist judges often believe that the answers to public law questions come from pure textual exegesis. When they do not believe that, they often believe that the intention of the framers of the Constitution provides the correct answers to the questions before them.
    Of course, the terms "formalism" and "formalist" mean different things to different readers--one ought, I think, to define carefully the variety of formalism to which one refers in order to avoid misinterpretation and ambiguity. When I think of contemporary neoformalism in legal theory, Driesen's claim becomes problematic. Yes, it is true that formalists do not believe that legal decisions should be made in order to produce good consequences. But from that premise, it does not follow that "formalism cares not a jot about the consequences of legal decisions." Most obviously, consequences are relevant even to formalists at the remedial stage, and especially if the remedy requested is an injunction. In addition, the consequences that would flow from a decision may, in some cases, be made relevant by the formal rule of law that applies to the case. Finally, and most perhaps most fundamentally, thinking about the consequences of a legal decision is part of the process by which judges identify which rules are relevant to the dispute at hand. Formal rule application is never mechanical. The application of an abstract rule to particular facts always require what we might call "legal vision," the ability to pick out the legally salient features of the particular case. One way in which judges are able to do this involves hypothetical rule application and consequence assessment. By seeing how various rules would affect the situation, judges are able to pick out the legal doctrines that are salient to the case.
    Formalism and Abstraction In another passage, Driesen asserts:
      A formalist approach emphasizes formal legal rules articulated at a high level of abstraction to resolve cases.
    And again, I wonder whether this is correct. Rules are themselves formulated at levels of abstraction. Some rule are highly particularistic. Think about some the workers compensation laws of some states or certain provisions of the Internal Revenue Code. Other rules are formulated at a high level of abstraction. Think of "unreasonable restraint of trade" in the Sherman Act or "equal protection." Wouldn't it be more accurate to say that formalists look to the text of the rule (the statute, the constitutional provision, the line of cases) to determine that level of abstraction?
    Formalism and Textualism And finally consider this claim:
      While formalists often claim that the text of legal documents (such as the constitution) creates the rules they apply, formalist reasoning can sometimes create rules noticeably at odds with text. The leading contemporary example of formalist reasoning departing from text comes from the Court’s sovereign immunity jurisprudence. The text of the 11th Amendment bars diversity suites by a citizen of one state against another state in federal court.
    I must say that I find this assetion to sweepingly general, simplistic, and unfair. First, Driesen commits a simply fallacy--he conflates what judges labeled (by themselves or others) as formalists do with what formalist reasoning leads to. I consider myself an arch-formalist, and for that reason, I find myself highly critical of many of the recent 11th amendment decisions. Second, in this passage, Driesen makes giant leaps without argumentative support. There are plenty of sophisticated formalist reconstructions of the Court's sovereign-immunity jurisprudence. The best of these have cmade it clear that their claims do not rest on the 11th amendment, but are rooted elsewhere in the constitutional text.
    Active Virtues The last section of Driesen's paper sketches a set of "active virtues." In particular, Driesen has three suggestions: (1) the judges in public law cases confine thier decision to briefed issues, (2) that they prefer narrow grounds to broader ones, and (3) that they cultivate humility. Only the third of these is a "virtue" in any distinctive sense of that word. One and two are really "rules of thumbs," and good ones in my opinion. "Humility" as a judicial virtue is an interesting topic. Readers with an interest in pursuing this line of thought should take a look at Suzanna Sherry's paper, "Judges of Character," which is available on Westlaw and at 38 Wake Forest L. Rev. 793 (2003).
    Despite my quibbles, I found Driesen's paper quite interesting. Recommended.

Ideological Voting on the Court of Appeal Cass Sunstein, David Schkade and Lisa Ellman (University of Chicago Law School , University of Texas at Austin - Management Science & Information Systems and University of Chicago - Law School) have uploaded a paper titled Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation on SSRN. Here is the abstract:
    For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.
This is an important paper. I will be commenting on various aspects of the paper over the next several days. In this post, I want to highlight one particular finding that is also underscored (literally) by the authors of the study--the effect on a judge of the orientation of the other members of the panel. Here is a striking quote from the doby of the paper:
    In the great majority of circuits, a judge’s vote is predicted as well or better by the political affiliation of the president who appointed the two other panel members as by the political affiliation of the president who appointed the judge in question.
In other words, the vote of a judge on hot-button, ideological issues is just as likely to be predicted by the party of the President who appointed the other two judges on the panel as it is by the party of the President who appointed the judge whose vote is being predicted. What does this mean? The authors suggest three explanations: (1) the collegial concurrence (it means what you think), (2) group polarization (ditto), and (3) the whisteblower effect. The third phenomenon deserves some further explanation. Here is the relevant passage from the paper:
    Imagine that existing law is not entirely clear, but that fairly applied, it requires one or another outcome. It is easily imaginable that likeminded judges, unaccompanied by a potential dissenter, will fail to apply the law fairly. This is not because they are essentially lawless. It is because when the law is unclear, fallible human beings might well be inclined to understand the law in a way that fits with their predilections.
Download it while its hot!

The Legal Theory Bookworm The great debate in the history of legal theory is the debate between natural law and legal positivism. What the debate about is itself contested, but one convenient way of framing one of its central issues is to speak of a connection between law and morality. For natural law theorists, there is some deep or essential connection between law and justice. For legal positivists, either there is no such connection or it is merely contingent. This week the Legal Theory Bookworm recommends a contemporary classic, John Finnis's (Oxford and Notre Dame) Natural Law and Natural Rights. Finnis's book was published in 1980, and it has played a central role in contemporary debates about the nature of law. Before Finnis's book, classical natural law theory was in philosophical disrepute. The arguments mounted against it by Bentham, H.L.A. Hart, and others were taken to be decisive. Finnis's book decisively rearranged the argumentative landscape. After Finnis, no one could seriously think that natural law theory could only be held by those who philosophically naive or unsophisticated. Here is a passage from early in the book that will give you a flavor of Finnis's style:
    Bentham, Austin, Kelsen,Weber, Hart and Raz all published stern repudiations of what they understood to bee the theory of natural law; and Fuller carefully dissociated himself from that theory in its classical forms. "But the theoretical work off each of these writers was controlled by the adoption, on grounds left inexplicit and inadequately justified, of some practical viewpoint as the standard of relevance and significance in the construction of his descriptive analysis. A sound theory of natural law is one that explicitly, with full awareness of the methodological situation just described, undertakes a critique of practical viewpoints, in order to distinguish the practically unreasonable from the practically reasonable, and thus to differentiate the really important from that which is unimportant or is important only by its opposition to or unreasonable exploitation of the really important. A theory of natural law claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among men and in individual conduct.
Law, Finnis contends, has a focal meaning--a meaning which we can only identify from a perspective that is normatively aware. The focal meaning of law is essentially related to justice and good. If you are interested in the deep questions about law, you must read Finnis's book.
Last week's Legal Theory Bookwormis here and the week before that, here.

Download of the Week This week’s Download of the Week is a paper by Nicole Garnett (Notre Dame) titled Property Regulation and the Public Order. I was at Garnett’s workshop on Friday—both the paper and its defense were very impressive. Here is taste:
    The walls of the Palazzo Pubblico in Siena, Italy are graced with Ambrogio Lorenzetti’s striking frescos contrasting the effects of “good government” and “bad government” on fourteenth century city life. In the city under good government, men work to repair stately buildings, women socialize in the streets, and merchants sell their wares in a busy marketplace. In the city under bad government, the buildings are crumbling, men stand idle (save one crafting weapons), bandits terrorize the innocent, and the bodies of murder victims lie in the streets. The goals of urban policy, it appears, have not changed in over six hundred years.
    Over the past two decades, however, the conventional wisdom about how to achieve those goals in American cities has been turned on its head. After years of attributing the problems of urban decay and disorder to intractable “root causes,” city officials now embrace policies that seek to eliminate these problems directly, rather than tackling their causes. A primary catalyst for this change was the articulation in 1982 of the “broken windows” hypothesis by George Kelling and James Q. Wilson. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory, and to a growing disillusionment with modern policing practices generally, has been a proliferation of policies focusing on public order, such as former-Mayor Rudolph Giuliani’s “quality of life” and “no-tolerance” programs, as well as ubiquitous “community policing” efforts.
There were many fine papers this past week, in addition to Garnett I recommend:Happy downloading!.

Friday, September 19, 2003
More on Intellectual Property Theory Over at the Legal Theory Annex, David Ballantyne has an interesting analysis of the capacious water well.

Netanel at UCLA At UCLA, Neil Netanel (Texas) presents Copyright's Paradox: Property in Expression/Freedom of Expression.

Okin at BU At Boston University's philosophy colloquium, Susan Okin (Stanford University) presents Multiculturalism and Feminism: No Simple Question, No Simple Answers.

Nicole Garnett at the University of San Diego At USD today, Nicole Garnett (Notre Dame) presents Property Regulation and the Public Order.

Barnett at Texas At the University of Texas, Randy Barnett (Boston University) presents Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas.

ANU's Michael Smith at MIT At MIT, Michael Smith (Australian National University) presents External Reasons.

Southern Association of Ancient Philosophy at Oxford At Oxford's Somerville College, the Southern Association of Ancient Philosophy meets through September 20. The themes is conference is Pre-Platonic Philosophy, with special reference to Pre-Socratic Philosophy.

Scheffler at North Carolina At the University of North Carolina's philsophy Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.

Call for Papers: Conservatives and Federalism
    Publius: The Journal of Federalism Publius, a quarterly review, will be publishing a special issue on American conservatives and federalism in the fall of 2004. We will commission manuscripts which consider the following conservative (or sometimes conservative) thinkers and their contribution to the study of federalism: George Sutherland, Felix Morley, Russell Kirk, Frank Meyer, Richard Weaver, Robert Nisbet, Martin Diamond, Edward Banfield, and William Riker. We are particularly interested in (1) how these conservatives conceived of federalism, (2) how federalism fit with their broader legal/political interests, (3) how their understanding of federalism reflected contemporaneous legal/political debates, and (4) how each has influenced--or failed to influence modern federalism thinking. Articles should be 20-25 double-spaced, typewritten pages with research notes of up to ten pages. Proposals to write articles should be approximately 500 words and submitted by November 15. Final drafts will be due in the Spring of 2004. Authors are welcome from various disciplines--particularly economics, history, law, philosophy, political science, and sociology. Proposals to write on conservatives not listed above will also be considered. Decisions to commission authors will be made by the guest editor, Kim Hendrickson, in consultation with the editor of Publius. Upon submission of manuscripts, the editors will make final judgments about suitability for publication. Articles will be refereed by members of the editorial staff and anonymous reviewers and will be expected to meet standards of scholarly excellence. A style guide is available on the Publius website: Proposals and queries should be sent to Kimberly Hendrickson at or: Kimberly Hendrickson American Enterprise Institute 1150 17th Street NW 12th floor Washington, DC 20036

Conference Announcement: Rawls and the Law
    Conference Announcement RAWLS AND THE LAW Fordham University School of Law November 7-8, 2003 Fordham University School of Law is pleased to announcethat it will hold a conference on "Rawls and the Law" onNovember 7-8, 2003. Professor John Rawls of HarvardUniversity, who recently died, is widely regarded as themost important political philosopher of the TwentiethCentury. Strikingly, while there have been a number ofconferences or symposia on Rawls's individual books - suchas A Theory of Justice (1971), Political Liberalism (1993),and The Law of Peoples (1999) - there have been none thatfocus on the implications of his work for law. That willbe the focus of this conference, which is to be the thirdin a series of conferences in constitutional and legaltheory at Fordham that began with the symposium on"Fidelity in Constitutional Theory" in 1996 and continuedwith the conference on "The Constitution and the GoodSociety" in 2000.Ronald Dworkin has agreed to give the keynote address, andthe panelists will be a number of leading scholars inconstitutional theory, political philosophy, andjurisprudence, along with a number of Fordham faculty. Thepapers and proceedings are to be published in Fordham LawReview. REGISTRATION/FURTHER INFORMATION:Below is the preliminary program. For more information,contact:CONTACT: Professor James E. FlemingEmail: Tel: (212) 636-6839 To register
      (1) go to: http://law.fordham.edulook under "events spotlight," and click "go" on "Rawls and the Law" or
      (2) contact: Darin Neely, Fordham's Assistant Director of Academic Programs. Email:, Fax: (212) 636-6984
    PROGRAM: Rawls and the Law Preliminary Schedule, Panels, and Panelists FRIDAY, NOVEMBER 7: 1.The Constitutional Essentials of Political Liberalism(9:30 a.m.-11:00 a.m.)
      James E. Fleming, Fordham University School of Law Frank I. Michelman, Harvard Law School T.M. Scanlon, Harvard University Department of Philosophy Jeremy Waldron, Columbia University School of Law Moderator: Charles A. Kelbley, Fordham UniversityDepartment of Philosophy
    2. Keynote Address: Rawls and the Law (11:15 a.m.-12:30 p.m.)
      Ronald Dworkin, New York University School of Law
    Lunch (12:30 p.m.-2:00 p.m.) 3. Equal Citizenship: Gender (2:00 p.m.-3:15 p.m.)
      Linda C. McClain, Hofstra University School of Law Susan Moller Okin, Stanford University Department ofPolitical Science Marion Smiley, Brandeis University Department of Philosophy Moderator: Tracy E. Higgins, Fordham University School ofLaw
    4. Equal Citizenship: Race and Ethnicity (3:30 p.m.-4:45 p.m.)
      Anita L. Allen, University of Pennsylvania Law School Tommie Shelby, Harvard University Department of African &African-American Studies Seana Shiffrin, University of California at Los AngelesSchool of Law Moderator: Sheila R. Foster, Fordham University School ofLaw
    5. The Law of Peoples (5:00 p.m.-6:15 p.m.)
      Seyla Benhabib, Yale University Department of PoliticalScience Stephen Macedo, Princeton University Department of Politics Thomas W. Pogge, Columbia University Department ofPhilosophy Moderator: Martin S. Flaherty, Fordham University Schoolof Law
    Reception (6:15 p.m.) SATURDAY, NOVEMBER 8: 6. Justice as Fairness Restated: Tort (9:30 a.m.-11:00 a.m.)
      George P. Fletcher, Columbia University School of Law Gregory C. Keating, University of Southern California Law Center (visiting at Harvard) Stephen R. Perry, New York University School of Law Arthur Ripstein, University of Toronto Department of Philosophy Moderator: Benjamin C. Zipursky, Fordham University School of Law
    7. Property, Taxation, and Distributive Justice (11:15a.m.-12:30 p.m.)
      Anne L. Alstott, Yale Law School Robert D. Cooter, University of California at Berkeley School of Law Thomas Nagel, New York University School of Law and Department of Philosophy Moderator: Linda F. Sugin, Fordham University School of Law
    Lunch (12:30 p.m.-2:00 p.m.) 8. The Idea of Public Reason Revisited (2:00 p.m.-3:30 p.m.)
      Samuel Freeman, University of Pennsylvania Department of Philosophy Abner S. Greene, Fordham University School of Law David A. J. Richards, New York University Law School Dennis Thompson, Harvard University Department of Government Moderator: Michael Baur, Fordham University Department of Philosophy

Scheffler at North Carolina At the University of North Carolina's Philosophy Colloquium series, Samuel Scheffler presents Doing and Allowing today.

Supreme Court Preview, Today at William and Mary
    Today and tomorrow at William and Mary, the Institute of Bill of Rights Law, is hosting the sixteenth annual Supreme Court Preview. Here are the details: WHAT TO EXPECT FROM THE 2003-2004 TERM The Institute of Bill of Rights Law is pleased to invite you to attend its 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

Speta at Georgetown At Georgetown's IP series, Jim Speta presents The Missing Piece of the 1996 Telecommunications Act: Accelerating Local Competition.

Kukathas at Arizona At the University of Arizona's philosophy colloquium series, Chandran Kukathas (Political Science, University of Utah) presents Exit and Gender.

Thursday, September 18, 2003
More on the Capacious Water Well Check out Matthew Morse here. My post was here.
Update: And a post entitled The ex ante-ex post distinction and scenarios from Elihu Gerson on Technical Work.

Patterson Review of Philosophical Foundations of Neuroscience Dennis Patterson (Rutgers, Law and Philosophy) has a review of M.R. Bennett and P.M.S.Hacker, Philosophical Foundations of Neuroscience, 2003, Blackwell Publishing, 480pp, $39.95 (pbk), ISBN 140510838X, just up on the excellent Notre Dame Philosophical Reviews. Access the review here. Here is a taste:
    A central feature of philosophy is the clarification of our forms of representation – the ways in which we make statements about the world. In articulating and employing this approach to the philosophical foundations of neuroscience, Bennett and Hacker bring to light defective forms of representation widely employed by some contemporary neuroscientists as well as some philosophers of mind. One of the many strengths of their book lies in its persuasive argument for the inherent distinctiveness of science and philosophy. Another is its clear-headed account of the necessity of philosophy to the proper conduct of science. Sweeping, argumentative and brilliant, this book will provoke widespread discussion among philosophers and neuroscientists alike.

Barnett on the Police Power Randy Barnett (Boston University) has posted The Proper Scope of the Police Power (forthcoming in the Notre Dame Law Review) on SSRN. Here is the abstract:
    When it comes to identifying the powers of the federal government, we know where to look. Article I of the Constitution provides a list. When it comes to the power of states over their people, the issue has always been shrouded in doubt. For, though the Constitution provides a list of specific limitations on state powers along with an enumeration of certain rights, it appears to be silent on the question of the proper scope of what is called the police power of states. In this article, I will contend that the Constitution is not really silent on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism - and its limits. These limits require that interpretation of original meaning be implemented by means of constitutional constructions that enhance the legitimacy of the Constitution without violating the original meaning established by interpretation. I then examine the original meaning of the provision that provides the limit on state power: the Fourteenth Amendment. Finally I offer the construction of the scope of the police power of states that is consistent with that limitation: the police power of states includes the power to prohibit wrongful and to regulate rightful conduct of individuals.

Kornhauser at NYU On September 18 at the Colloquium in Legal, Political and Social Philosophy (Nagel and Dworkin), Lewis Kornhauser (NYU School of Law) presented Governance Structures, Legal Systems and the Concept of Law.

Moreteau at Boston University At Boston University, Olivier Moreteau (Université Jean Moulin Lyon 3 & Institut de droit comparé Edouard Lambert) presents Can English Become the Common Legal Language in Europe.

Lewisch at George Mason At George Mason, Peter Lewisch (University of Imadec School of Law) presents Relevant Markets, Market Power, and Price Controls under the New EU Telecom Directives: The Case of Mobile Telephony.

Beebee at ANU At RSSS (Australian National University) Helen Beebee (University of Manchester) presents Hume on Causation: Causal Experience, Projectivism, and Sceptical Realism

Kristen Adams at Florida State At Florida State, Kristen A. Adams (Stetson) presents Promise Enforcement: Can the Lessons of Hundertwasser and Rousseau Save Affordable Housing in the United States?.

Call for Papers: Beijing International Conference on Democracy
    Call for Papers: BEIJING INTERNATIONAL CONFERENCE ON DEMOCRACY (BICOD '04) April 26-28, 2004 Beijing, China The Beijing International Conference on Democracy, postponed from September 2003 because of the outbreak of SARS, has been rescheduled for April 26-28, 2004. The Conference, sponsored by the Ford Foundation and organized by the Institute of Philosophy, Chinese Academy of Social Sciences (CASS), will provide a significant forum to explore philosophical issues relating to democracy and their application, especially in China. INVITED SPEAKERS Professor Stephen Angle (Wesleyan University, USA): Must We Choose our Leaders? Human Rights and Political Participation Professor Ali Benmakhlouf (University of Paris X, France): Capability and Recognition: Can Politics Deal With These Concepts? Dr. Nicholas Bunnin (University of Oxford, UK): Non-Utopian Democracy Professor Chen Yunqian (Institute of Philosophy, CASS) From People as Root to Democracy Dr. Yung-hsiang Chiu (Academia Sinica, Taiwan): Deliberative Democracy and the Public Sphere Professor Andreas Follesdal (University of Oslo, Norway) Human Rights in Federal Systems: the Challenges of Poly-centric Political Orders Illustrated by the European Union Professor Bob Goodin (Australian National University, Australia): No-Party Democracy Professor Gu Su (Nanjing University) On Basic Principles of Plural Democracy Professor Osvaldo Guariglia (University of Buenos Aires, Argentina): Social and Economic Human Rights as a Way to Impede Corruption Professor Han Shuifa (Peking University) TBA Professor Han Zhen (Beijing Normal University) Democracy as a Political Strategy of Compromise Regarding Interests Professor Hou Cai (CCP, Central Party School, Beijing) Alternative Modes of Democracy Dr. Kim Hutchings (University of Edinburgh, UK): The Idea of Cosmopolitan Democracy: An Ethical Assessment Professor Li Pengcheng (Institute of Philosophy, CASS) Democracy: Value or Form Professor Li Qiang (Peking University) The Implications of Western Republicanism Professor Ren Jiantao (Zhongshan University, Guangzhou) Later Developing States and Direct Democracy Professor Ru Xin (Institute of Philosophy, CASS) TBA Associate Professor Julia Tao (City University of Hong Kong): TBA Professor Ten Chin Liew (National University of Singapore, Singapore): The Value of Democracy Professor Wu Yuanliang (Institute of Philosophy, CASS) On the Paradox of Democracy Speakers are welcome to propose their own topics concerning democracy. Some speakers may wish to include the application of their views to the circumstances of China or other societies. The following questions should give some guidance, but speakers are free to select topics outside this range. 1. What are the characteristics of a democratic society and a democratic state? 2. Is the reform of society or the reform of state institutions more important for securing greater democracy? 3. What weight should be given to the claims of autonomy and the claims of community in a democratic society? 4. What opportunities should citizens have to participate in making political decisions and in filling political positions in a democratic society? 5. What basic rights and freedoms should citizens and groups have in a democratic society and how might these be safeguarded 6. Are there special constraints on the democratic institutions in a society that is pluralist in national, ethnic, cultural, linguistic or religious terms? 7. How can political and economic power be democratically exercised and regulated in a socialist society with a market economy? 8. Should democratic reform be driven more by the changing needs of politics, economy or society? 9. Can the choice of one set of democratic institutions rather than another reduce the dangers of corruption, weak or irrational decision-making, factionalism, populism or excessive nationalism in a particular democratic society? 10. What should determine the sequence and timing of democratic reforms? 11. In a society seeking greater democracy, should deliberations about reform be restricted to intellectuals or take place in a wider public arena? 12. How can different conceptions of democracy contribute to deliberation about the political future of a society? Conference lunches will be provided on April 26-28, 2004, but speakers selected from the Call for Papers will pay for their breakfasts and dinners during the Conference, their accommodation for the nights of April 25-28, and their international and domestic travel expenses. In addition, there is a US $300 registration fee payable by cash or cheque upon registration on April 24. If you wish to be considered to speak at the Conference, please submit the following information by email to Dr. Nicholas Bunnin (University of Oxford) and Professor Jiang Yi (Institute of Philosophy, CASS) by October 31, 2003.

Call for Papers: Democracy and Social Justice
    Call for papers: Democracy and Social Justice Contributions are invited for a special issue of Theoria to mark a decade of democracy in South Africa. For this special issue contributors are invited to reflect on the process and challenge of building democracy and on progress towards social justice since 1994. Contributions from across the social sciences and humanities, both discipline-specific and interdisciplinary, will be welcomed. Contributors are encouraged to reflect directly on contemporary theories of democracy and social justice, on how different disciplines might define, address or apply these theories, on the applicability of such theories for processes of democratization and the advancement of social justice, on the implications of actual developments for theory, policy, implementation, research and future change and on the practical results and effects of ten years of social transformation in South Africa. Comparative perspectives, between countries or sectors, or situating South African efforts towards democracy and social justice in regional or global contexts, will also be welcomed. The deadline for submission of papers is 31 May 2004. Three hard copies of each paper, as well as an electronic version (preferably MSWord), an abstract and a short (three line) biography, should be sent to: Roger Deacon, Managing Editor: THEORIA, P.O.Box 50324, Randjesfontein, 1683, South Africa; e-mail: General information regarding Theoria may be obtained from its website:

Marmour at UCLA Andrei Marmour (University of Southern Califironia) will be delivering The Rule of Law and its Limits to the Legal Workhsop at UCLA.

R-E-S-P-E-C-T Find out what it means to me R-E-S-P-E-C-T Take care , TCB.
with apologies to Aretha Franklin.

Kristeva Conference at Memphis Today through September 20, the Annual Spindel Conference at the University of Memphis is entitled Kristeva’s Ethical and Political Thought.

Wednesday, September 17, 2003
Medical Marijuana and the Powers of Congress
    Update at end of post.

    Introduction I am blogging from the Courtroom One of the United States Court of Appeal for the Ninth Circuit. It is 8:30 a.m. and the oral argument in United States v. Oakland Buyer’s Cooperatives, the medical-marijuana case is about to begin. Just two days after the decision in the recall case, it hard to forget that this is the Ninth Circuit, the largest and most controversial of the intermediate courts of appeal in the federal system. And the Ninth Circuit has quite a home. Few who work outside the specialized and arcane field of federal appellate lawyering know that this unobtrusive building near the Tenderloin district contains some of the most beautiful architecture in any public building in America. The interior of the Supreme Court actually pales in comparison with court room one, which is stunning—with marble columns sculpture, mosaics, and stained glass skylights. Being in the room brings back a flood of memories from my time as a Law Clerk to Judge William Norris, who retired from the Ninth Circuit a few years ago. Enough reverie, on to the argument!
    This case raises the question whether the federal government has the power to criminalize the noncommercial distribution of marijuana for medical use. The clerk asks those in attendance to stand. The three-judge panel enters the room. The three judge panel includes Stephen Reinhardt, famous (or infamous) as the most liberal judge on the most liberal federal court in the United States. Also on the panel are Mary Schroeder (a very distinguished judge and the most senior member of the panel) and Barry Silverman.
    Judge Schroeder calls the case. The lawyer for the appellants is Professor Randy Barnett (Boston University, and, of course, the Conspiracy). Barnett walks to the podium, and begins. He starts with an overview of the appellant’s contentions.
    The Federalism Issue The appellant’s challenge to the federal criminalization of noncommercial distribution of medical marijuana rests of three entwined constitutional arguments. The first argument is based on the limits on Congress’s legislative power. The second is grounded in the notion of state sovereignty. And the third is rooted in the idea of individual liberty.
    Congressional Power and State Sovereignty A bit of background is in order. The United States Constitution does not grant plenary legislative power to Congress. Instead, Congress is given a set of enumerated powers, including, in Article I, Section 8, the power to regulate commerce among the several states. A catch-all clause allows congress to do what is necessary and proper to carry out its enumerated power. What is regulation of interstate commerce? That is, of course, one of the great questions in the history of American constitutional law. Any meaningful answer to this question must be historical, taking in the movement of commerce-clause jurisprudence from McCulloch v. Maryland, the great opinion by Chief Justice John Marshall, through the Lochner, New Deal, and Warren Court eras.
    Until the mid-1990s, the question as to whether the federal government had the power to criminalize noncommercial distribution of medical marijuana would have been considered to be theoretically interesting but practically settled. Why? Because the New Deal and Warren Court era cases were commonly read by scholars and lower federal courts to create plenary federal legislative power. That is, the assumption was that the Supreme Court had simply read the idea of limited and enumerated federal powers out of the constitution! Conservative legal scholars railed against this development, but as a practical matter, that’s the way it was, until . . .
    The Revolution: Morrison and Lopez . . . until the United States Supreme Court’s decisions in Lopez and Morris In Lopez, the Supreme Court invalidated the Gun Free School Zones act; in Morrison, the Court struck down the Violence Against Women Act. In both cases, the Court said that contrary to scholarly opinion, the Commerce Clause had teeth. Lopez and Morrison are monumentally important decisions, but how far do they reach?
    And that brings us to the Commerce Clause challenge to the federal prohibition on the distribution of medical marijuana. The appellant’s theory is simple. Congress cannot prohibit an activity that is noncommercial and entirely intrastate in nature. The government argues that Congress can do this, because of a New Deal era case, Wickard v. Filburn, in which the Supreme Court upheld the application of a New Deal statute that prohibited a farmer from growing wheat on his own land to feed to his own livestock. Why? Because the cumulative effect of on-farm consumed wheat on the national market for wheat was substantial. So Wickard allows Congress to regulate intrastate activity if the class of intrastate activity has a substantial cumulative effect on interstate commerce.
    Back to Barnett’s argument. Oral argument is an art, not a science. Most lawyers waste oral argument, usually be sticking to their strongest arguments and evading the court’s questions. Barnett does not fall into that mistake. Instead, Barnett goes straight for the hardest question. Under Wickard it matters hugely how one defines the class of activity to be regulated. The larger the class the greater the effect on interstate commerce. The smaller the class, the lesser the effect. So Barnett’s task is to convince the court that the relevant class is noncommercial intrastate medical marijuana distribution and not all use and distribution of marijuana. This task is a difficult one, and class definition will determine the outcome of the issue. The government will argue that Congress gets to define the class, and therefore the relevant class is all marijuana traffic, interstate and intrastate for medical and nonmedical uses—if this is the class, then there is a significant effect on interstate commerce. Barnett must convince the Court to focus on noncommercial, intrastate traffic in medical marijuana—if this is the class, there is no substantial effect on interstate commerce. Barnett goes back and forth with Silverman and Shroeder on this issue, making some headway.
    Barnett’s key argument is extremely clever. He argues that there are two alternatives that the Court should avoid. On the one hand, the Court should not allow the appellant to define a class that is trivially narrow, guaranteeing that the effect on commerce is insubstantial. On the other hand, the Court should not allow Congress to define the class. Why not? Because if Congress defines the class at its pleasure, then the more purely intrastate activity Congress reaches, the greater its power. So what should the Court do? Barnett’s position is gutsy and right. The Court must define the class itself, using common sense and practical judgment.
    Liberty The second set of issues in this case concerns liberty and this argument gained new life because of the Supreme Court’s decision last term in Lawrence, the gay rights case in which Justice Kennedy’s opinion for the Court focused on the concept of constitutional liberty—the sphere of individual autonomy into which government power may not intrude. The appellant’s argument is that there is an individual liberty right to use medical marijuana to relieve pain.
    Gerald Uelman (University of Santa Clara) (and the member of the O.J. defense team who came up with “If it does not fit, you must acquit.”) steps to the podium to argue that liberty issue. He starts well, by asking in a dramatic fashion, what interest justifies the federal government’s interference with an terminally ill cancer patient who uses marijuana to ease pain on her doctor’s advice. He quickly gets sidetracked, giving a convoluted explanation of the difference between heroin and morphine—going far from his core argument and on to territory that was simply not relevant to his own argument.
    The panel seemed sympathetic to the liberty argument, but doubtful as to its viability in the Supreme Court. This same panel had ruled that there was an implied “medical necessity” defense, but that decision was reversed by the Supreme Court. Although Justice Thomas reserved the constitutional questions, Judge Shroeder seemed confused on this point. Possibly, as Chief Judge, she is distracted by the recall case!
    The Government Judge Silverman asks whether Congress could prohibit the use of insulin. The government is forced to answer, “Yes, it could.” The government then goes off onto an irrelevant tangent—the FDA’s process for reclassifying drugs.
    Now, the the class of activities becomes the focus of a question by Reinhardt. This is a very dramatic moment. “Why not look at intrastate, noncommercial activity?” Now, the government lawyer is absolutely flustered. He goes back to the medical necessity case, which involved a completely different issue—what the statute reaches, not the question asked, “what class is relevant to the application of Wickard v. Filburn?”. He gets back on track. He argues that the state cannot be allowed to carve out specific activities—but Reinhardt interrupts, and pointing out that the states have been more prevailing more and more on such issues. Reinhardt then goes back to the appellants definition of the class—noncommercial, intrastate medical marijuana use. “Why does that have an effect on interstate commerce.” Once again, the government lawyer is flustered. He tries to evade the question. He talks about a different question, running to the Morrison case. Reinhardt is relentless. The government retreats to the argument that the only relevant class is the class defined by Congress. Reinhardt pursues again, in McCoy a prior Ninth Circuit commerce-clause case, the Court looked at a class it defined, not the class defined by the statute. The government is unable to make a cogent argument that there would be an effect on commerce if the class is defined in the way the appellants wish.
    The argument shifts to the question whether the distribution of medical marijuana is “commercial.” The government’s argument is that it is commercial, even though there is no fee, because users are encouraged to make donations. Reinhardt asks, “Is there any activity that does not involve money?” The government answers that the activity in Lopez, possession of a handgun, did not involve money. This is a fair answer.
    The argument shifts back to the class argument. The government now falls into the Barnett’s trap. Barnett said that the court should avoid two extremes—either defining the class so narrowly that it encompasses only a trivial case, and avoiding the contrary mistake—allowing Congress to define the class so broadly that Congress is allowed to define its own power to regulate wholly intrastate activity. The government lawyer tries to argue that the two extremes are the only alternatives, but this argument actually sets up the appellants claim—that the Court itself must exercise common sense and practical judgment to define the relevant class.
    Finally, the government returns to the liberty argument. The government relies on a prior Ninth Circuit decision holding that there is no liberty right to use laetrile—a bogus cancer drug. This is a reasonable argument. Of course, there is no question that marijuana is not like laetrile with respect to pain relief. In this sense, the governments argument actually reinforces the appellant’s argument—as long as the Court does not defer entirely to Congress’s judgment on the question whether there is a benefit. The government does not argue that Congress was right, but that it is Congress’s sole authority to find the facts.
    Conclusion Well, it was a very interesting argument. On the law, my reading is that the key issue is the definition of the class for the purpose of determining whether there is a substantial effect on interstate commerce. On this issue, the argument was one sided. The government actually fell right into Barnett’s clever position, and so far as the dialectic of argument is concerned, the government lawyer actually did tremendous damage to his own case. But the dialectic of argument is not the whole story. This case also has a political dimensions, and a big part of that dimension is the drug-prohibition lobby and its tremendous power in Washington. How that might influence the case is not for me to say. Very interesting!
    Post Script Rereading this post, I realize that it might convey an erroneous impression re the advoacy skills of the government lawyer--who was very skillful indeed and quite persuasive on many issues. My criticisms really go to the substance of the governments position and the failure of the government to adapt to the dialectic or argument--in real time under intense preasure from Judge Reinhardt's questions. The safe choice is simply to stick to your guns and hope for the best, and that is what the government did.

Zombies For a very serious philosophical discussion, surf here.

Cowen on the Case for Copyrights in Recorded Music Tyler Cowen has a nice post on the Conspiracy on the case for copyrights in recorded music. Here is the core of his argument:
    You've just earned a $250,000 advance for your rock band, and you don't see any real profit from it. Why not? Read this post to find out why. The money gets soaked up by managers, agents, recording expenses, marketing costs, lawyers, studios, and so on. In fact musical artists often end up owing their music companies. The indicated post is an anti-music company screed, but it is (unintentionally) one of the better arguments for copyright I have seen. True, most musical artists never see much copyright income, it gets grabbed by other parties along the way. But without copyright income the artists would be deeply, deeply in debt, or more realistically would never have the chance to record in the first place.
But of course, it isn't that simple. I have two quibbles with Tyler's argument:
    First, Tyler's post assumes that without copyright, the income would disappear, but this is not necessarily the case. Trademark and the combination of trade secret law with encryption and digital rights management would undoubtedly preserve at least some of the income flow from recorded music. Although the issues are much different today, it is important to remember that copyright in sound recordings is a relatively recent phenomenon. (The Copyright Act of 1976 first created copyright in the recordings as opposed to the underlying musical compositions.) Of course, before 1976 artists who recorded their own original compositions could effectively protect the sound recordings based on the copyright in the underlying musical compositor and lyrics.
    Second, Tyler's post assumes that the only variable that would be affected by termination of copyright in sound recordings would be income, but that is clearly not the case. If recording revenues disappeared, it is rather unlikely that the practices of the music industry would remain the same. In particular, given current technology, it seems much more likely that many artists would use dramatically less costly recording and distribution techniques. (Very high quality recordings can be produced at astonishingly low costs for many genres of music.) The distribution end is particularly important. Today, if all musical copyright were abolished (in both sound recordings and musical compositions), distribution would likely to move to the Internet--which enables mass distribution at extremely low costs.
In other words, in a world without copyrights in music, it would be terribly unlikely that artists would contract with record companies to incur the huge production, promotion, and distribution costs that characterize the contemporary music recording business. The real question is whether the alternative revenue sources would provide sufficient incentives for the production of recorded music. Frankly, I don't think I'm qualified to opine on that crucial question. And hence my bias remains in favor of the status quo.

Royal Institute of Philosophy Lecture Series RIP Lecture Series for 2003-2004 is entitled Philosophy, Biology and Life. For details, go here.

Ferrell at Michigan At the University of Michigan's Law and Economics series Allen Ferrell (Harvard) presents Mandated Disclosures and Stock Returns: Evidence from the Over-the-Counter Market.

Literalism and Contextualism One of the recurrent debates in legal theory concerns textualism and intentionalism, the debate as to whether legal texts can be interpreted on the basis of the plain meaning of text or whether it is necessary to look to the context in which the text was writtent to determine the intentions of the authors. This debate is related to a long-running debate in the philosophy of language, which is sometimes framed as the debate between literalism and contextualism. For a very nice introduction to the philosophical debate, take a look at François Recanati, Literalism and Contextualism: Some Varieties, in Gerhard Preyer, Ed. Contextualism. Oxford University Press (2003). Here is a snippet:
    Both Literalism and Contextualism come in many varieties. There are radical, and less radical, versions of both Literalism and Contextualism. Some intermediate positions are mixtures of Literalism and Contextualism. In this paper I describe several literalist positions, several contextualist positions, and a couple of intermediate positions. My aim is to convince the reader that the Literalism/Contextualism controversy is far from being settled. In the first section, I look at the historical development of Literalism. This development reveals a gradual weakening. The question that naturally arises is: How far can we go in this direction? Where will this tendency ultimately lead us? And the obvious answer is: to Contextualism. In the second section I describe the steps which, from a critique of the currently dominant literalist position (Minimalism), can lead to Contextualism. In the last three sections I describe various contextualist positions, and I discuss possible literalist replies to the contextualist challenge.
It is worth noting that in legal theory, there are really two debates. One is similar to the philosophical debates--it is about what texts really mean or what are the preconditions for the meaninfulness of a legal text. Another debate is about normative theories of legal interpretation. Irrespective of what statutes really mean in some deep sense, "how should judges and other legal officials interpret them?" Although the two debates are related, the latter, normative inquiry, raises issues that are not relevant to the first, conceptual and descriptive question.

Hughes on Database Protection Justin Hughes's article, How Extra-Copyright Protection of Databases Can Be Constitutional, 28 U. Dayton L. Rev. 159 (2002) has just become available on Westlaw. Here is a taste:
    Among those who believe that the database protection law is unconstitutional, there are almost certainly some who believe that INS was wrongly decided. For these scholars and advocates, Justice Brandeis stated it best in his INS dissent:
      The general rule of law is, that the noblest of human productions- knowledge, truths ascertained, conceptions, and ideas-become, after voluntary communication to others, free as the air to common use.
    The problem, as the Supreme Court noted half a century later, is that "there is no fixed, immutable line to tell us which 'human productions' are private property and which are so general as to become 'free as the air."' Instead, we are left to draw lines that put some human information products under some limited control of some particular humans. A purist may believe that this entire process is bankrupt and that information really does 'want to be free.' I am not that purist. I don't think information wants anything and even if it did, that would not decide the matter. Generally speaking, animals want to run free-that does not mean it is wise to let them do so in all circumstances. With the right combination of incentive, limitations, and exceptions, database protection could increase the amount of information in the public domain. With the wrong combination of the same, it could weaken the public domain, give a few people monopoly rents, and do little or no good for public discourse. In the end, each person who has studied the matter will have his or her own intuition about what legislation in this area will do as a policy matter. And-in the end-what it does as policy will determine whether it is constitutional.
This is a very well-argueed piece. One of Hughes's arguments has always struck me as particularly compelling: "The 1790 Copyright Act expressly mentioned only maps, charts, and books-a vision of copyright coverage that seems to focus on fact-based functional works, not creativity." Highly recommended.

Defenestration in Contemporary Jurisprudence For the scoop, surf here.

Tuesday, September 16, 2003
More on IP Theory Over at Sapere Aude, Joshua Claybourn has a post entitled Intellectual Property Rights that extends the recent exchange started by Eugene Volokh here with some comments from me here, more from Volokh here and final reply from me here.

Schwarzschild on Direct Democracy At New York Law School, Maimon Schwarzschild presents Voter Initiatives and American Federalism: Putting Direct Democracy In Its Place. Here is a taste:
    The idea of direct democracy conjures up sharply conflicting images and feelings. There is the positive, almost idyllic picture, which might be set in ancient Greece: the Birth of Democracy, the assembly of citizens under the acropolis, Pericles’ oration, Aeschylus’ furies tamed by self-government and the rule of law. Or think of a New England town meeting. Or of sturdy Swiss democracy. It is the hopeful vision of direct democracy: free and equal citizens governing themselves, open politics openly arrived at, public decisions that are truly of, by, and for the people. But set against all this is a negative, even lurid picture: in Athens itself, the trial and execution of Socrates, soon followed by Aristotle’s suggestion that democracy is a perversion of constitutional government, a degeneration into mob rule. Or in the twentieth century, the spectacle of plebiscites that reinforced dictatorship and fascism: torchlit scenes of Hitler’s plebiscites, to take the most gruesome example. Or more prosaically, H. Ross Perot in the 1990s calling for government by populist referendum. It is a dystopian vision: decisions made by vote of an often ill-informed public, polarised by “yes-or-no” questions, manipulated by demagoguery and special interests; the rights and interests of minorities put in peril, representative and republican institutions weakened.
This should be a winner!

Ortiz at Washington & Lee Oops! Dan emails to tell me this was last year! That's the way the blog crumbles, I suppose.
Last year, at Washington and Lee, Daniel Ortiz (Virginia) present[ed] The Paradox of Mass Democracy. Better late than never!

Seidman at Georgetown At Georgetown, Mike Seidman does The Secret Life of the Political Question Doctrine.

Menu Federalism Roger D. Congleton, Andreas Kyriacou, Jordi Bacaria's A Theory of Menu Federalism: Decentralization by Political Agreement is now available on Constitutional Political Economy (subscription required). Here is the abstract:
    This paper analyzes agreements between governments that determine the division of policy-making power between central and regional governments. Our analysis demonstrates that initial circumstances and political risks affect the degree of centralization that will be adopted, and that asymmetric forms of federalism are often consequences of ongoing negotiations between regional and central governments over the assignment of policy-making authority. We analyze three settings where gains from “constitutional exchange” may exist: (i) the under-centralized state, (ii) the over-centralized state, and (iii) the constitutional convention. In each case, an asymmetric form of federalism is the predicted outcome, although the degree of asymmetry differs according to starting point. Modern and historical examples are used to illustrate the relevance of our analysis.

Call for Papers: Kant and the Question of Community
    The Western Society for Eighteenth Century Studies Annual Meeting February 14-15, 2004 University of San Francisco Kant and the Question of Community
      In section 20 of his third critique, Kant emphatically notes a distinction between "common sense" [Gemeinsinn] and "sensus communis." Since the faculty of judgment is posited as the harmonizing force between the faculties of reason and understanding, the necessity of a "sense" that is common, or even "universal" underlies the entire critical project. In section 20 Kant demonstrates the existence of sensus communis on the ground that there must be a common sense that allows the "necessary condition of the universal communicability of our cognition." In this cryptic yet seminal moment in The Critique of Judgment, Kant presupposes a concept of community that is vaguely defined by its ability to communicate universal cognitions, and thereby to communicate both reason and understanding. Kant insists that the harmonizing that makes this all possible is not "merely subjective play." This implies that community itself is not merely constituted by subjects but more fundamentally by some sense of community that transcends subjectivity. However, the question of community (as well as its answer) remains rather obscure. The panel invites paper proposals (300 words) that interrogate this question within Kant's own work and/or in comparison with later philosophers, literary theorists, historians, or social scientists.
    One page proposals (300 words) by September 22, electronically or by mail:

Welcome to the Blogosphere . . . to Eastmania, authored by Wayne Eastman, who teaches law at the business school of Rutgers University, New Brunswick! This looks like it will be very interesting. Start here and work your way down!

Monday, September 15, 2003
Claim Preclusion and the Recall Case
    Introduction I've now had time to read the Ninth Circuit's per curiam opinion in the recall case. I will leave the merits of the equal protection claim to election-law superblogger Rick Hasen. I'm not an expert in election law or the equal protection clause. But I do know something about the doctrine of claim preclusion or res judicata. The question in Southwest Voter Registration Project v. Shelley (or Southwest) is whether Common Cause V. Jones (or Common Cause I) should have been given preclusive effect by the federal trial court. Common Cause I also involved a statewide challenge to punch card voting; that challenge resulted in a settlement, and a consent judgment involving some of the same plaintiffs (but not the NAACP) as in Shelley.
    Basics The doctrine of claim preclusion (or using the old-fashioned terminology res judicata) is a rule of procedure that prevents a plaintiff from litigating the same claim over and over again. In general, claim preclusion applies if: (1) the same claim as raised in a subsequent action was litigated in a prior action; (2) the parties are the same, or if different: (a) the new party is in privity with the old party, (b) the new party was adequately represented by the old party, or (c) the prior action involved a special remedial scheme (such as bankruptcy or probate); and (3) the prior action resulted in a final, valid judgment on the merits.
    Are the claims in Shelley the same as in Common Cause I? The Ninth Circuit said no, but that was a clear error of law. Under federal law, claims are the same if they are based on the same transaction (the same nucleus of facts), even if the legal theories are different. In Common Cause I, there was a prospective challenge to all statewide elections based on the theory that using punch card ballots violates the equal protection clause. In Southwest, there is a prospective challenge to one statewide election, the recall, based on the same legal theory. The Common Cause I claim encompassed the Shelley claim. In fact, this is obvious. Frankly, the reasoning of the Ninth Circuit on this point is terrible--but this is not surprising. Many federal judges haven't a clue when it comes to difficult issues of claim or issue preclusion.
    Are the parties the same? Or in the alternative is there privity, adequate representation, or a special remedial scheme? Some of the parties are the same, but the NAACP is a new and different party. The NAACP is probably not in privity with any of the Common Cause I plaintiffs--some preexisting contractual or status relationship is usually required for privity. Common Cause I did not involve a special remedial scheme. So the question narrows to one of "adequate representation." Simplifying, there are two routes to adequate representation. Route number one is a class action. Common Cause I was not a class action. Route number two is the doctrine of virtual representation. And that is the key issue in Southwest. "Virtual representation" is a very unusual doctrine. It binds a nonparty to a prior judgment, even though the prior action did not observe the formalities of a class action. That means that in the prior action the court was not notified that the parties and lawyers before it were representing others. In a class action, the judge must determine that the class representative is adequate. When the doctrine of virtual representation is invoked, the nonparty is bound without this safeguard. Although this is a very interesting, deep, and in my opinion, complicated issue, one thing is clear. The doctrine of virtual representation is bound to be controversial. And in fact, the federal courts are split with respect to the scope of this doctrine. Some view it narrowly, and some view it broadly.
    This much is clear: Southwest is the kind of public law case, involving the rights of the citizenry at large that has sometimes formed the basis for the application of the virtual representation doctrine. And another thing, the representation in Southwest was undoubtedly adequate. The lawyers were superb, the parties were sophisticated, and the interests represented were congruent with those of the new parties in Southwest.
    But that is not the end of the story. Not only is the virtual representation doctrine controversial, it has never been clearly endorsed by the United States Supreme Court. And in my opinion, the doctrine is particularly dicey in the context of a settlement, where the issues are never aired before a neutral tribunal.
    Bottom line? This is a truly difficult issue. My own bias is against the virtual representation doctrine, but fine scholars whose opinion I highly respect take a different position. The Supreme Court has never endorsed the doctrine, but it has never definitively rejected it either.
    Final valid judgment on the merits. There is no dispute about this. A consent judgment is a final judgment. This consent judgment was on the merits. So far as we know, there are no validity problems.
    Conclusion There is a real live claim preclusion issue in Southwest. It is cert worthy. It is difficult as a matter of theory. My guess is that the Supreme Court would be disposed to rule against state's claim preclusion defense--if it were not for the political ramifications of the case. Those ramifications and the fact that a liberal panel of the Ninth Circuit ruled against the recall add another dimension to the issue. But the politics of this case are baroquely complex, and I am hardly qualified to venture an opinion.
    Very interesting!

Hasen on the Ninth Circuit Recall Case Election law superblogger Rick Hasen's preliminary analysis is now available here.

Water Wells and MP3 Files: The Economics of Intellectual Property
    This post continues a discussion started by Eugene Volokh here with a response by me here and a further reply by Volokh here.
    Introduction Eugene Volokh blogged recently on the case for intellectual property. His main focus was on incentives, and he made an eloquent and compelling case for intellectual property based on the notion that without exclusive rights, there might be insufficient incentives for authors to write, composers to compose, bands to record, and inventors to invent. But an IP skeptic might reply as follows:
      But the need for incentives does not justify a full-fledged property right. In the case of property in tangible resources, there is another reason we create property rights. Consumption of tangible resources is rivalrous. If I use a plot of land, you cannot. If I eat a hot dog, it is unavailable for your consumption. Without property rights in tangible resources, we would have a tragedy of the commons.
    One of the nice things about Volokh's post was that he provided an example of an individual case in which consumption of a physical resource was nonrivalrous but we nonetheless confer traditional property rights. You can get the full example from either Volokh's original post or my reply. Let me summarize it here:
      A farmer has well with excess capacity. Even if all the neighbors who would use the well if it were free did so, the well's capacity would not be exceeded. (This means: (1) the water table on which the well draws is sufficiently capacious to meet all the demand, and (2) the well itself has sufficient delivery capacity so that it would not be subject to crowding effects, even if unlimited use of it were free.)
    Let's call Volokh's hypo, the capacious water well, or, for short, the well. The well is a marvelous example of what the philosopher, Daniel Dennett, has called an intuition pump--for Dennett's explanation of this idea, go here. Even IP skeptics, Volokh argues, will have the intuition that the farmer should have traditional property rights in the capacious water well. We have the strong intuition that the farmer should have a property right in the well, even though consumption is nonrivalrous. And if we have such a strong intuition in that case, then shouldn't the same forceful intuition carry over to the case of intellectual property?
    Something bothered me about Volokh's intuition pump. It's not that I don't see the force of the incentives argument. It's that the capacious water well hypo didn't seem quite kosher. Hence my post in reply to Volokh, where I focused on the idea that the well is a club good--because consumption is nonrivalrous up to some threshold. Eugene and I exchanged a couple of emails, and I couldn't convince Eugene that I was right. This bothered me. On the one hand, I was quite sure I was on to something. On the other hand, Volokh is one of the brightest guys in all of legal academia. Clearly, I had more work to do. It was off to the library. (I live in the hills above UCLA, so normally I go to the Young research library, but with the state budget crisis, Young was closed and so I had to drive all the way to Cal State Northridge.)
    So I read up on the economic theory of intellectual property law. I reread James Buchanan's original article about club goods and also investigated the differences between club goods and toll goods. And I thought long and hard about my failure to persuade Eugene. This post is the result!
    The Nature of Intellectual Property: Public and Private Goods Let me begin with some basics. The usual story about the economics of intellectual property begins with the distinction between public and private goods. Here are the definitions:
    • A pure private good is a good for which two conditions hold. First, the good is excludable. That is the owner of the good can deny others access (build a fence) or the law can build a legal fence by creating enforceable property rights in the good. Second, consumption of the good is rivalrous. That is, if I consume the good, you can't, and vice versa. So a Starbucks triple nonfat latte is a pure private good. I can exclude you from consuming my latte (and the law will back me up), and if I drink the latte, you can't.
    • A pure public good is nonexcludable and nonrivalrous. National defense is sometimes considered a pure public good. If the nation is protected against foreign invaders, it is very difficult to exclude particular persons from the protection. And my getting the benefits of a strong nation defense doesn't interfere with your getting the benefits.
    What are the implications of this distinction? Private goods should be property and provided by markets, for two reasons: (1) without private property in private goods, rivalrousness of consumption creates a tragedy-of-the-commons problem; and (2) without market-pricing, these goods would either be under- or overconsumed and over- or underproduced. Public goods, on the other hand, cannot easily be provided by markets. Without excludability, no one can charge a price for a public good. And because no one can charge a price, public goods will be underproduced by the market. No one will go into the private national defense business, because their is no effective way to charge individual consumers for this service--everyone is tempted to be a free rider.
    How does this apply to intellectual property? A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a private good.
    If this were the end of the story, Volokh would be right: the case for intellectual property would essentially be the same as the case for property in tangible things. But as you no doubt already have observed, intellectual property is not a pure private good. There were two criteria for a pure private good, rivalrousness and excludability. The law can create excludability for information, but what about rivalrousness? Consumption of information is normally nonrivalrous. If I copy an MP3 file, it doesn't affect your ability to do so. If I use some plans to produce a better mouse trap, it does not affect your ability to use a different copy of the plans to process the same information and make a mousetrap from the same design.
    Clearly, we need some additional categories. How do we categorize goods that satisfy enforceability but not rivalrousness? And what about goods that are rivalrous but cannot be made excludable? Let's add two more kinds of goods to our classificatory scheme:
    • A common pool good is rivalrous but nonexcludable. The stock of fish in an ocean may be a common pool good, assuming it is either impossible or too costly to enforce fishing limits.
    • A toll good is nonrivalrous but excludable.
    And we need one more category. Some goods are only partially rivalrous. Take a motion picture theater. My viewing the movie does not impair your ability to view the movie, until all the seats are filled. James Buchanan wrote a very famous article about this kind of good:
    • A club good is a good that has an optimal number of consumers. If too many consume the good, the joint utility of the group will be reduced because of crowding effects.
    With this final category in place, we can summarize using the following table:
    Table One: Public, Private, Common Pool, Toll, and Club Goods.
    __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________

    Intellectual property law moves information from the public good to toll good. Legally enforceable intellectual property rights make information a toll good, because they create excludability but not rivalrousness. Copyright law gives me the power to exclude you from making copies of my writings, but it does not make consumption of the information (e.g. the syntactic content) rivalrous.
    The Well Revisited: Stage One So now back to the case of the capacious well. Here is my worry. Eugene's argument seemed designed to get us to see that our intuitions about property in tangible resources should carry over to intellectual property. But as a general matter, property is tangible resources like water wells is thought to be a pure private good. Volokh, however, came up with an example where rivalrousness was not present, but our intuitions favoring property rights remained strong. In my prior post, I suggested that Volokh had misclassified the capacious well. I argued that it was a club good, because water wells, as a general rule are subject to crowding effects. Even if the water table was infinitely capacious, I argued, the well itself could become crowded if too many farmers tried to access it at the same time. Here is how Volokh responded in his most recent post:
      My original hypothetical explicitly assumed that "the water table is huge, and the farmers aren't going to exhaust it," because there were only a few hundred farmers living nearby. Naturally, that's not always so; in many places, water tables are exhaustible. But it's not implausible that in some lightly populated places, the water table would indeed be practically inexhaustible -- not theoretically, since if transportation costs were nil, farmers from all over the world would come by, but practically. That was the hypothetical, and in this hypothetical the water well is like intellectual property: It's practically nonrivalrous. And the implication remains that it makes logical sense to have property rules even for nonrivalrous goods, because property rules assure an incentive to invest, and not just protect the right to use (as opposed to exclude).
    And of course, Volokh is right. There is a minor technical error in Volokh's statement of the hypothetical. The good that we are dealing with is not water. Volokh is not arguing that the farmer should have property rights in the water table itself. The good is the well, which performs a service by making the water more accessible. The crowding effect that is relevant to Volokh's water well is at the point of access. If too many farmers try to get simultaneous access to the well, there will be crowding effects. This would make the well a club good and not a toll good. And the economics of club goods and toll goods are different, precisely because crowding effects potentially create tragedy-of-the commons problems.
    But after thinking the problem through carefully, I realize that that my position is not vindicated by this technical defect in Volokh's argument. Because he can easily fix the capacity problem by stipulating that the well itself has sufficient capacity so that assuming the water were free and all of the farmers in the neighborhoods used the well simultaneously, there would still be excess capacity. If I tried to argue with Volokh about this, I would simply be fighting the hypothetical. When you fight the hypo, even if you win the battle, you lose the war. Volokh could simply switch to another particular case in which a tangible resource is a toll good, not a pure private good or a club good.
    But I am still not satisfied with Volokh's argument. I am still convinced that Volokh is using capacious water well hypo to pump intuitions that are not trustworthy. Why? Because there is a real different between intellectual property and property in tangible things. What is that difference? And more to point: How does that difference survive Volokh's case of the capacious water well? My answer to these questions will move in three stages.
    Three Ways of Looking at Property and Property Rights My hunch was that the intuitions about the case of the capacious water well should not carry over with the same force to the case for intellectual property rights in general. But what is the difference? There are actually three differences. Each is important in its own right, but the three in combination are quite powerful. So what are they?
      Ways of Looking at Property Rules: (1) Accidental and Necessary Properties of Property Here is the first difference between the capacious well and intellectual property. Nonrivalrousness is an accidental feature of the capacious well, but information is essentially nonrivalrous. What does that mean? In Volokh's case, the fact that the capacious well had excess capacity was an accident. In just so happened that this well had excess capacity that would not be exceeded even if the water were made available for free. If the well were smaller or the needs of neighboring farmers were greater, the well would become a club good. Information, on the other hand, is inherently nonrivalrous in consumption. It doesn't matter how many music fans want to copy the latest MP3 file, additional copies do not diminish the ability of others to make copies. When we think about property rules, we need to be careful whether we are thinking about accidentally or systematic properties of the kind of good we are contemplating.
      Ways of Looking at Property Rules: (2) Ex Ante and Ex Post The second difference between the capacious water well and information is related to the first. When Volokh sets up the water-well example, he takes an ex post perspective. Looking back at this particular well, it turns out that it has excess capacity. But when we think about the question whether there should be intellectual property rights in information, we take an ex ante perspective. We are not looking backward at a particular work, and asking whether that work should be property. We are looking forward at copyright law and/or patent law in general. When we think about property rules (or any legal rules), it is important to distinguish the ex ante and ex post perspectives.
      Ways of Looking at Property Rules: (3) Systemic and Particularized The third difference between the capacious water well and information is related to the second. When Volokh set up his hypothetical, he looked at a particular water well, but he used this particular example as an analogy for a general class of cases, e.g. all of intellectual property law. But when we look at particular cases, we need to be careful about drawing systemic conclusions. When we think about property rules, we need to be clear as to whether we are making a rule for a particular case or for a general category of cases.
    What are the implications of these three distinctions for the capacious water well and intellectual property?
    The Well Revisited: Stage Two So, the capacious water well hypo pumps intuitions based on the accidental features of a particular case described from the ex post perspective. These intuitions are then applied to the necessary features of information as a resource and the ex ante and systemic question whether the law should protect intellectual property. Of course, the intuitions drawn from the well may still be valid. Part of what Volokh did with the capacious well hypo was to draw out intuitions about the necessity of incentives, i.e. incentives for the farmer to drill the well. As I stated in my previous post, that part of the argument is unproblematic. But Volokh wanted to get more out of the capacious well. In particular, he seemed to use our intuitions about the well to minimize the importance of the distinction between property in information and property in tangible resources.
    But this intuition cannot be pumped from the well! Why not? Because our intuitions about the well are polluted by our knowledge of property in tangible things, from an ex ante, systemic perspective that considers their essential nature. That's a mouthful. So let's unpack it:
      First, the essential nature of tangible property is rivalrous; it is not nonrivalrous. That is, because tangible things are tangible, it is always possible that consumption of a tangible resource can become rivalrous. Take the example of clean air. Before the industrial revolution clean air looked like a pure public good. Everyone can consume as much as they want and no one can be excluded. After the industrial revolution, it became clear that consumption of clear air was at least partially rivalrous. My use of the atmosphere to dispose of smoke from my stack may interfere with your breathing. And this applies to the water well. It is always possible that circumstances will change, and the capacity of the well will be exceeded. A factory moves to valley and starts pumping vast quantities of water. Neighboring farmers switch from wheat (low water consumption) to rice (high water consumption) and the capacity of the well is exceeded.
      Second, from the ex post perspective the case is fixed, but from the ex ante perspective it becomes variable. If we look backwards at one well drilled by one farmer at one point in time, it looks like the well is a pure toll good. No rivalrousness! But if we take the ex ante perspective, then this is not so clear. How do we know, from the ex ante perspective, that the well will not, at some point in the future, become subject to crowding effects? Volokh can try to jury rig the hypo to make crowding effects unlikely, but unless he sacrifices realism, it will be difficult to guarantee no crowding effects over the very long run.
      Third, from the systemic perspective, water wells are club goods and not pure toll goods. If we look not just at the particular capacious water well in Volokh's hypothetical, then it is clear that there are crowding effects. Not every water well is subject to crowding effects at every moment in time. Obviously! But if the legal rule were that water wells were treated as common pool goods (e.g. access was free), then on average there would be substantial crowding effects.
    I am sure, gentle reader, that you are now well ahead of me. You already see that the three differences between the capacious water well hypo and the general policy question concerning intellectual property interact with each other. Comparing the accidental properties of a single water well from the ex post perspective with the essential properties of information from the ex ante perspective really is comparing apples with oranges.
    Comparing Apples with Apples So what happens if we compare apples with apples? That is, what if we compare the ex ante systemic case for property rights in information with the ex ante systemic case for property rights in water wells. Abracadabra! The intuitions that we pumped from the capacious water well disappear in a puff of smoke! Now, the case for property in water wells becomes much stronger than the corresponding case for property in information. Why? The incentive argument applies to both water wells and information, but crowding effects (the tragedy of the commons problem) applies only to water wells. We've come round in a circle to the point we started. Rivalrousness really makes a difference.
    Comparing Oranges with Oranges We're not done. We can compare oranges with oranges. That is, we can compare two ex post, particularized cases, where we are allowed to vary the accidental properties of the good in question. Watch me carefully now! And here is where it gets really interesting. Once we do this, we learn something really important. Because now we can produce an example where rivalrousness really does make a difference. So now let's imagine a pair of water wells:
      Case One: In the first case, the farmer had sufficient incentive based on his own water needs to drill the well regardless of whether he can charge his neighbors for the use of the well, and the cheapest well that he could drill was capacious enough to meet the needs of all of his neighbors without any crowding effects, and the cheaper the water is, the more they will use, without exceeding capacity.
      Case Two: In the second case, the farmer had sufficient incentive based on his own water needs to drill the well regardless of whether he can charge his neighbors for the use of the well, and the largest capacity well the farmer could drill is insufficient to meet the simultaneous demand of all his neighbors (but still sufficiently large to meet the needs of some neighbors).
    What intuitions have been pumped? In case one, there is no social welfare gain from giving the farmer a property right. Allowing the farmer in case one to charge for the use of the well causes a dead loss of utility. In case two, however, there is a social welfare gain from giving the farmer a property right, but the gain comes entirely from preventing crowding effects--since the case is set up so that no incentive is required. Once again, rivalrousness makes a difference.
    Here is the payoff. We've learned that when we compare from the ex ante, systemic perspective, and focus on the essential characteristics of the good, rivalrousness matters. We've learned that when we compare from the ex post, particularized perspective, and focus on the accidental properties of the good, either rivalrousness or incentive effects can drop out. It just depends on the way that you set up the hypothetical. And from those two lessons, we have learned the source of my discomfort with Volokh's argument based on the capacious water well. The intuitions we pumped from the capacious well were not trustworthy as a guide to a larger question: "Is the case for property rights in information in some important sense different and weaker than the case for property rights in tangible resources?" The intuitions we pumped from the well suggested that the answer to this larger question was "no," but in fact, the answer is "yes."
    Back to the Beginning: Are Incentives Necessary? So this brings us back to the beginning. The fact that the consumption of information is nonrivalrous may not make any practical difference, depending on incentive effects. The current regime of intellectual property law assumes that incentives are necessary, but that incentives alone justify weaker property rights in information than in tangible resources. Why do I say that? Because property rights in tangible resources are unlimited in time, but copyright and patent grants property rights only for limited terms. But this is just the assumption required to justify the status quo. There is a larger question--the question that prompted Volokh's first post. Is the current regime justified? Are even property rights that are limited in time required to given sufficient incentives for the creation of new information, e.g. new inventions, writings, music, sound recordings, and so forth. As I said in my prior post, I am convinced by the incentives argument. But not everyone is. There are several different lines of criticism. For an overview of the evidence (and lot’s of other relevant stuff), I suggest that you take a look at two entries in the Encylopedia of Law and Economics: For an example of contemporary work in economics that questions the incentives justification for intellectual property, you might want to take a look at the work of Michele Boldrin (University of Minnesota) and David K. Levine (UCLA). They've written a paper entitled The Case Against Intellectual Property, 92 American Economic Review Papers and Proceedings 209-12 (May 2002). Here's a quick summary of their rebuttal to the incentives argument:
      Boldrin and Levine begin by recognizing the appeal of the common argument that property rights provide strong incentives to innovate. “If property rights provide good incentives for the production of potatoes, they must also provide good incentives for the production of ideas.” This argument, they agree, is appealing and sensible. However, they go on to point out an often overlooked feature of copyrights and patents: these systems do not simply confer rights to own and sell intellectual property; they also confer rights to control the subsequent use of that property. “When you buy a potato you can eat it, throw it away, plant it, or make it into a sculpture. Current law allows producers of CDs and books to take this freedom away from you. When you buy a potato you can use the ‘idea’ of a potato embodied in it to make better potatoes or to invent French fries. Current law allows producers of computer software or medical drugs to take this freedom away from you.” The authors consider this discrepancy a distortion of basic property rights, a kind of “intellectual monopoly.” Generally speaking, the initial sale of a commodity typically captures the value of its subsequent uses. With all other commodities, economists assume that the normal operation of the market allows property owners to realize this value in the sale price. For ideas, however, this normal market function is presumed to fail; instead, the copyright or patent holder enjoys a so-called downstream monopoly. In the case of normal markets, economists usually agree that such monopolies are socially detrimental. Boldrin and Levine argue that the singling out of intellectual property has been justified on an extreme assumption—that it costs exactly nothing to reproduce ideas. If this is the case, then the first purchasers of intellectual property will not be willing to pay enough to cover the costs of developing the embodied ideas—why pay for something when you can use it for free?. But Boldrin and Levine argue that in practice, it does cost something to reproduce ideas, although this cost may be small. This is the scenario they use in their model. With a small, positive reproduction cost, the first sale of an intellectual property may, in fact, generate sufficient profits to cover development costs. In other words, the difference between “zero” costs and “small” costs of reproduction may be far greater than one might assume.
    I am not endorsing these arguments against intellectual property. My mind is not made up. But Boldrin and Levine's arguments do not apply, in general, to property in tangible resources.
    And this brings us full circle, back to Eugene Volokh's original post, a marvelously lucid and persuasive summary of the case for intellectual property. In the end, I am not sure whether Volokh and I disagree about anything. I may have been reading too much into the capacious water well hypo. Volokh may have introduced the hypo for a very limited purpose--to show that the incentives justification for property can operate independently of the justification that depends on rivalrousness. On this point, Volokh and I are in complete agreement.

Behavioral Law and Economics Surf on on over to Corporation Law and Economics, for a very good post by Stephen Bainbridge. Here's a taste:
    As with any model claiming predictive power, law and economics rests on a theory of human behavior. Specifically, neoclassical economics is premised on rational choice theory, which posits decisionmakers who are autonomous individuals who make rational choices that maximize their satisfactions. Critics of the law and economics school have long complained that rational choice is, at best, an incomplete account of human behavior. Over the last 10-15 years, however, a new school of economic analysis has emerged that challenges the rational choice model precisely on its predictive power. Empirical and laboratory work by cognitive psychologists and experimental economists has identified a growing number of anomalies in which behavior appears to systematically depart from that predicted by rational choice. A good example is the so-called status quo bias: All else being equal, decisionmakers favor maintaining the status quo rather than switching to some alternative state. The status quo bias can lead to market failure where decisionmakers’ preference for the status quo perpetuates suboptimal practices.

Republican Legal Theory Congratulations to Tim Sellers (University of Baltimore) on the publication of Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State by Palgrave. Here is an abstract:
    Republican Legal Theory discusses the history, constitution and purposes of law in a free state. This is the most comprehensive study since James Madison, Alexander Hamilton and The Federalist of republican legal ideas. Sellers explains the importance of popular sovereignty, the rule of law, the separation of powers, and other essential republican checks and balances in protecting liberty and against tyranny and corruption.
Hitting bookstore shelves near you in October, you can pre-order on Amazon today!

From LTB Weekend Edition On Saturday, the Download of the Week presented my recommended paper from last week and the Legal Theory Bookworm introduced Julie Dickson's Evaluation and Legal Theory. On Sunday, the Legal Theory Lexicon (a feature aimed primarily at law students) discussed the ex ante/ex post distinction and the Legal Theory Calendar previewed this week's workshops, colloquia, lectures, and conferences in law and related disciplines.

Tung at Loyola Marymount At Loyola Law School of Loyola Marymount Unversity, Frederick Tung presents an internal workshop entitled Mixed Metaphors: The Disconnect Between U.S. Corporate Charter Competition and Issuer Choice in International Securities Regulation.

Geistfield at NYU At NYU's faculty workshop series, Mark Geistfeld is doing an internal workshop. Can anyone supply a title or link to the paper?

The Recall at UCLA At UCLA, Larry Levine (Democratic Campaign Consultant), Allan Hoffenblum (Republican Campaign Consultant), and Dan Lowenstein (UCLA) present The Politics of the Recall Election.

New Papers on the Net Here is today's roundup:
    Terrorism, Panic and Pedophilia Virginia Journal of Social Policy & the Law, Vol. 10, No. 3 Daniel Filler University of Alabama - School of Law Abstract:
      How did Americans apportion responsibility for the acts of September 11 and how might that response change in the aftermath of future terrorism? This article studies the nation's reaction through a sociological lens. Following high profile crimes, the public often panics, targeting marginal sub-communities with anger and new regulations. This phenomenon is often termed 'moral panic.' After technological catastrophes, however, public blame is typically more diffuse, taking the form of 'risk society panics' that focus not only on individuals and sub-communities, but also socially powerful institutions such as corporations and the government. September 11 was a combination of crime and technological catastrophe - criminals killed thousands of people by subverting technology, taking advantage of the dangers inherent to air travel, high rise buildings, and the like. Public reaction reflected this ambiguity. This article studies rhetoric used after September 11 to understand why public anxiety unfolded as it did. Despite anger towards Muslims and people from the Middle East, and government policy disparately targeting these groups, public and institutional responses were mild compared to internment policies following Pearl Harbor. A new rhetoric has surfaced, however, linking terrorism, Islam and pedophilia. By connecting these concepts, moral entrepreneurs lay the groundwork for a very different response to new terrorism. In the aftermath of an incident similar to September 11, Muslims could be the object of a moral panic, targeted for radical regulation, such as internment. By framing Muslims as the equivalent of pedophiles, advocates may attempt to argue for such policies as the moral equivalent of sexual offender civil commitment. This article suggests that civil rights advocates develop counter-narratives to address any such developments.
    Regulation and Rights in Networked Space Journal of Law and Society, Vol. 30, pp. 187-216, June 2003 Andrew Murray University of London - Department of Law Abstract:
      The Internet is often described as inherently free from regulation; a space where freedoms and liberties are guaranteed by the design of the network environment. The naivety of this view has, however, been exposed by commentators such as Shapiro, Reidenberg, and Lessig who have clearly demonstrated the inherent regulability of networked space. The question no longer is: can networked space be regulated? but rather, how and by whom is it regulated? This paper examines the regulation of rights in networked space. Property rights and rights to free speech, or free expression, are examined in relation to a number of issues that have emerged in the networked environment, or cyberspace. Its aim is to examine whether the embryonic regulatory structure of cyberspace, which has the advantage of starting with a completely clean slate, is sufficiently sympathetic to the unique qualities of this fledgling jurisdiction.
    A Pig in a Python: How the Charitable Response to September 11 Overwhelmed the Law of Disaster Relief Indiana Law Review, Vol. 35, June 2003 Robert Katz Indiana University School of Law Abstract:
      The terrorist attacks of September 11, 2001 ("9/11") inspired an unprecedented amount of charitable giving while imposing extraordinary burdens on the charities that received these gifts. It is generally thought that donors outperformed charities at their respective tasks. This Article locates some of the difficulties that charities encountered in two latent tensions within the legal regime that governs charitable organizations in general, and disaster relief organizations ("DROs") in particular. Charities hold donations in trust or a trust-like arrangement whose terms are formed through donative transactions within the parameters set by charity law. Such arrangements can be strained when donors demand or expect charities to act in ways that exceed the bounds of what is legally charitable. Another clash can occur when donors ask a charity to act at odds with its broader mission or principles. The outpouring of charitable giving after 9/11 exposed both these tensions on a grand scale. This Article examines the predicament of oversubscribed 9/11-specific DROs that sought to distribute funds to 9/11 victims who were not financially distressed. It then examines the predicament of general DROs that sought to reconcile an institutional commitment to inter-disaster equity with the desire of some donors to target their gifts towards 9/11 victims. The Article demonstrates how, through legislative and executive intervention, almost all of these entities were either permitted or pressured into distributing their post-9/11 receipts to 9/11 victims. It remains to be seen whether this experience has caused any long-term change or damage to charity law principles developed over the course of centuries in more placid times.
    Environmental Protection and Economic Well-Being: How Does (and How Should) Government Balance These Two Important Values?Robert Stavins Harvard University - John F. Kennedy School of Government Abstract:
      The organizers of an Aspen Institute conference have identified what they characterize as "the critical conundrum" - how business, government, and communications media balance the competing values of economic growth and a healthy environment. In this paper, prepared for discussion at the conference, I focus on government policy, and ask how government integrates economic concerns into its development of environmental policies. In addition, I ask whether and how government should carry out such integration of economic and environmental concerns. I consider two dimensions of environmental policy, which are closely interrelated but conceptually distinct: (1) what is the appropriate (and actual) degree of government activity; and (2) what form should (and does) government activity take. In this brief essay, I attempt to define the scope of these questions, and suggest criteria that can be used to evaluate responses.
    Trial Rights and Psychotropic Drugs: The Case Against Administering Involuntary Medications to a Defendant During Trial Vanderbilt Law Review, Vol. 55, January 2002 Dora Klein Cahill Gordon & Reindel LLP Abstract:
      This paper explores the legal problems that arise when the government undertakes to render a criminal defendant competent to stand trial, by administering involuntary psychotropic medications. Among these problems are the infringement of the defendant's trial rights, such as the right to receive assistance of counsel and to confront witnesses, as well as interference with the defendant's ability to testify and to present evidence of a mental illness. This paper explores these problems with special reference to the case of Russell Weston, who has been charged with murder in the deaths of two Capitol police officers and who spent more than three years in a federal correctional facility while the District of Columbia federal courts decided whether the government could administer involuntary medications for the purpose of rendering him competent to stand trial. The paper concludes that because the unfair prejudice resulting from involuntary medications cannot be cured, the government should be prohibited from administering involuntary medications to a defendant during trial.
    'Separate Can Never Be Equal': Sex Segregation, Racial Desegregation, and the Law, 1969-1977 Serena Mayeri Yale University Abstract:
      This paper examines efforts by several Southern school districts to implement sex segregation schemes as part of their racial desegregation plans. Proposed as an antidote to white fears about racial integration - and particularly, about interracial intimacy and marriage, or "miscegenation" - sex segregation was considered, as late as 1969, to be constitutionally unproblematic. When a smattering of school districts began to separate male and female students just as they were forced to integrate black and white children, courts asked only whether their plans were motivated by "racial discrimination" as opposed to "legitimate educational purposes." Over the course of the 1970s, as feminists developed legal tools to fight sex discrimination, the legal debate over sex segregation in racial desegregation plans shifted from an exclusive focus on race and fears of interracial sexual contact, to a recognition of the sex discriminatory intent and effect of sex segregation. Meanwhile, the activism of African American parents and students revealed how the legal categories "race discrimination" and "sex discrimination" failed to encompass all of the diverse harms local people saw in sex segregation.
    Limits of the Classic Method: Positive Action in the European Union After the New Equality Directives Harvard International Law Journal, Vol. 44, No. 2, Summer 2003 Daniela Caruso Boston University School of Law Abstract:
      The European Union's member states are currently implementing two new directives, prohibiting discrimination on such grounds as race, ethnicity and religion. Both directives allow for positive action - a European version of affirmative action confined to "soft," non-quota measures arguably reconcilable with the canon of individual equality. Based on time-honored EC provisions on gender discrimination, the European Court of Justice has already scrutinized, and occasionally prohibited as in breach of EC individual rights, states' positive action in favor of women. The Court is now likely to extend the same mode of scrutiny to the forms of discrimination contemplated by the new directives. Against this development, this Article argues for a reconceptualization of positive action. Rather than exceptional aberration from the paradigm of individual equality, affirmative action in both soft and hard mode is an identity-sensitive mechanism for the reallocation of resources, to be placed along a continuum of redistributive techniques. Identity-based redistribution measures are already known to both EC and state legal actors, in ways that a traditional individual-rights discourse both fails to capture and succeeds at hiding. At the present stage of integration, states' most significant redistributive policies are mostly exempt from judicial review. States should therefore be able to experiment with affirmative action in favor of minorities within national constitutional constraints and in light of local equilibria, but with no supranational review. The Open Method of Coordination - a "soft" instrument of EU governance recently applied to the fight against social exclusion may provide states with proper EU guidance in matters of identity-based policies.
    Managerialism, Legal Ethics, and Sarbanes-Oxley Section 307 Law Review of the Michigan State University-Detroit College of Law, Forthcoming Stephen Bainbridge and Christina Johnson University of California, Los Angeles - School of Law and Independent Abstract:
      Prepared for a conference on the Sarbanes-Oxley Act (a.k.a. the "Public Company Accounting Reform and Investor Protection Act" of 2002), this Article focuses on the professional responsibility rules promulgated by the Securities and Exchange Commission under Section 307 of the Act. According to the theoretical model of corporate governance espoused by all business corporation statutes, a corporation is to be run by its board of directors for the benefit of its shareholders. In practice, however, corporations frequently are run by their top managers for the benefit of those managers. A number of recent trends have empowered boards of directors vis-a-vis management. As this Article's review of the statutory text and its legislative history demonstrates, Congress intended the Sarbanes-Oxley Act to further that trend. We further demonstrate that Section 307 should be understood as part of the Act's overall anti-managerialist intent. Congress sought to enlist legal counsel in strengthening the board. Specifically, Congress directed the SEC to create an up the ladder reporting requirement pursuant to which a firm's legal counsel would report evidence of misconduct to the board of directors, thereby redressing one of the information asymmetries between boards and managers. This Article argues that, as a normative matter, Sarbanes-Oxley Section 307 was well-intentioned. As a practical matter, however, Section 307 seems unlikely to effect significant changes in corporate governance. In our view, the nature of legal practice, the largely unchanged relationship between lawyers and managers, and the problematic approach taken by the SEC to implementing Section 307 suggest that the new legal regime is unlikely to result in significantly better information flows within the corporate hierarchy.
    The Relationships between Mental Health and Substance Abuse Treatment and Juvenile Crime Alison Cuellar, Sara Markowitz and Anne Libby Columbia University - Department of Health Policy and Management , Rutgers, The State University of New Jersey - Department of Economics and University of Colorado at Denver - Health Sciences Center Abstract:
      he purpose of this paper is to examine the effectiveness of mental health and substance abuse treatment in reducing crimes committed by juveniles. The observed high correlations between crime, substance abuse and poor mental health suggests that factors which reduce substance abuse and improve mental health may also be effective in reducing criminal activities. This paper uses detention data in conjunction with substance abuse and mental health treatment data for youth enrolled in the Colorado state foster care program. We analyze the impact of treatment in delaying or preventing this group of at-risk youth from engaging in criminal behavior. Results show a negative effect, i.e., longer duration before detention, for youth who receive treatment and for youth in areas with high treatment rates.

Conference Announcement: 10th Annual Interdisciplinary Conference on the Environment
    10th International INTERDISCIPLINARY CONFERENCE ON THE ENVIRONMENT BOSTON, USA , JULY 1-4, 2004 Boston Park Plaza Hotel & Towers CALL FOR PARTICIPANTS (Deadline for Registration: April 30, 2004) The Interdisciplinary Environmental Association (IEA), in conjunction with Assumption College, invites you to participate in the 10th International INTERDISCIPLINARY CONFERENCE ON THE ENVIRONMENT open to environmental practitioners, academics, students and all interested persons regardless of background. You may participate as panel and/or workshop organizer, presenter of one or two abstracts or papers, chair, moderator, discussant, or observer. The deadline for abstract submission and participation is April 30, 2004. All papers will pass a blind peer review process for publication consideration in the INTERDISCIPLINARY ENVIRONMENTAL REVIEW. For more information, please contact us as follows: IEA, Kevin L. Hickey & Demetri Kantarelis Conference Co-Chairs, Economics & Global Studies Department Assumption College, 500 Salisbury Street Worcester, MA 01609-1296, USA TELEPHONE: Hickey (+ 508-767-7296), Kantarelis (+ 508-767-7557) FAX: + 508-767-7382 E-MAIL: (L. Hickey ), (Kantarelis ) WEB:

Copynorms and Anonymity Whether the RIAA likes or not, the key to the problem of peer-to-peer (P2P) filesharing of copyrighted music is a shift in copynorms--the informal social attitudes towards copying of copyrighted material. So long as copying is socially acceptable, it seems unlikely that the RIAA's litigation offensive can suceed. On the one hand, even hundreds of lawsuits cannot create a significant deterrent effect. And on the other hand, to the extent that P2P users fear legal sanctions, they may well be driven to new P2P technologies that are costly or impossible for the RIAA to police. Saul Hansell of the New York Times reports Crackdown May Send Music Traders Into Software Underground. Here is an excerpt:
    [H]undreds of software developers are racing to create new systems, or modify existing ones, to let people continue to swap music — hidden from the prying eyes of the Recording Industry Association of America, or from any other investigators. "With the R.I.A.A. trying to scare users around the world, the developer community is pumping up to create networks which are safer and more anonymous," said Pablo Soto, a developer in Madrid who designed the software for two file-sharing systems, Blubster and Piolet. Some experts wonder if the industry's efforts will create more trouble for it than ever. "The R.I.A.A. is breeding antibiotic-resistant bacteria," said Clay Shirky, a software developer who teaches new media at New York University.
For more, see Copynorms and Litigation Costs and Lichtman on the RIAA Litigation Offensive.

Sunday, September 14, 2003
Housewarming The Curmudgeonly Clerk has moved to new digs. Update your links to:

The Immortals
    Introduction Brian Leiter has an excellent post entitled Which philosophers will be read in 100 years? and Chris Bertram follows up with Philosophical immortality on Crooked Timber. Here is how Leiter formulates the question: "[W]ho among philosophers of the 20th-century, including those recently lost to us, will students of philosophy still be reading at the end of the 21st-century, not simply for reasons of historical interest, but because they are really "giants"? "Brian's bottom line: "I'll wager on Rawls, and, with less confidence, on Quine and Kripke." Chris says, "My money is on Rawls and Parfit." Others mention David Lewis, Donald Davidson, and Ludwig Wittgenstein. And dozens more, J.L. Austin, Donald Davidson, Kurt Goedel, Alonzo Church, and on and on, would surely be added by others.
    Some musings on the difficulty of the question
    • Leiter's question really has two parts. The first part is pure prediction: "who will students of philosophy still be reading?" The second part is evaluative: "reading, because they are really 'giants'? The second part of the question invites sectarian answers. If you are in the debates and have a position, it becomes difficult to believe that anyone you think is off on the wrong track is a true giant. Thus, Brian and Chris both focus on philosophers in the Anglo-American tradition, whereas philosophers on the continent would be likely to give a different list. Surely Heidegger would figure prominently, and likely Habermas would assume the position that Rawls does on the lists of English-speaking philosophers. In my opinion, the true giants have qualities that makes their work transcend partisan debates about philosophical doctrines. Hobbes is one of the greatest political philosophers, even though almost no one in contemporary political philosophy works on a Hobbesian program (as opposed to the scores who work on Hobbes interpretation).
    • The question is also complicated, because of a structural change in the nature of philosophy. Most of the greats, those we place in the canon, were not professional philosophers. Even Kant worked in a university organized in a vastly different fashion than those in which we now dwell. In my opinion, we are still far too close to the twentieth century to see how history will judge the fruits of the intense professionalization and specialization that characterized the twentieth century. There is, of course, no guarantee that the basic forms of academic organization that we take for granted will persist. In another century, it is possible that the full-time philosophical academy will have shrunk back, from tens of thousands of professionals to hundreds or even dozens. There is simply no guarantee that wealthy societies will continue to give 18-22 year olds a subsidized four-year party forever. (Excuse the exaggeration!) And in retrospect, the twentieth century may look like a golden age or an era of obsessive nit picking.
    • And there are other possibilities as well. Elite universities on the model of Oxford, Harvard, Frankfurt, and the Australian National University are still limited to only a handful of nations. Even in Europe, support for professional philosophy is far weaker in Italy and Eastern Europe than in the UK or Germany. If the third world becomes more like the first world, the globalization of the elite university might result in dozens of new elite institutions throughout the world and literally thousands of new research universities.
    • But the greatest complication stems from the fact that we really aren't in a position to judge how good contemporary philosophers are. Because we don't know how their arguments will look, when juxtaposed against the work that has yet to be done. Frege is a good example of a philosopher whose position in the canon now seems secure, but who would not have been likely to have blogged as one of the greats in the year following his death. What seems like an obscure, dead-end sidetrack, may become the main line of philosophical development. Will Wittgenstein's reputation continue to fade or will his contemporary recess come to be seen as a blip? Will Quine's program come to be seen as a dead-end diversion or will there be scads of Neo-Quineans? Or will it be some obscure figure, some contemporary Frege, that comes to be seen as the great figure of the twentieth century? And of course, it is possible (in my opinion, very unlikely) that the continental/Anglo-American split will be viewed in a radically different way in 100 years, leading to the subordination of most of the figures on the lists that English speaking, post-analytic philosophers would draw up in the early twenty-first century.
    The Immortals of Legal Theory
      I've barely mentioned one of the most important features of twentieth-century philosophy--intense specialization. If this feature of the sociology of the academy persists, it will surely influence the answer to Leiter's questions. Philosophy of law and legal theory are, of course, specialties or even subspecialties within the academy. And it is difficult to get a broad view of the question: "Who are the immortals of twentieth century legal theory?" The broad view is difficult because the legal academy tends to be linguistically isolated. (Laws are written in the venacular, and legal scholarship follows.) The broad view is difficult because legal theory (although centered in the legal academy) is strongly interdisciplinary, with important centers in philosophy, politics, economics, and sociology. And, of course, all of the difficulties that attend the immortals question in philosophy apply to legal theory as well.
      Nonetheless, one might venture a guess or two about the candidates for immortality. I am going to give a rather ecumenical, interdisciplinary, translinguistic list, but, of course, my list will be biased (by my own training, language, and national origins) and incomplete.
      Who from the twentieth century will students of legal theory read one hundred years from now, not just because they are of historical interest, but because they truly made an important contribution? Here are some possibilities:
      • Oliver Wendell Holmes, Jr.--who would be on the nineteenth century list as well.
      • Karl Llewellyn.
      • Hans Kelsen.
      • H.L.A. Hart.
      • Niklas Luhmann.
      • Ronald Coase.
      • Richard Posner.
      • Joseph Raz.
      • Ronald Dworkin.
      Of course, there are figures primarily associated with other disciplines that are also giants in legal theory. This list might include figures like John Rawls, Friedrich Hayek, and Jurgen Habermas. And I have not included the names of those who worked primarily in some particular field of the laws of a particular nation (or group of legally related nations). To take just one example, I have not listed figures like Alexander Bickel, who might become immortals of American constitutional theory.
    And what about the immortals of philosophy? I am hardly in a position to judge. Quine, Rawls, and Wittgenstein would be on my personal list. Taking a less parochial view, I would add Habermas and Heidegger from twentieth-century continental philosophy. My guess is that in one-hundred years the list will be longer. The twentieth-century was the first time in human history that literally tens of thousands of very smart people worked on philosophical problems for most of their waking hours--with all of the advantages of modern technology--try writing a really big book with a quill pen or traveling four hundred miles by horse to consult a library. In the twentieth century, there was a lot of low hanging philosophical fruit. Much of it was plucked. History will remember.

Ryan Reviews Posner Alan Ryan reviews Richard Posner's Law, Pragmatism, and Democracy at the New York Times. Here is a taste:
    [Posner's] target is the ''formalist'' view of law, which says that courts should always ask one question only: what does the law require? In the formalist view, there will always be a single answer, and the task of judges is to declare it. The present Supreme Court is addicted to presenting its decisions in formalist terms. But, Posner unflinchingly insists, although the court eventually made the right decision in Bush v. Gore, it gave such an incoherent and unconvincing account of what it was doing that it ultimately impaired its own authority. Conversely, in Clinton v. Jones, the court made a mistake that a pragmatic judge would not have made, because that decision opened the door to the whole sorry farce of the impeachment of President Clinton.
And here is another nice bit:
    The founding fathers, Posner says, did not want to set up a democracy but a mixed government. That is in fact what they created -- with monarchical elements in the presidency, aristocratic elements in the Senate and Supreme Court and democratic elements in the lower house. The whole thing was intended to be a balance of interests in the way Cicero said successful republics must be. Some of us have said for 40 years that what we call ''representative democracy'' is what an earlier age understood as elective aristocracy. It is good to have Posner on our side.
Worth reading in full.

Legal Theory Calendar
    Monday, September 15
      At Loyola Law School of Loyola Marymount Unversity, Frederick Tung presents an internal workshop entitled Mixed Metaphors: The Disconnect Between U.S. Corporate Charter Competition and Issuer Choice in International Securities Regulation.
      At UCLA, Larry Levine (Democratic Campaign Consultant), Allan Hoffenblum (Republican Campaign Consultant), and Dan Lowenstein (UCLA) present The Politics of the Recall Election.
      At NYU's faculty workshop series, Mark Geistfeld presents. Title?
    Tuesday, September 16 Wednesday, September 17 Thursday, September 18 Friday, September 19
      At the University of Texas, Randy Barnett (Boston University) presents Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas.
      At William and Mary, the Institute of Bill of Rights Law is hosting the sixteenth annual Supreme Court Preview, with a host of constitutional law luminaries.
      At the University of North Carolina's philsophy Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.
      At UCLA, Neil Netanel (Texas) presents Copyright's Paradox: Property in Expression/Freedom of Expression.
      At Georgetowns IP series, Jim Speta (Northwestern University School of Law) presents The Missing Piece of the 1996 Telecommunications Act: Accelerating Local Competition.
      At Tulane's philosophy series, Sharon Lloyd (University of Southern California, Philosophy) presents Machiavelli at Our Table..
      At Boston University's philosophy colloquium, Susan Okin (Stanford University) presents Multiculturalism and Feminism: No Simple Question, No Simple Answers.
      At the University of Arizona's philosophy colloquium series, Chandran Kukathas (Political Science, University of Utah) presents Exit and Gender.
      At Oxford's Somerville College, the Southern Association of Ancient Philosophy meets through September 20. The themes is conference is Pre-Platonic Philosophy, with special reference to Pre-Socratic Philosophy.
      At MIT, Michael Smith (Australian National University) presents External Reasons.
      At William and Mary, the Institute of Bill of Rights Law, is hosting the sixteenth annual Supreme Court Preview.

Legal Theory Lexicon I am experimenting with some weekend features for Legal Theory Blog. This week I am trying out the Legal Theory Lexicon, which will provide a very short introduction to a term, concept, or distinction that is important to contemporary legal legal theory. This series is intended mostly for law students, and especially for first year law students with an interest in legal theory. Here is the first installment, in what I hope will become a regular feature:
    Ex Ante/Ex Post If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction.) The terminology comes from law and economics, and here is the basic idea:
    • The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism.
    • The ex ante perspective is forward looking. From the ex ante point of view, we ask questions like: What affect will this rule have on the future? Will decision of a case in this way produce good or bad consequences? Again, roughly speaking we associate the ex ante perspective with policy and welfare. The ex ante perspective in legal theory is loosely connected with consequentialist (or utilitarian or welfarist) approaches to moral theory. In general jurisprudence, we might associate the ex ante perspective with legal instrumentalism (or legal realism).
    Of course, this very basic introduction to the distinction is oversimplified. For example, a fairness-based theory of torts might consider future consequences in assessing legal rules, and even utilitarian legal theories must use ex ante information when evaluating particular cases.
    Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly.
    If you are a first-year law student, you might make a habit of asking yourself questions like the following:
      Is the rule in the case I've just read, just or fair from an ex post perspective?
      Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?

Welcome to the Blogosphere . . . to Stephen Bainbridge's new blog, called Corporation Law and Economics.

Saturday, September 13, 2003
Legal Theory Bookworm Last week, I recommended a classic work of legal theory, H.L.A. Hart's The Concept of Law. This week my choice is a contemporary work, that has the virtue of giving a peek into state of the art analytic jurisprudence in a slim and readable volume. The author is Julie Dickson, who is Fellow and Tutor in Law at Somerville College, Oxford--and is, of course, affiliated with the Oxford's jurisprudence and legal philosophy program--perhaps the best of its kind in the world. The book is Evaluation and Legal Theory (another online source is here). Here is a quick summary of Dickson's book:
    If Raz and Dworkin disagree over how law should be characterised, how are we to go about adjudicating between the rival theories which they offer us? To what considerations would those theorists themselves appeal in order to convince us that their accounts of law are accurate and successful? Moreover, what is it that makes an account of law successful? Evaluation and Legal Theory tackles methodological or meta-theoretical issues such as these. The book does not claim to solve the many mysteries of meta-legal theory but does seek to contribute to and engender rigorous and focused debate on this topic.
The debate between Raz and Dworkin, which has raged for decades now, is at the center of contemporary analytic philosophy of law. Dickson's book gives you a state of the art view of many of the important issues, and Dickson makes many new and interesting moves of her own. Highly recommended!
By the way, the publisher of Dickson's book is Hart Publishing, which has a very fine legal theory list.

Download of the Week This week's recommendation is Frank Michelman's workshop paper, titled Brown v. Board of Education and The South African Constitution, which he presented on Thursday at Yale's Legal Theory Workshop series. Most readers of LTB know that Michelman is one of the most respected figures in the legal academy and one of the few who has transcended disciplinary lines and reached audiences in political theory, political philosophy, and beyond. Here is an excerpt from his paper:
    Are the U.S. and South Africa, at this moment, similarly situated with respect to constitutional choices respecting de facto classifications by race? In our leading case of Washington v. Davis, the Supreme Court expressed concern that treating de facto racially differentiating laws as constitutionally suspect would bring hordes of ordinary -- the Court seemed to think indispensable -- laws under strict scrutiny. The same worry holds in South Africa, of course, but with a vengeance. There, the worry is that every non-racial law designed to contribute to the dissolution of entrenched patterns and structures of social and economic advantage/disadvantage -- patterns and structures that, owing to apartheid-era laws and practices, are both race-based and class-based in an indissoluble mix -- will come under a thick cloud of constitutional-legal doubt and attendant political obloquy. We are talking here about an indefinite range of non-racial measures ostensibly designed as remedial with respect to class -- but always, then, with respect to race as well, because the two hardly can be disentangled in the public mind at this point in South Africa's history: a sharply progressive income or inheritance tax, say, or a general law converting insecure land tenures into secure ones (thereby detracting from the landlords= property rights), or a land-redistribution program, cast in non-racial terms, that requires farmers to accept what they regard as pittances in exchange for what someone (not they) regards as surplus acreage.
Michelman is the Robert Walmsley University Professor at Harvard University, and has written more really famous stuff than I can list here. On a more personal note, Michelman was one of two contracts teachers I had in my first year of law school. The other was Lea Brilmayer. It made for an interesting year. Semester one, with Brilmayer, was ex ante; semestetr two, which Michelman, was ex post. Michelman was a passionate teacher, and his passion for justice is close to the surface of most of his writing. Enjoy!

Priest on the Market for Judicial Clerks George Priest (Yale Law School) has posted Reexamining the Market for Judicial Clerks and other Assortative Matching Markets on SSRN. Here is the abstract:
    For many decades, scholars have puzzled over why the market for judicial clerks has been characterized by increasingly early bidding, with interviews and offers extended at progressively early points in a student's law school career. An important article published recently by Jolls, Avery, Judge Posner and Alvin Roth reported the results of a study the authors conducted of judges and clerks documenting the many ways in which the market operated inefficiently. In their view, the clerk market corresponds to other markets studied chiefly by Roth that show timing disturbances claimed to be market failures. The authors recommended adoption of a modified matching program, similar to the program that matches medical residents with hospitals. This paper reanalyzes the clerkship market and the other markets studied by Professor Roth from the standpoint of the costs and benefits of information acquisition. It shows that, far from market failure, the use of time as a currency in the market, represents the working out of market forces where other, more traditional terms of trade - in particular, price - are unavailable. The paper also shows that virtually all of the other markets studied by Roth that show timing peculiarities are characterized by restraints on the use of price to clear the market.

Garnett on the New Federalism Richard Garnett (University of Notre Dame - Law School) has posted The New Federalism, The Spending Power, and Federal Criminal Law (forthcoming Cornell Law Review, Vol. 89) on SSRN. Here is the abstract:
    It is difficult in constitutional-law circles to avoid the observation that we are living through a "revival" of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly "revolutionary" Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I and may promote policy goals that might lie beyond the reach of its enumerated powers merely by attaching conditions to the money it spends. Thus, talk of "revolution" notwithstanding, the Spending Power continues to provide practically limitless opportunities for the national government to shape policy at the state and local levels of life and government. This Article considers whether and to what extent Congress may use its Spending Power - standing alone, or in conjunction with the Necessary and Proper, or "Sweeping," Clause - to create, prosecute, and punish federal crimes. In particular, it examines the challenges to a particular federal anti-corruption statute, and concludes that, even if the Commerce Clause is understood to convey to Congress almost plenary regulatory authority, the power of the purse is not the power to police. That is, a generally applicable federal criminal statute cannot be regarded as a spending condition, and not even the Sweeping Clause is a license for "hungry dog" criminal jurisdiction. What's more, the expansion of federal criminal jurisdiction through spending is inconsistent with the structures explicitly created and reasonably implied by our Constitution, with the values these structures were designed to advance, and with the liberties they were intended to protect. The Article's doctrinal claims cohere well with leading themes in contemporary constitutional law. There are, for example, rich connections between the Article's arguments about conditional spending, the Sweeping Clause, and criminalization, on the one hand, and contemporary debates in First Amendment law relating to government speech, forum analysis, and expressive association, on the other. In addition, the understanding of the Spending Power defended in the Article serves not only as a complement to, but a crucial component of, the renewed emphasis on mediating institutions and civil society that has been provocatively identified by Professor John McGinnis as the enduring legacy of the Rehnquist Court. The Article closes with the suggestion that whatever "formalism" might be found lurking in its arguments has a worthy pedagogical function as it helps to instill, perhaps, what the "settled disposition on the part of the people in favor of local diversity and prerogative" and the "disciplined love of liberty that transcends the desire for immediate gratification," both of which are required for a "truly robust federalism."

Friday, September 12, 2003
Preview of Coming Attractions & Kudos to Peter Northup On Saturday, I will post the Download of the Week and the Legal Theory Bookworm. And on Sunday, the Legal Theory Calendary and an experimental feature, Legal Theory Lexicon.
And by the way, last week's download of the week was a paper by Philip Pettit, given at the NYU Colloquium in Law, Philosophy, and Political Theory. Peter Northup is blogging this famous colloquium series over at Crescat Sententia. Here is his report on Pettit's paper, Akrasia: Collective and Individual. Peter is doing all of us a great service by blogging from the colloquium. I'm going to give an excerpt, but unless you have read the paper or the preceding portions of Peter's excellent report, this may seem a bit dense:
    One broad avenue of critique, starting with a question posed by Dworkin, was an attempt to get at what really counts as a valid intentional state for a group. Pettit's "p, if p then q, q" options aren't really the sort of things that groups typically act on. Often groups specifically *avoid* giving reasons for their actions, precisely because they can't agree on the reasons themselves. That is to say, when groups decide things one at a time, can't they always extricate themselves from an apparent discursive dilemma by saying, "well, no, this isn't *exactly* Q; or we didn't *really* agree to the general principle if P then Q; you read more into our decision than was really there"? Pettit's response to this was that while, certainly, not all groups feel this need for handing down coherent judgments, some--self-unifying cooperatives--do; indeed, many feel that doing so is part of their institutional mission. Courts, for example, must do more than simply say "A wins, B loses;" they must give some hint of *why*, or they fail to provide guidance and stable expectations. So, while it's true that even a SUC will rarely face options as stark as P, if P then Q, Q, it will build up an accretion of decisions that will make other decisions unacceptable in the face of logical coherence.
How marvelous! I look forward to more reports from Northup!

Birondo at Arizona Today at the University of Arizona's philosophy colloquium, Noell Birondo does an internal workshop entitled Reasons for Action and the Virtues of Character.

Updated: Volokh's Defense of Intellectual Property
    Incentives and the Case for Intellectual Property Eugene Volokh has a very clear, well-argued defense of intellectual property over at the Conspiracy. Volokh's argumentative strategy focuses on the similarities between the case for property rights in tangible property and the case for property rights in intellectual property--putting incentives to invest at center stage. Volokh's exposition is marvelous, and this portion of his argument is very persuasive.
    Rival versus Nonrival Consumption But there is a difference between property in resources (land, chattels) and intellectual property. That difference, as Volokh explains with great lucidity, concerns rivalrousness. Consumption of tangible resources is rivalrous--my using a plot of land interferes with your consumption of the land. Consumption of intellectual property is nonrivalrous--my making a copy of an MP3 file does not significantly interfere with your ability to make a copy.
    The Well, Take One Volokh then provides a wonderful example that illustrates how consumption of resources can be nonrivalrous (in a sense):
      Imagine that there are a few hundred farmers living out in relatively well-irrigated countryside. Each farmer can dig a well, which will amply serve the farmer and many nearby farmers; that's just the property of a well -- even a small well provides lots of water, much more than one farmer would need. Moreover, the water table is huge, and the farmers aren't going to exhaust it. But, it turns out, the well takes a lot of money to dig (the money goes for renting equipment and paying laborers). Say that you create a well on your property, and start charging your neighbors, who don't have such wells, for access to it. Many of your neighbors are willing to pay; your well is closer and more convenient than other competitor wells. But some others just come and take the water for free. "This water is nonrivalrous," they say. "If I take the water, I'm not going to interfere with your or your customers' right to use it, nor will I really interfere with any work you do on your land on the way to the well." You'd be upset, but that's not my concern. My concern is that if this starts happening, and other neighbors see that they can take water without paying, other farmers won't drill as many wells: They'll know that if they do spend the money to dig the well, they probably won't be able to recover this investment. Maybe they'll find some less effective and more expensive ways of getting payment (for instance, they may invest more money into putting up very high-tech fences -- technological self-help rather than reliance on law), but this will still mean many fewer wells built, and much more expensive water. Even for the nonrivalrous good, destroying the right to exclude has taken away much of the incentive to invest. It hasn't taken away all the incentive; even destroying all property wouldn't take away all the incentive to invest effort. But it has taken away a lot, likely enough to make society on balance considerably worse off.
    Club Goods Economists use a bit of jargon to refer to this situation. The well, an economist would say, is a club good. You can think of a club good as an intermediate case between a pure public good and a pure private good. Pure public goods have two characteristics. Consumption is (1) nonrival and (2) nonexcludable. By nonexcludable, economists mean that if the good is made available, no one can be excluded from consumption. Clean air might be an example. With a club good, is possible to exclude, but consumption is only partially rivalrous, e.g., rivalrousness only kicks in when a threshold is exceeded. An example is a film shown in a theater, where it is possible for the good to be priced (exclusion can be practiced) and for a number of people to share the good without diminishing each other's consumption of it. The optimal size of a club is that which maximizes the group's joint utility. If too many people try to crowd into a theater, the quality of the experience is impaired. The pricing strategy for a club good is usually a membership fee. Once you pay the fee the good is free for all members of the club, but others are excluded.
    The Well, Take Two So let's go back to Volokh's example of the farmer in the dell with the high capacity well. (Let's assume that this well is located right on the edge of the farmer's property, so that neighbors can draw from it without having to enter on the farmers land, interfering with other uses.) The well is a club good. If too few neighbors use the well, there is a net loss of welfare (because neighbors are forced to use other, more expensive, sources of water). The classic solution to this problem is to create a club. If you join, you can draw as much water from the well as you want. If you don't join, then you are excluded. If the price is too high, the well will be underutilized. If the price is too low, the well will be overutilized--either it goes dry or long queues diminish the utility of the well for all. (In Volokh's example, it might be the case that the well would never be overutilized because of costs not included in the price of club membership. For example, even if membership in the club was free, it might be the case that transportation costs would naturally limit the number of users so that the carrying capacity of the well was not exceeded.)
    Intellectual Property Is Not a Club Good And this is where I take issue with Volokh's argument. Intellectual property is not a club good. Take MP3 files. When a new song is released, the CD is ripped and MP3 files are made available via P2P systems. The CD is a physical resource--it is traditional tangible property. The internet connections of the many users of P2P networks are also tangible resources--they are also property. But the "intellectual property," the information that constitutes the MP3 file, is not a pure private good, because consumption is nonrivalrous. (Consumption of the CD is rivalrous. Consumption of the internet connection is rivalrous. But these are not the intellectual property.) Here comes the crucial move. Moreover, the intellectual property is not a club good. Why not? Because there is no optimal size of the club. Unlike wells and movie theaters, there is no net social welfare gain that derives from limiting the number of consumers through pricing. If too many people crowd into a theater or too many people attempt to use a well, there is a net loss of social welfare. If everyone who wants to do so listens to a song, there is a net gain of social welfare.
    And What Are the Implications? Volokh's core argument was that intellectual property rights create incentives to produce intellectual property. That argument is unaffected by the club-goods argument I've just made. But in addition to his core argument, Volokh made another move. His move was prompted by the fact that consumption of intellectual property is nonrivalrous and hence that the case for intellectual property is different than the case for property in tangible resources. His move was to point to cases in which consumption of tangible resources is, in a sense, nonrivalrous. He made this move by using examples like movie theaters and water wells. But these examples are examples of club goods. Intellectual property is not a club good. Of course, the incentive-for-investment argument still holds, for pure-private goods, for club goods, and for intellectual property. But Volokh's argument does not succeed insofar as he attempts to show that the case for property in tangible resources that are club goods is really the same as the case for intellectual property.
    Read Eugene Volokh's very fine post! And for Volokh's reply, go here and for my further thoughts scroll up or click here.

McGinnis at Alabama At the University of Alabama School of Law's faculty colloquium series, John McGinnis (Northwestern) presents The Political Economy of International Antitrust Harmonization.

Ghosh on the Pubic Domain Shubha Ghosh does an internal workshop at SUNY Buffalo on Culture, Economics, and the Public Domain, with comments by Jose Plehn-Dujowich.

Leiter Reports on Philosophy Departments Moves Over at the Leiter Reports, Brian both reports and comments on major moves in philosphy. From the legal theory perspective, important are:
  • Stephen Perry's move from Penn to NYU (primarily in law).
  • Jefferson McMahan from Illinoin (Champagn-Urbana) to Rutgers (New Brunswick).
  • Frances Myrna Kamm from NYU to Harvard.
  • Robert Audi from Nebraska to Notre Dame.
  • John Deigh from Northwestern to Texas.
  • Andrei Marmor to USC.

Conference Announcement: Midwest Political Science Association
    MPSA's 62nd Annual National Conference, April 15th - April 18th, 2004
    Janet Box-Steffensmeier (Ohio State University), David Canon (University of Wisconsin), Program Chairs This year, we will hold the 62nd Annual National Conference of the MPSA at the Palmer House Hotel in Chicago, IL from Thursday, April 15th through Sunday, April 18th, 2004. The Palmer House Hotel is one of the oldest hotels in America, and is located in the center of the city, a few blocks from the Art Institute, shopping and restaurants. To make things more convenient for conference attendees, we have reserved an even larger number of meeting rooms and hotel rooms, which allows us to hold the entire event in one hotel. Paper/Poster/Informal Roundtable Proposals. The MPSA provides an excellent opportunity for scholars to present their research in a spring conference and receive helpful, cogent feedback. The deadline to submit proposals to present a paper in a traditional format or in a poster session is October 10th, 2003. All proposals must be submitted on-line at: . In order to submit a proposal, you will need to have a login and password, and if you are a current or lapsed MPSA member, you can look up your login and password at that link. If you are new to the MPSA, you can still submit a proposal without becoming a member, and the MPSA will assign you a login and password at the same link. As always, scholars interested in serving as a discussant or panel chare are encouraged to submit a proposal to serve in these capacities. A list of the program chair and the section heads for the conference is also available on the MPSA website: . Informal Roundtables. In addition to posters, panels and roundtables, we will now be providing a new format in which people can present their research - informal roundtables. All of the informal roundtables will take place in one or two large ballrooms, where there will be numbered roundtables distributed around the room. As is the case with a poster session, there will be many concurrent informal roundtables that take place in the ballroom. Authors are assigned to a roundtable, and the people who are interested in that topic will sit down at the roundtable for a brief presentation from the author followed by informal discussion among the group. Additional details are available on the MPSA website, though it is important to note that this format is very common in other disciplines and it is generally very well received. Related Groups. A number of related organizations also host panels at the MPSA conference: . If your organization is interested in hosting panels at the MPSA, please contact William Morgan about this opportunity There is no charge for this service. Job Placement. Whether you are from a department that is recruiting faculty members or an organization interested in hiring well trained scholars, the MPSA conference can help with your recruiting efforts. Employers and applicants can provide their information to the Placement Center and can then arrange times to meet and talk during the conference. Exhibit Hall. We use the largest exhibit hall at one of the largest hotels in Chicago. Whether you are looking for books to use in the classes you are teaching, are interested in finding books for your own use, or have prepared a manuscript, we have a large number of publishers and academic organizations who exhibit at the conference. Organizations or publishers interested in exhibiting at the conference should contact the MPSA office for more information . Receptions/Meetings. Many organizations and departments take the opportunity to hold receptions during the MPSA conference, other groups hold business meetings during the conference. The MPSA charges no fees for this, however the rooms are made available on a first-come, first-served basis. You may reserve a room by completing and returning the Room Reservation form:

Call for Papers: Campaign Finance after Federal Election Commission v. McConnell
    The Northern Kentucky Law Review at the Salmon P. Chase College of Law is currently seeking participants for its Spring 2004 Symposium, “Campaign Finance Reform After Federal Election Commission v. McConnell.” This physical Symposium is tentatively scheduled to take place in the Cincinnati metropolitan area on Saturday, February 14, 2004. Papers presented at the Symposium (and perhaps several additional papers) will be published in a special Symposium issue of the Northern Kentucky Law Review to be released in Summer 2004. (The Law Review editors understand that publication deadlines may be affected if the Supreme Court's forthcoming decision in Federal Election Commission v. McConnell is delayed unduly). In recent years, more than 300 lawyers and academics have attended each of the Northern Kentucky Law Review's public symposia. In addition, participants in this year's Symposium will enjoy an opportunity to be among the first academics to publish scholarly commentary on the Supreme Court's forthcoming decision in Federal Election Commission v. McConnell. The Law Review will pay travel, food, and lodging expenses for all participants in the physical symposium. Scholars interested in participating in the Symposium (or, alternatively, in submitting articles for publication in the Symposium issue of the Law Review, without participating physically) should send abstracts, drafts, or proposals to the Symposium Editor, Ruth Tincher at: Ruth Tincher, Symposium Editor Northern Kentucky Law Review Salmon P. Chase College of Law, Northern Kentucky University Nunn Hall Highland Heights, KY 41076 Phone: (859) 572-5444 Email: Alternatively, please feel free to direct any questions or comments may to contact me directly. --Kenneth Katkin Assistant Professor of Law Salmon P. Chase College of Law 561 Nunn Hall Northern Kentucky University Highland Heights, KY 41099 (859) 572-5861 phone (859) 572-5342 fax

Conference Announcement: Values and Virtues
    Values and Virtues: Aristotelianism in Contemporary Ethics
    30th April-2nd May 2004 UNIVERSITY OF DUNDEE Department of Philosophy West Park Centre, University of Dundee, Scotland Description:
      The theme of this international conference will be Aristotle’s continuing influence on our society’s ethical thinking, which remains profound even when subterranean. Like the man who realised one day that he'd been speaking prose all his life, typical members of our society can often be made to see that their ethical thought and action are, in crucial ways, unwittingly Aristotelian: the phenomenon has been well documented by Aristotelian writers such as Philippa Foot and Rosalind Hursthouse. Meanwhile within the Academy, no one in contemporary philosophical ethics can afford to ignore Aristotle. Many writers who would officially distance themselves from Aristotle and his contemporary followers are nonetheless indebted to him, sometimes in ways that they do not even realise. Furthermore, much of the finest work in recent practical philosophy has been overtly and professedly Aristotelian in its inspiration. Within an increasingly rich and diverse literature, we may perhaps pick out three particularly noteworthy themes: virtues and values, and our knowledge (if that is the name for it) of virtues and values. These will be the themes of this conference. The aim is to provide a platform for some of the most important, interesting, and accessible writers in current debate about Aristotle's ethics and Aristotelian or virtue ethics-- or more broadly, abo ut Aristotle's general approach to the normative-- to present and discuss cutting-edge ideas in an accessible way. The conference will take place in the pleasant and comfortable surroundings of the West Park Conference Centre, in the heart of Dundee's West End. It will happen at the beginning of May-- the ideal time of year to visit this part of the world: typically, north-east Scottish weather is surprisingly warm and dry in May, and the sunsets over the Tay and the Perthshire hills west of Dundee are long, spectacular, and late. (N.B. the conference organisers take no responsibility for weather conditions during the conference.)
    Provisional Programme
      Friday 30 April 2004
        4 onwards Arrivals, registrations 5-7 Keynote address: Christine Swanton (University of Auckland, NZ) 730 Conference dinner
      Saturday 1 May 2004
        0900-1020 submitted papers 1040-1200 John Skorupski (University of St Andrews) 1300-1420 Theodore Scaltsas (University of Edinburgh) 1430-1550 Paul Russell (University of British Columbia) 1600-1720 submitted papers
      Sunday 2 May 2004
        0900-1020 submitted papers 1040-1200 Sarah Broadie (University of St Andrews) 1300-1420 Antony Duff (University of Stirling) 1430-1550 Adam Morton (University of Oklahoma) 1600-1720 Linda Zagzebski (University of Oklahoma) 1830 Conference ends
    Conference Registration
      To register for the conference simply say so in writing to:
        Dr Timothy Chappell Department of Philosophy University of Dundee Dundee DD1 4HN Scotland, UK
      enclosing a cheque for £80 made out to "The University of Dundee". Please state in your letter whether you have any special dietary needs. There is a reduced registration of £40 if you are a graduate student in philosophy and wish to take advantage of the Analysis Trust's subsidy grant (for which we are very grateful). Under this scheme, the Analysis Trust will subsidise 50% of attending graduate students' total costs to attend the conference. If you are a graduate student and would like to take advantage of this scheme, please tell the conference organiser, Dr.Timothy Chappell. Accommodation will be in local hotels or bed and breakfasts. A list of these, together with travelling instructions and a map, will be sent out to all who register for the conference. Lunches and morning and afternoon tea and coffee will be provided.
    Submitted Papers
      We have deliberately left three slots vacant in the programme and we invite the submission of papers for presentation in these slots. These papers could be by graduate students, by professional philosophers or classicists, or by other interested parties. While we will be a little biased towards graduate students in our selection of papers for presentation, the main criteria for selection will simply be (1) philosophical merit and (2) relevance to the conference's themes.
      Those presenting submitted papers will be eligible for a reduction in their registration fees. Papers should be submitted to Dr Chappell at the address below before Christmas Day 2003. Decisions on submitted papers will be announced in January 2004.

Thursday, September 11, 2003
Lichtman Update: The RIAA Litigation Offensive Doug Lichtman's Wall Street Journal editorial, which proposes immunizing individuals who download or upload copyrighted music from individual civil liability, is getting quite a reaction. Lichtman got the Wall Street Journal to grant permission to post the whole editorial, and Will Baude has done that on Crescat Sententia. And Lichtman emailed some comments on my post from yesterday, which now appear at the end of the main post here. More on this in a day or two--in the meanwhile, read the very interesting op/ed.
More on the RIAA On this same general topic, I strongly recommend a post entitled "RIAA Blowback" by Doc Bug.

Review of Feinberg Russ Shafer-Landau (University of Wisconsin, Madison) has a review of Joel Feinberg's Problems at the Root of Law (Oxford University Press, 2002) ISBN 0195155262, on Notre Dame Philosophical Reviews. Here is a taste:
    Feinberg is undoubtedly one of the preeminent social and legal philosophers of the twentieth century. His work is justly praised for an enviable variety of virtues, all of which are on display in this collection of essays. He writes wonderfully well, in a lucid fashion, with a minimum of jargon. He is one of those philosophers whose aim is to utilize and preserve, so far as possible, the distinctions latent in moral common sense. He tackles central problems, as well as many of the more “applied” issues (here, entrapment, punishment for failed attempts, and funding for the arts) that capture the public’s fancy. The range of sources he relies on is remarkable–history, fiction, poetry, current news magazines and legal opinions, in addition to the usual professional philosophical suspects. These are all introduced with a light touch, dropped in at just the right spot to seal a point or helpfully illustrate a problem or view under scrutiny.
And one more bit:
    The first essay focuses on natural law theory, and the role of judges who must interpret immoral laws. Feinberg uses this entry as a vehicle for testing the malleability of natural law theory, and concludes with an invented dialogue between a natural law theorist and legal positivist that is pedagogically extremely useful. (It has been excerpted in the textbook that Feinberg and Jules Coleman edit, Philosophy of Law 6ed. (Wadsworth 2000).) Feinberg does not take sides in this paper; despite comments and asides, made elsewhere in his writings, to the effect that legal positivists have the upper hand, here Feinberg is content to explore the possibilities on the natural law front. He recognizes the pull of the Austinian/Benthamian contention that immoral law may yet be valid, but does what he can on behalf of natural lawyers. As he sees it, the debate between the two camps has very little practical import as it applies to the moral duties of private citizens and jurors. Only when it comes to the moral obligations of judges might a choice make some real difference. In this context, Feinberg helpfully reviews and expands upon some work of Robert Cover’s (in his oft-cited book, Justice Accused (Yale 1975)). Feinberg seems to like the suggestion that he places in the mouth of his fictitious natural lawyer–that (i) if there are any moral principles that must form a part of human law, then they are few in number and, in content, highly abstract maxims of justice; and (ii) these are to be used to countermand the results of ordinary judicial interpretation only in cases in which such interpretation would lead to “flagrant, gross and outrageous injustice and utterly crazy, pointless unreasonableness” (35). On the theoretically crucial point, however–on whether the antecedent in (i) is satisfied–Feinberg remains mum.
Amazon, here I come.

Franck at NYU Thomas Franck (NYU School of Law) presents Presumptions at Law: An Enquiry into the Existence of a Global Common Sense at the NYU Colloquium in Legal, Political and Social Philosophy, the extraordinary series run by Ronald Dworkin and Thomas Nagel.

Michelman at Yale Frank Michelman is presenting Brown v. Board of Education and The South African Constitution today at Yale's Legal Theory Workshop series.

Gross at UCLA on Indian Identity At UCLA's Legal History Workshop, Ariela Gross (University of Southern California) presents Between Race and Nation: Indian Identity on Trial.

Simester at Boston University Andrew Simester is presenting today at Boston University's faculty workshop series.

Ayres at Michigan At the University of Michigan's law and economic series, Ian Ayres (Yale) workshops Why Not?: How to Use Everyday Ingenuity to Solve Problems Big and Small.

Davies at ANU At the Australian National University's Research School of Social Sciences's philosophy seminar, Martin Davies (RSSS) presents Epistemic Projects and the Abstract Space of Justifications

Wednesday, September 10, 2003
Updated Updated Version: Lichtman on the RIAA Litigation Offensive
    Update: Doug Lichtman's response to this post is now appended at the end.
    As I mentioned yesterday, the RIAA litigation offensive has begun with an impressive sounding but actually paltry 261 lawsuits. Doug Lichtman (University of Chicago) has a provocative and characteristically smart editorial in the Wall Street Journal (subscription required) entitled KaZaA and Punishment. (Update: Lichtman got the WSJ to give permission to post the whole editorial, which you can get here on Crescat Sententia courtesy of Will Baude.) Lichtman makes some very interesting points. He begins with one of the core problems in the RIAA's attempts to litigate directly against Napster successors like KaZaA:
      Courts have been reluctant to impose liability on Grokster and its ilk for the simple reason that these entities do not directly commit the alleged bad acts. Just as a steak knife can be used both to facilitate the consumption of a good meal and to separate a businessman from his wallet, Grokster and KaZaA have both legal and illegal applications.
    Lichtman is referring, of course, to the "substantial noninfringing use" defense, created by the Supreme Court in Sony Corp. v. Universal City Studios. Even in the Napster case, there was a credible argument that the Napster was capable of substantial noninfringing users, despite the fact that it was dedicated to MP3 files. But subsequent generations of P2P programs do not have this limitation--they can be used to share any sort of digital content. Famously, the original Gnutella website didn't even mention music--emphasizing recipes as the kind of file that users might want to share. Recognizing this problem, Lichtman argues for a an alternative to litigation against individuals:
      The better approach from a public policy perspective would be for the law to immunize these individuals from liability and facilitate instead meaningful litigation between the bigger parties. Such an approach would bring before the court those entities best positioned to articulate the complicated tradeoffs inherent in applying copyright law to the Internet. That is, KaZaA and the music industry can both afford to hire fancy lawyers who can in turn lay bare central issues; and litigation between these two behemoths is sure to at the same time attract the helpful attention of public advocacy organizations like the Electronic Frontier Foundation who can further ensure that the public interest is represented in court. Individual defendants, by contrast, lack the resources necessary to put up this good fight, and they face enormous pressure to preserve their bank accounts by quickly and quietly settling.
    Lichtman is absolutely right to emphasize the importance of litigation costs (see also Copynorms and Litigation Costs), but I find his suggestion somewhat puzzling. Here are some of my questions and comments for Lichtman:
    • On what basis is the "meaningful litigation between the bigger parties" to be resolved? This question is especially urgent in light of Lichtman's proposal to immunize individuals who violate copyright by filesharing.
    • It will be especially awkward for the RIAA to advance contributory or vicarious infringement theories (e.g. that KaZaA is helping individuals to violate the copyright laws), if Congress has determined that the individuals are not really doing anything worthy of legal sanction. Moreover, the "substantial noninfringing use" defense is an entrenched part of copyright law. Saying "let the court's decide" is, by itself, not much of a policy recommendations.
    • It is not clear that the P2P genie can be put back in the bottle by attacking P2P services like KaZaA. Why not? Because P2P does not require a centralized, for-profit firm in order to flourish. If KaZaA and all of its cousins were shut down, P2P could continue. How? Through freeware and shareware programs. Such programs already exist. Think Gnutella. Think Freenet. And some 19 year-old like Shawn Fanning is probably already creating a slick new interface for one of the P2P engines that is already in the public domain. If the commercial services are shut down, the noncommercial P2P space will continue to grow.
    • And the next generation of P2P programs (or the one after that) are likely to take a clue from the elegant and brilliant design of Freenet. Anonymity and strong encryption will be built into the engine, making the RIAA's efforts to sue individuals even more difficult.
    • This is why I think Lichtman's approach is fundamentally wrongheaded. Here is the scenario that Lichtman's suggestion could produce. The RIAA starts its litigation offensive, causing many users to shift from KaZaA to P2P programs with built in encryption and anonymity protection. Then, Congress intervenes and immunizes individual users from civil litigation. The RIAA battles it out with P2P enterprises like KaZaA in the courts, perhaps with legislative abridgment of the "substantial noninfringing use" doctrine. The industry wins, but in the meantime, users have begun to shift to a new generation of P2P programs. KaZaA is shut down, and the shift is completed, with the consequence that the industry is in a far worse position than at present. Why?
        First, because P2P encrypted, anonymous P2P makes the identification of individual defendants far more difficult. The RIAA's current strategy works because it can easily obtain the IP numbers of those who share files, and it can easily inspect the content of such files.
        Second, because the immunity from civil liability that Lichtman proposes will entrench the current copynorms, entrenching filesharing even more firmly into the social fabric.
    And here is Doug Lichtman's thoughtful reply:
      It certainly might be true that this genie will never return to her bottle. But I would love to see that play out, as I have a little more faith that effective legal responses to Grokster and KaZaA, combined with legitimate alternatives like iTunes, might indeed turn the tide. My point in the editorial is that, if effective legal responses are possible with respect to the intermediaries, that is the better approach, rather than dragging 261 college students through the mud. You ask also about what I imagine when I reference meaningful litigation. I have written about this at length here, but how about starting with a negligence rule that asks whether Grokster took reasonable precautions in the design of its technology? If the technology could have been set up so as to discourage illegal activity but not interfere much legitimate behavior, it seems sensible to require the adjustment going forward and to hold liable the firm that could have, but did not, avoid the problem up front. That's the standard tort rule, and it could work well in this setting too. Sony, in my view, got that wrong. A party that intentionally sticks its head in the sand should be held to account for the harm it causes. My understanding is that is what Grokster did. If that is true, that one should be an easy case.
    I may have a further comment or two later, but for now, read Lichtman's Wall Street Journal op/ed! If necessary, go out in the real world and find it at a newstand!

The Distributive Justice Game Check this out! Via Crooked Timber.

New Weekend Features on Legal Theory Blog On Saturdays, Legal Theory Blog features the Download of the Week and the Legal Theory Bookworm. On Sunday, you will find the Legal Theory Calendar, and starting this Sunday, a new weekend feature, the Legal Theory Lexicon, a very brief introduction to some important concept or idea in legal theory.

American Law and Economics Review The Fall 2003 issue is now available on line to subscribers. Here are the articles:
    Michael J. Trebilcock The Law and Economics of Immigration Policy Abstract:
      This article notes dramatic differences in growth over recent decades in the international movement of goods, services, and capital, on the one hand, and people, on the other, and also notes that there appear to be substantial potential global welfare gains from increased personal mobility, thus raising important positive and normative puzzles about the relatively restrictive nature of many countries' immigration policies. It points out that most receiving countries apply quotas to family class immigrants, independent (economic) immigrants, and offshore refugee claimants. These policies are critiqued from economic, communitarian, and liberal perspectives, and the case is developed, at least from economic and liberal perspectives, for much more liberal immigration policies. However, it recognizes that fiscally induced immigration is a legitimate concern and argues for a mandatory private market insurance regime to cover the risk of claims by immigrants against most noncontributory social programs for a minimum period of time, comparing this proposal with other mechanisms for controlling fiscally induced immigration.
    Lawrence Katz, Steven D. Levitt, and Ellen Shustorovich Prison Conditions, Capital Punishment, and Deterrence Abstract:
      Previous research has attempted to identify a deterrent effect of capital punishment. We argue that the quality of life in prison is likely to have a greater impact on criminal behavior than the death penalty. Using state-level panel data covering the period 1950–90, we demonstrate that the death rate among prisoners (the best available proxy for prison conditions) is negatively correlated with crime rates, consistent with deterrence. This finding is shown to be quite robust. In contrast, there is little systematic evidence that the execution rate influences crime rates in this time period.
    Hashem Dezhbakhsh, Paul H. Rubin, and Joanna M. Shepherd Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data Abstract:
      Evidence on the deterrent effect of capital punishment is important for many states that are currently reconsidering their position on the issue. We examine the deterrent hypothesis by using county-level, postmoratorium panel data and a system of simultaneous equations. The procedure we employ overcomes common aggregation problems, eliminates the bias arising from unobserved heterogeneity, and provides evidence relevant for current conditions. Our results suggest that capital punishment has a strong deterrent effect; each execution results, on average, in eighteen fewer murders—with a margin of error of plus or minus ten. Tests show that results are not driven by tougher sentencing laws and are robust to many alternative specifications.
    Abraham L. Wickelgren Justifying Imprisonment: On the Optimality of Excessively Costly Punishment Abstract:
      The criminal punishment literature has focused on justifying nonmaximal punishments and the use of nonmonetary sanctions. It has not addressed why imprisonment, rather than cheaper forms of corporal punishment, should be the dominant type of nonmonetary sanctions. David Friedman (1999) recently hypothesized that, because convicts lack political influence, it is desirable to make punishment costlier than necessary to prevent policy makers from excessively punishing convicts. This article explicitly models this hypothesis and uses simulations to determine under what circumstances this hypothesis justifies using imprisonment rather than cheaper nonmonetary sanctions.
    Jeff Dominitz How Do the Laws of Probability Constrain Legislative and Judicial Efforts to Stop Racial Profiling? Abstract:
      Faced with pending legislation and litigation, numerous jurisdictions have begun programs to monitor a range of traffic stop outcomes, focusing on variation by race or ethnicity. Existing programs, however, ignore the unequal outcomes that motivate opposition to racial profiling. Statistical relationships limit the ability of public policy to equalize the various outcomes, even if officers do not engage in racial profiling to "any extent or degree." This article demonstrates relationships among five outcomes that are or should be considered when policy on racial profiling is formulated: search rates, find rates, thoroughness of search, rates of detention of the innocent, and rates of apprehension of the guilty. Once decisions are made as to how to balance desires for equality of each of these outcomes, problems remain that are common to statistical assessments of pattern- or practice-of-discrimination claims.
    Oren Bar-Gill and Omri Ben-Shahar The Uneasy Case for Comparative Negligence Abstract:
      This article questions, and in some contexts disproves, the validity of the efficiency justifications for the comparative negligence rule. One argument in the literature suggests that comparative negligence is the superior rule in the presence of court errors. The analysis here shows the analytical flaw in this claim and conducts numerical simulations — a form of synthetic "empirical" tests — that prove the potential superiority of other rules. The second argument in the literature in favor of the comparative negligence rule is based on its alleged superior ability to deal with private information. This article develops a general approach to liability rules as mechanisms that induce self-selection among actors. It then shows that self-selection can occur, not only under comparative negligence, but also under every other negligence rule. These conclusions weaken the efficiency explanation for the growing appeal of the "division-of-liability" principle within tort law and beyond.
    Max Schanzenbach Exceptions to Employment at Will: Raising Firing Costs or Enforcing Life-Cycle Contracts? Abstract:
      The common law doctrine of employment at will holds that, unless specified otherwise, the employment relationship can be terminated for any reason. Beginning in the mid-1970s, many state courts became willing to find exceptions to this doctrine. A possible benefit of this new approach is that it provides a third-party enforcement mechanism to implicit labor contracts. This article uses two large micro data sets on employee tenure and wages to evaluate the impact of exceptions to employment at will. Although the results suggest that exceptions to employment at will affected labor markets, there is little evidence that exceptions helped enforce implicit contracts.

Scholz at Florida State At Florida State, John Scholz (Epps Scholar, FSU Department of Political Science) workshops Water Conflicts and Local Policy Networks.

Tuesday, September 09, 2003
Welcome to the Blogosphere . . . to Philosophical Conversations, which features Trevor Maddock and Gary Sauer-Thompson. This is, I suppose, the time to confess my lingering affection for Frankfurrt School Critical Theory--in my deep dark past, you will even find this.

RIAA Lawsuit Offensive Begins
    The Litigation Offensive Amy Harmon of the New York Times reports 261 Lawsuits Filed on Internet Music Sharing:
      The recording industry filed 261 lawsuits yesterday against people who share copyrighted music over the Internet, charging them with copyright infringement in the first broad legal action aimed at ordinary users of file-sharing networks. The blizzard of lawsuits — which is expected to be followed by thousands more — is a turning point for the music industry, which has sought to avoid direct conflict with its potential consumers as it battles online piracy. But industry officials said they now believe that the only way to stem the widespread file-swapping is to make people realize they will be punished for participating — even in the context of an Internet culture where many forms of information are free.
    Hearts and Minds Harmon's story certainly won't help the RIAA win the hearts and minds of the public. The story features a picture of a distressed mother, and tellingly includes the following:
      "How are we supposed to know it's illegal?" said Vonnie Bassett, a bookkeeper in Redwood City, Calif., who said her 17-year-old son uses KaZaA. "Half the things on the Internet must be illegal then." Ms. Bassett, who was informed of the lawsuit by a reporter, said she had assumed that because Napster, the company that unleashed a wave of file sharing in 2000, was shut down, the new services must be legal. "Why don't they sue KaZaA?" Ms. Bassett added. "Why are they suing the people? That's the part I don't understand."
    . Of course, the music industry did sue KaZaA, but that lawsuit has not met with the success of the action against the Napster.
    Copyrights and Copynorms I've blogged before on the question whether the RIAA's litigation strategy is likely to be successful in the long run. It has two things going for it. First, there will undoubtedly be a deterrent effect. Some online filesharers are likely to decide that the legal risks are not worth the benefit. Second, there will also be an educative, norm-inculcating effect. Many users of file sharing services have convinced themselves that file sharing is legal, and the publicity surrounding the lawsuits will change the minds of some. But will that be enough? There is at least prima facie reason to doubt that the litigation offensive will succeed. Consider the following:
    • Even thousands of lawsuits is a drop in the bucket when tens of millions use file sharing services. Assume that being sued and settling creates an average cost of $10,000, and that the average user of a file sharing program has a 1 in 20,000 chance of being sued. (2,000 suits/20,000,000 users). That's 50 cents of expected cost. I think my calculations actually exaggerate the costs, but they come within an order of magnitude.
    • Users can shift to file sharing programs that mask the IP address of the user. The anonymity features of file sharing programs will become more sophisticated and effective as time goes on. Go here for an example.
    • To win the battle against P2P, the music industry must win the hearts and minds of the filesharing community. In other words, effective copyrights require effective copynorms. But will a litigation offensive be effective in convincing the community of P2P users that they should refrain from violating copyrights? It is surely too early to tell, but there are reasons to doubt the effectiveness of the litigation strategy, and even to believe that it may have the effect of causing a backlash.
    My prior posts on this topic include Copynorms, Copynorms and Litigation Costs, and Copynorms and Deterrence. And check out what Australian IP academic Kim Weatherall has to say here on her blog, Weatherall's Law.

More New Papers on the Net I'm catching up with a small backlog. Here the second installment of new papers for today:
    Shooting the Messenger: The Ethics of Attacks on Environmental Representation Harvard Environmental Law Review, Vol. 26, p. 417, 2002 Robert Kuehn University of Alabama - School of Law Abstract:
      Although there is considerable scholarship about a lawyer's duty to represent repugnant clients and about the moral nonaccountability of lawyers for the deeds of their clients, there has been limited discussion of attacks by attorneys on those who represent unpopular or controversial clients, and even less analyzing the ethics of such attacks. Articles on the ethics of environmental law practice make no more than passing reference to a lawyer's duty to respect the need for all points of view to be heard, and make no attempt to analyze the role of attorneys in attacks on providers of environmental representation. This article documents and challenges the propriety of attacks by attorneys on other lawyers providing environmental representation. The article begins by identifying some of the attacks and the justifications often given for such assaults. Because the attorneys making such attacks and others who have supported these tactics appear not to have considered the propriety of their behavior, the article then analyzes the legal ethics of such attacks by focusing on the formal rules of professional conduct. The article concludes by setting forth proposals for amending rules of professional conduct and law school policies to deter attacks on providers of environmental representation.
    Trustwrap: The Importance of Legal Rules to Electronic Commerce and Internet Privacy Hastings Law Journal, Vol. 54, April 2003 Peter Swire Moritz College of Law of the Ohio State University Abstract:
      This Article puts forward two claims and one proposed new term. The first claim, buttressed by new evidence in this Article, is that we have under-valued the importance of binding legal rules in promoting electronic commerce ("E-Commerce"). The second claim is that, in light of the demonstrated helpfulness of binding legal rules, the case for Internet privacy legislation in the United States is stronger than it was during the start-up period of E-Commerce during the 1990s. The new term, which is central to both of these claims, is the idea of "trustwrap"—the ways that merchants can wrap their transactions in visible, trust-inspiring ways when conducting E-Commerce. The idea of trustwrap arose for me in thinking about the Tylenol scare in the early 1980s, when cyanide was injected into bottles of the medicine. Johnson & Johnson responded by re-engineering every sale of Tylenol. Today, every bottle of pills has a plastic wrap around the outside of the bottle. Every bottle has a foil seal inside the cap. Inside the bottle, the medicine exists in tamper-proof caplets or tablets, rather than the earlier capsules into which the malicious person had injected the poison. I propose the term "trustwrap" to bring together the physical transactions of Tylenol and the virtual transactions of E-Commerce. For my proposed use of "trustwrap", the seller demonstrates in the course of the transaction that there are legal, technical, or other protections for the purchaser. Moreover, the term "trustwrap" invokes the "shrinkwrap" and "clickwrap" licenses of modern E-Commerce. Part I of this Article looks at three of the striking success stories of E-Commerce—the online credit card, the growth of "clicks-and-bricks" E-Commerce (companies that sell both on the web and in physical stores), and eBay. Each of these three success stories contrasts markedly with the predictions of the Internet pioneers of the mid-1990s. I argue that each success story has created effective trustwrap for online transactions. Notably, the trustwrap in each instance depends substantially on enforceable legal guarantees. This evidence from the success stories on the Internet shows at least a strong correlation with, and quite likely causation from, the sorts of legal enforcement that many observers thought would be irrelevant for Internet commerce. Part II of the Article explores the implications of Part I on the debate about Internet privacy legislation. Based on my own experience as privacy counselor for the Clinton Administration, the debates on Internet privacy have often asked whether a legislative or self-regulatory approach will be more effective at fostering trust and encouraging E-Commerce. The success stories in Part I undermine the common view that binding legal rules will interfere with E-Commerce. In addition, a careful examination of our experiences with Internet privacy suggests that legal protections for privacy are more likely to be beneficial now than they would have been during the start-up period of E-Commerce in the mid-1990s. In short, binding legal rules for Internet privacy may well spur E-Commerce and provide more effective "trustwrap" than self-regulatory alternatives.
    State Wiretaps and Electronic Surveillance After September 11 Hastings Law Journal Charles Kennedy and Peter Swire Morrison & Foerster, LLP and Moritz College of Law of the Ohio State University Abstract:
      This article examines the changing landscape for wiretaps and other electronic surveillance at the state level in the wake of the events of September 11. Based on available statistics, over two-thirds of law enforcement wiretaps in the United States in 2001 were authorized by state rather than federal judges, and there is evidence of significant under-reporting of state wiretaps. Part I of the Article explains the constitutional and statutory framework for government interception of: the content of a communication ("wiretaps"); to/from information (such as phone numbers or e-mail addresses); and stored communications records. Appendix A to the Article provides a survey and analysis of the interception, to/from, and stored records laws for all 50 states. Appendix B provides a survey of proposed and enacted changes to state laws in the initial period from September 11, 2001 to June 1, 2002. This research was performed on behalf of the Liberty and Security Initiative of the Constitution Project. Part II analyzes the proposed and enacted changes following September 11. Legislation principally addressed these issues: expanding the list of offenses eligible for interception orders; expanding the list of officials with wiretap authority; expanding the categories of persons who may execute wiretaps; authorizing roving and statewide surveillance; and expanding the types of communications and devices subject to interception. The conclusions in Part III highlight the weaker internal and external controls that apply to wiretaps and other electronic surveillance at the state level. At a formal/legal level, the Electronic Communications Privacy Act (ECPA) does provide that state wiretap laws may have effect only if they meet federal minimum standards for nature of the offense, minimization, and other features. Based on our review of state laws, however, we consider it likely that state wiretaps are systematically less subject to training requirements and other institutional controls on prosecutorial and police discretion. External controls are also likely more substantial at the federal level. Academics, the press, advocacy groups, and Congressional oversight have all provided important checks on any temptation by federal officials to overstep the limits of their surveillance powers. These oversight efforts are less developed in most states, and our research on state laws is intended in part to facilitate better understanding of how these laws in fact operate. A separate implication of this research concerns the interplay of federal and state surveillance law. Passage of the USA-PATRIOT Act in 2001 focused essentially exclusively on the scope of surveillance powers appropriate for federal officials. The preemption provision in ECPA, however, means that a change in federal law also permits an equivalent change in state law. Many of the bills recently proposed mirror the reduction of privacy rights in the USA-PATRIOT Act. In considering changes to federal surveillance law, the relatively weak internal and external oversight of state wiretaps is thus relevant. Even where sufficient controls can be created to justify actions by federal officials, the additional issue is whether appropriate safeguards will be created at the state level, where the large majority of wiretaps actually occur.
    Three Models of Group-Differentiated Rights Eric Mitnick Thomas Jefferson School of Law Abstract:
      Group-differentiated rights, or rights that vest on the basis of an individual's membership in a particular social or cultural group, are an increasingly common and controversial aspect of modern liberal legal systems. In justifying such rights, theorists have largely focused on demonstrating the conformity of group-differentiated rights with principles of liberal neutrality. In this paper, I suggest that group-differentiated rights present a further, largely unrecognized, potential moral cost from the perspective of liberal theory. Group-differentiated rights threaten to impede individual self-invention. The first section of the paper introduces the essential terms and structure of the contemporary debate over rights and group membership. The second section describes analytically the processes by which rights categorize persons and influence social identity. The third section then constructs a liberal theory of membership, the central precept of which is individual constitutive autonomy. The fourth section describes three models - ascription, affirmation and culturalization - of the process by which social and cultural groups and identities may be constituted by rights, and evaluates each model according to the principles which inform the liberal conception of membership previously constructed. The analysis demonstrates that while the group-differentiated form of right does indeed threaten individual constitutive autonomy, the true extent of any loss depends in significant part upon the particular model invoked.
    Left Libertarianism: A Review Essay Philosophy and Public Affairs, Vol. 32, No. 1, Winter 2004, Princeton University Press, Copyright Barbara Fried Stanford Law School Abstract:
      The publication in 2000 of Peter Vallentyne and Hillel Steiner's elegant two-volume collection of essays on Left-Libertarianism formally marks the emergence over the past two decades of a theory of distributive justice that seeks to harness the premises of the libertarian right to the political agenda of the egalitarian left. Its proponents have sided with the libertarian right in favor of a strong right of self-ownership, which - like those on the right - they have taken to imply (contra the left) that individuals have a right to the differential value of their talents. But they have sided with the egalitarian left in holding that individuals have no right to a disproportionate share of the external resources of the world - a view (borrowing further from the right) that they have housed in Locke's famous proviso that each may appropriate only so much of the world's resources as leaves others with "enough, and as good" a share. This marriage of self-ownership of one's talents with an egalitarian sharing rule for the external resources necessary to exploit them has led many left libertarians to quite egalitarian policy prescriptions - in many cases indistinguishable from what has issued from left/liberal egalitarian quarters. This review essay assesses the two halves of the left libertarian project: a commitment to self-ownership, coupled with a strong reading of the Lockean proviso. It argues that "self-ownership" cannot do the work that left libertarians have assigned to it, any more than it could do the cognate work for the right. As a result, left libertarians, like their counterparts on the right, are pulling some very thick conclusions out of some very thin premises, a process that leaves them the latitude to find in the principle of "self-ownership" pretty much whatever they are looking for. It argues as well that the robust interpretation of the Lockean proviso that left libertarians have deployed to distance themselves from the right assumes a view of fairness that threatens to collapse left libertarianism into more conventional strains of egalitarianism on the left.
    The Separation of Powers and the Constitutional Law of Sentencing Benjamin Priester Florida State University - College of Law Abstract:
      The paper analyzes the recent line of United States Supreme Court cases that has called into question the constitutionality of highly controversial contemporary sentencing laws such as mandatory minimum sentences and the Federal Sentencing Guidelines. A narrow majority in Apprendi v. New Jersey (2000) and a plurality in Harris v. United States (2002) evaluated these sentencing laws under the Jury Trial guarantee of the Sixth Amendment and, at least for the time being, approved of their constitutionality. The paper demonstrates that the Court’s interpretive struggle in these cases results from too narrow a focus on the Sixth Amendment and the allocation of responsibility between the trial jury and the sentencing judge. The paper argues that the constitutionality of these sentencing laws must be evaluated from a broader perspective: the separation of powers in constitutional criminal procedure. Rather than an issue of constitutional interpretation involving solely the Jury Trial guarantee, the validity of sentencing laws implicates the full range of the Constitution's provisions governing criminal procedure and their allocation of power to legislatures and prosecutors in addition to juries and judges. From this structural constitutional argument, the paper defends the constitutionality of most sentencing laws on the grounds that the separation of powers in criminal procedure imposes only a narrow restriction on legislative power to design statutory schemes by which convicted offenders are sentenced: a requirement that provisions that determine or enhance the defendant's maximum punishment be enacted, charged, and proven as part of the defendant's offense of conviction. Other sentencing laws, including mandatory minimums and the Guidelines, do not alter the defendant's maximum punishment when they are used to determine the defendant's particular sentence. Such laws therefore may be applied by the sentencing judge, rather than being found beyond a reasonable doubt by a trial jury, without violating the Constitution.

New Papers on the Net Here is today's roundup:
    Company and Takeover Law Reforms in Europe: Misguided Harmonization Efforts or Regulatory Competition? Gerard Hertig and Joseph McCahery Swiss Federal Institute of Technology (ETH Zurich) and Tilburg University Abstract:
      Despite recent developments in ECJ case law, the ability of EU firms to choose among corporate law regimes remains restricted. However, Member States have started to show interest in supplying competitive business forms and firms seem keen to use them. Ongoing reviews of EU governance and takeover law can be seen as an attempt to complete the set of minimum requirements that put a floor to a "race to the bottom." This paper suggests that most of the proposed harmonization, however, is likely to be ineffective or to promote bureaucratic uniformity rather than enable market-driven diversity. Indeed, disclosure, board structure and director liability proposals as currently structured are unlikely to satisfy the needs of shareholders. Moreover, reforms aimed at the establishment of a permanent structure providing advice on future EU regulatory initiatives and at requiring Member States to adopt director disqualification mechanisms are likely to result in excessive regulatory intervention. Similarly, many provisions of the proposed Takeover Bids Directive can be expected to hamper rather than enhance the development of a competitive corporate control market. By contrast, the authors recommend regulatory changes that facilitate private litigation, as this should be beneficial for shareholders and could enable regulatory competition without stimulating a "race to the bottom." Finally, the authors endorse a default arrangement for takeovers that would allow firms to choose to be governed by either the proposed Takeover Bids Directive or existing Member state law.
    Make It or Break It: The Break-Through Rule as a Break-Through for the European Takeover Directive? Peter Mülbert Johannes Gutenberg Universität Mainz - Department of Law and Economics Abstract:
      The break-through concept is the most recent idea to break the deadlock with respect to EU takeover legislation. As devised by the High-Level Group of Company Law Experts, chaired by the Dutch Jaap Winter, the break-through concept would do away with two of the most important types of impediments to takeovers within EU member states. The first part of the paper explores the break-through concept in some detail, particularly with respect to its premises, its two guiding principles – exclusive shareholder decisionmaking and proportionality, - and the justifications given by the Group for the proposed interventionist rules. The second part of the paper is dedicated to an analysis of the economic effects of the two guiding principles, and in particular of the proposed "one share one vote" - regime. While there is good reason to support the principle of exclusive shareholder decision-making with respect to takeovers the rationale for a strict "one share one vote" - regime is more difficult to defend given the mandatory bid rule as an another core element of European takeover legislation. In all, the economic analysis presented in this paper supports the view that given a mandatory bid regime there is no need for European takeover regulation to incorporate an all-encompassing break-through concept based on "one share, one vote." On the other hand, apart from raising some diffi cult new problems the analysis does not identify any compelling argument against the introduction of such a rule either. Thus, it remains to be seen whether the break-through rule dead-ends all efforts of introducing a European takeover regulation or, on the contrary, acts as a catalyst that enables the EU finally to break through to the adoption of a Takeover Directive. The EU Commission, at least, because of strong political resistance from various interested parties only adopted a somewhat watered-down version of the break-through concept in its most recent proposal for a takeover directive of 2 October 2002.
    Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer Journal of Science and Technology Law, Vol. 9, Winter 2003 Beth Noveck NYLS - Department of Democracy Design Workshop Abstract:
      "Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer" examines the failure of deliberative democracy on-line. In this essay, I argue that deliberative speech, rather than free speech, is essential to the participative practices of democratic life. Deliberation is a special form of speech structured according to democratic principles. New communications technology is uniquely suited to shaping communication and transforming private conversation into public deliberation. Notwithstanding the explosion of communication outlets, there is an absence of such tools. Therein lies the root of electronic democracy's stunted growth. Just as the design of a ballot changes the result of the election, so, too, does sophisticated communications technology shape democratic practice and transform political institutions. The future success of electronic democracy requires the construction of technical architectures conducive to the goals of deliberative democracy. This Article explores seven recent experiments using web-based technologies to do deliberation on-line. It describes what these experiments have attempted and analyzes the shortcomings inherent to their design. The Article also discusses a deliberative software design experiment ("Unchat") in which I have participated and addresses the success and failure of Unchat with reference to the definition of deliberative democracy put forward in the Article. In a previous era, lawyers had to be concerned with enacting appropriate laws to preserve democracy. The "cyber-lawyer," the legal thinker practicing in the digital age, is a midwife who has to know how to bring the values of democracy into the world of code and to design technology as well as regulation to promote democracy.
    The Sources of Federalism: Federalists, Anti-Federalists, and the Court's Quest for Original Meaning Peter Smith The George Washington University Law School Abstract:
      Although a debate continues to rage in the academy and on the Court about the propriety of originalism as a methodology of constitutional interpretation, in federalism cases both the majority and the dissent on the current Court appear to have embraced the approach. Yet their agreement ends there; the Court has consistently divided 5-4 in federalism cases. What explains the disagreement among Justices who appear to agree that the original meaning is also current meaning? This article presents the results of a study of citation patterns in federalism cases since 1970. The study demonstrates that the Court's current majority in federalism cases gives substantially more weight than does the dissent to Anti-Federalist views. To the extent that the majority relies on Federalist views in establishing the original understanding, it is substantially more likely than the dissent to cite Federalist statements that appear to have been made to allay Anti-Federalist fears about the power of the national government or that (at a minimum) demonstrate more solicitude for state autonomy. Conversely, the dissent is substantially more likely than the majority to cite as evidence of the original understanding the more unabashedly nationalistic views of Federalists; the majority rarely cites these nationalistic statements as evidence of original meaning, choosing instead to discount them as outside the framing mainstream, or to read them more narrowly or in a context that renders them more federalistic in nature. The results of the study have implications for originalism. Although proponents of originalism have defended the approach on the ground (among others) that it constrains judges' discretion to impose their own views under the guise of constitutional interpretation, the study suggests that judges seeking the original understanding are largely unconstrained in their ability to mold the historical record to serve instrumentalist goals.
    The State of U.S. Corporate Governance: What's Right and What's Wrong? Bengt Holmstrom and Steven Kaplan Massachusetts Institute of Technology (MIT) - Department of Economics and University of Chicago - Graduate School of Business Abstract:
      The U.S. corporate governance system has recently been heavily criticized, largely as a result of failures at Enron, WorldCom, Tyco and some other prominent companies. Those failures and criticisms, in turn, have served as catalysts for legislative change (Sarbanes-Oxley Act of 2002) and regulatory change (new governance guidelines from the NYSE and NASDAQ). In this paper, we consider two questions. First, is it clear that the U.S. system has performed that poorly; is it really that bad? Second, will the changes lead to an improved U.S. corporate governance system? We first note that the broad evidence is not consistent with a failed U.S. system. The U.S. economy and stock market have performed well both on an absolute basis and relative to other countries over the past two decades. And the U.S. stock market has continued to outperform other broad indices since the scandals broke. Our interpretation of the evidence is that while parts of the U.S. corporate governance system failed under the exceptional strain of the 1990s, the overall system, which includes oversight by the public and the government, reacted quickly to address the problems. We then consider the effects that the legislative, regulatory, and market responses are likely to have in the near future. Our assessment is that they are likely to make a good system better, though there is a danger of overreacting to extreme events.
    Shareholder Oppression & Divident Policy in the Close Corporation Washington & Lee Law Review, 2003 Douglas Moll University of Houston Law Center Abstract:
      The receipt of a dividend is perhaps the most basic method by which a shareholder earns a return on its investment in a corporation. Because of the dividend's importance, scholars have long focused their attention on the fundamental question of when judicial intervention into a company's dividend policy is warranted. Significantly, however, this academic focus has concentrated almost exclusively on the publicly-held corporation. In that context, a number of authorities have argued that there is little need for the judiciary to involve itself in compelling the payment of dividends, primarily because of the disciplinary effect of a well-established market. In the close corporation setting, however, this market-based rationale is wholly inapplicable. A close corporation, by definition, lacks a market for its stock. When close corporation dividend policy is at issue, therefore, a "hands-off" attitude by the judiciary makes considerably less sense. Although other scholars have previously made this observation, the academic discussion has not proceeded substantially beyond the observation itself. It is important, therefore, to return to the fundamental question and to consider it in the close corporation setting - i.e., when is judicial intervention into a close corporation's dividend policy warranted? To some extent, a consideration of this question has been aided by the development of the shareholder oppression doctrine. The doctrine of shareholder oppression attempts to safeguard the close corporation minority investor from the improper exercise of majority control. By identifying and protecting the "reasonable expectations" of close corporation shareholders, including the reasonable expectation of dividends, the oppression doctrine combats majority shareholder efforts to exclude a minority investor from the company's financial and participatory benefits. Although the doctrine usefully acknowledges that close corporation shareholders can have reasonable expectations of dividends, the doctrine provides no guidance on whether an asserted expectation is "reasonable," and thus enforceable, in the particular circumstances before a court. One could argue, therefore, that the shareholder oppression doctrine has simply rephrased the fundamental question. Asking whether judicial intervention into a close corporation's dividend policy is warranted, in other words, is functionally equivalent to asking whether a shareholder's expectation of dividends is "reasonable" in the circumstances. This article squarely addresses the issue of close corporation dividend policy and the question of when judicial intervention is warranted. More specifically, this article analyzes close corporation dividend disputes through the lens of the shareholder oppression doctrine. By examining when a shareholder's expectation of dividends is reasonable and enforceable, this article moves beyond the mere observation that close corporations require greater judicial scrutiny. Indeed, the article discusses the basic types of dividend disputes that arise in close corporations and provides guidance to courts for resolving such disputes.

24/7 Filibuster Bust From The Hill, news that the Senate leadership has abandoned plans to force a 24/7 filibuster. Here's a snipped:
    Senate Republicans have dropped plans to force Democrats into a genuine all-out filibuster on judicial nominations and have fallen into tactical confusion following Miguel Estrada’s withdrawal from consideration for a seat on the U.S. Court of Appeals for the District of Columbia last week. The plan to force round-the-clock debate on President Bush’s controversial nominations was abandoned because GOP leaders decided some of their own senior caucus members could suffer health problems while the Democrats might escape with minimal political damage.
And over at Town Hall, this op/ed on Estrada.

McCaffery on Tax Timing Edward McCaffery (University of Southern California Law School) has posted The Fair Timing of Tax on SSRN. Here is the abstract:
    The traditional understanding of broad-based tax systems contrasts an income tax with all forms of a consumption tax. The income tax, alone, includes the yield to capital in its base; consumption taxes do not. Simple financial analysis demonstrates the equivalence of the two most common classes of consumption taxation - prepaid, or wage-based, and postpaid, or sales taxes - under certain assumptions, most importantly including constant tax and interest rates between the periods in the model. Advocates of redistributive taxes insist on both progressive rates and an income base, in large part to tax the yield to capital; opponents clamor for flat-rate consumption taxes, often invoking Mill's celebrated argument against the income tax's "double taxation" of savings to support their case. Once progressivity is presumed, however - as its enduring popular appeal suggests it ought be - the traditional understanding is flawed. Asking a different timing question, "when, in a taxpayer's flow of funds, ought progressive taxes be imposed?," casts tax systems in a new light. The present tax system emerges as an onerous wage-based one. A progressive cash-flow consumption tax, in contrast, emerges as the best - most consistent and principled - tax on the yield to capital, under just the conditions in which it is fair and appropriate to tax such yield. This gives a further reason to support a progressive cash-flow consumption tax, sounding in reasons familiar to income tax supporters. A consistent progressive cash-flow consumption tax will lower the burden of taxation when capital transactions (borrowing, saving, and investing) are used to smooth labor earnings within or between lifetimes (or taxpayers), and will increase the burden of taxation when capital transactions are used to enhance labor earnings within or between lifetimes (or taxpayers). Critical reflection based on a near century of experience reveals such a tax to give form to attractive normative ideals. The new understanding helps to show that the traditional and most common arguments for consumption taxation are not compelling. The best, most appealing case for a consumption tax does not rest on simple "horizontal equity" models, nor on claims about the economic, consequentialist importance of savings on an individual or an aggregate social level. Rather it is claims of fairness, in a social contractarian sense in the manner of John Rawls and other liberal theorists, that argue for a properly designed consumption tax - in part precisely because of the way such a tax sometimes but not all the times burdens capital and its yield, and in greater part because such a tax points the way towards greater, more meaningful progressivity in tax. The new understanding of tax yields important insights into pressingly practical matters of tax policy and design, and opens up an important window to critique contemporary trends in tax reform. The battle in tax policy should not be over income versus consumption taxation - as it has been for centuries - but rather over what kind of consumption tax to choose. Failure to address this question head-on has led tax policy to move, seemingly inexorably, towards the wrong choice, with the fate of progressive, redistributive taxation hanging in the balance.

Gulati and Langevoort on Fraud by Hindsight at Georgetown At Georgetwon, Mitu Gulati and Don Langevoort present 'Fraud by Hindsight' in Securities Litigation: Intuitive Psychology, Hostility Towards Lawsuits, or Nothing But a Felicitous Phrase?

Robertson at Texas At the University of Texas, John Robertson presents Reproductive Technology in Germany and the U. S.: An Essay in Comparative Law & Bioethics.

Merkel at Washington & Lee At Washington and Lee's Faculty Workshop series, William G. Merkel (Oxford & Columbia) presents To See Oneself as the Target of a Justified Revolution: Thomas Jefferson and Gabriel's Uprising.

Monday, September 08, 2003
Hasen Blogging BCRA Today--Update Rick Hasen is blogging from the Supreme Court's argument in the BCRA case today. His first report is up on his marvelous Election Law Blog. Here is a snippet:
    [H]ere is my initial bottom line: Oral argument shed very little light on where the likely "swing" Justices in this case---Justices Rehnquist and O'Connor---stand on the constitutionality of the soft money provisions.
Must reading!

New Papers on the Net Here is today's roundup:
    Redefining Mental Disability in the Treasury Regulations Tax Notes, Vol. 100, July 28, 2003 Sarah Lawsky Cadwalader, Wickersham & Taft LLP Abstract:
      The regulations accompanying section 72 of the Internal Revenue Code, relating to penalties for early withdrawals from qualified retirement plans, contain an outdated definition of mental disability under which almost no one with a mental illness today could be found to be disabled. This definition is incorporated by reference in many sections throughout the code and regulations. This article looks at the definition of disability in section 72(m)(7) and its corresponding regulations and shows how the current law was applied in the recent case of Keeley v. Commissioner. The article then shows that current understandings of mental disability, as well as the history of the statute and its regulations, mandate revision of the regulations. The article concludes that the current language of the regulations allows courts some leeway in determining whether an individual is disabled, however, and that courts therefore need not feel constrained by the outmoded sections of the regulations.
    Does Relationship Banking Matter? Japanese Bank-Borrower Ties in Good Times and Bad Yoshiro Miwa and J. Ramseyer University of Tokyo and Harvard Law School Abstract:
      The Japanese "main bank system" figures prominently in the recent literature on "relationship banking." By most accounts, the main bank epitomizes relationship finance: traditionally, every large Japanese firm had one, and that bank monitored the firm, participated in its governance, acted as the delegated monitor for other creditors, and rescued the firm if it fell into financial distress. Yet all this has begun to change, continue these accounts. Japan deregulated its financial markets in the 1980s, and many firms abandoned their relational lender for market finance. As the main banks then lost their ability to constrain firms - as relationship banking unraveled - the firms gambled in the stock and real estate bubbles, the bubbles burst, and the firms threw the country into recession. Using financial and governance data from 1980 through 1994, we show that none of this is true. The accounts of the Japanese main bank instead represent fables, stories we collectively recite because they so conveniently illustrate the theories and models we hope to develop. Whether during the 1980s boom or the 1990s recession, they bore no resemblance to any aspect of Japanese corporate finance or governance.
    Building a Better Bounty: Litigation-Stage Rewards for Defeating Patents Joseph Miller Lewis and Clark Law School Abstract:
      Patent litigation's basic framework tilts decisively against a definitive court test of patent validity. A patent challenger who succeeds in defeating a patent wins spoils that it must share with the world, including all its competitors. This forced sharing undercuts an alleged infringer's incentive to stay in the fight to the finish - especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result. A litigation-stage bounty would correct this tilt against patent challenges, for it would provide cash prizes to successful patent challengers that they alone would enjoy. After briefly describing the free rider problem with inventions that patent law attempts to solve, this article details how the Supreme Court's decision in Blonder-Tongue creates an equally troubling free rider problem in the context of patent validity challenges. It then critiques two recent proposals directed at solving the free rider problem that undercuts patent challenges: an examination-stage bounty proposed by Professor Thomas, and a one-way fee-shifting rule more recently proposed by Professor Kesan. The article next proposes a new bounty, one that offers the benefits of the Thomas and Kesan proposals without their respective drawbacks. The proposed bounty would apply at the litigation stage, in an amount that varies as a function of the patentee's net profits from practicing the technology set forth in the asserted patent claims. In recognition that a patentee may assert a commercially significant patent before it has profited from practicing the technology claimed therein, it then introduces an independent alternative to the bounty - namely, a patent attack bloc, comprising actual and potential alleged infringers, that overcomes the free rider problem created by Blonder-Tongue with a narrowly drawn agreement to fund a definitive patent challenge to its conclusion. Finally, the article tries to answer the most likely objections to a litigation-stage bounty.
    Dead Reckoning: Demographic Determinants of the Accuracy of Mortality Risk Perceptions Jahn Karl Hakes and W. Viscusi Clemson University - Department of Economics and Harvard Law School Abstract:
      General patterns of bias in risk beliefs are well established in the literature, but much less is known about how these biases vary across the population. Using a sample of almost 500 people, the regression analysis in this paper yields results consistent with the well established pattern that small risks are overassessed and large risks are underassessed. The accuracy of these risk beliefs varies across demographic factors, as does the switch point at which people go from underassessment to overassessment, which we found to be 1,500 deaths annually for the full sample. Better educated people have more accurate risk beliefs, and there are important differences in the risk perception by race and gender that also may be of policy interest.
    The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof have Weakened the Presumption of Innocence Notre Dame Law Review, Vol. 78, May 2003 Steve Sheppard University of Arkansas - School of Law Abstract:
      The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant. This article presents the history of the reasonable doubt instruction in the United States. Examining the development of the instruction in the seventeenth and eighteenth centuries and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in the evidence. Further, the history describes twentieth-century changes in the meaning of the standard, particularly in response to the divorce of the instruction from a theory of knowledge and to changing definitions of reason. The most significant of these changes is to define reasonableness through emphasis on the assignment of reasons. The result of these changes has been both to lower standards of criminal proof and to diminish the autonomy of the juror as the finder of fact. This outcome is the opposite of that believed by the majority of the Supreme Court that made proof beyond a reasonable doubt a constitutional requirement in In re Winship. In particular, these changes in the standard may have altered the operation of the presumption of innocence, so that the defense now has the burden of proving the reasons for innocence. This result has all but escaped scholarly notice, although it is felt keenly by some judges, and is worthy of both further study and reform.
    Conservation through Collusion: Antitrust as an Obstacle to Marine Resource Conservation Washington & Lee Law Review, Vol. 61, 2004 Jonathan Adler Case Western Reserve University - School of Law Abstract:
      This article explores the tension between antitrust principles and conservation of the marine commons. Part I provides an overview of fishery conservation efforts in theory and practice. As a common pool resource, marine fisheries will fall prey to the "tragedy of the commons" unless consumption is limited to sustainable levels, whether through property rights, community norms, or government regulation. Part II briefly explains the antitrust concerns raised by efforts to restrict output, fix prices, or allocate territories. Although each of these actions may, in specific circumstances, facilitate conservation efforts, they are each presumptively suspect under antitrust law. Part III explores the conflict between conservation and antitrust in fisheries, focusing on cases in which competitors or government officials sought to prosecute fishing unions and other cooperative fishery organizations for antitrust violations. These cases illustrate that collective efforts by fishers to control exploitation of the underlying resources are presumptively illegal under antitrust law. This part also explores potential exemptions for certain types of cooperative institutions as well as the impact of antitrust concerns on the implementation of property-based fishery management regimes. Part IV then considers how antitrust concerns may inhibit conservation or other environmental goals in the contexts of oil production and pollution control. While the focus of this article is fishery conservation, the analysis is potentially applicable to other contexts in which antitrust law inhibits non-governmental common pool management efforts. Part V explores how conservation objectives might be reconciled with antitrust concerns. Insofar as antitrust doctrine is motivated by efficiency concerns, antitrust law need not be hostile to private efforts to conserve common pool resources. The doctrine of ancillary restraints provides a sound analytical foundation for approving at least some cooperative fishery conservation efforts under the rule of reason. Insofar as existing antitrust precedent forecloses such a result, statutory measures may facilitate private cooperative fishery conservation efforts. In either case, antitrust law should be made more hospitable to non-governmental conservation efforts.
Additonal papers of interest:

Electronic Publishing and Paper Journals
    Brian Weatherson has a very good post on Crooked Timber about the complex issues raised by posting digital papers while also pursuing publication in a print journal. Here are two interesting bits:
      First, I never post PDFs of an article as it will look in print to a freely accessible website. I know some people do this, and I think itÂ’s probably defensible, but I think thereÂ’s a plausible argument that the journal has a right (i.e. a moral right) to have a say over where those PDFs go. After all, it was their layout work that made it look like that. (In philosophy at least thereÂ’s still layout work done by journals - we donÂ’t send LaTeX files in ready to print.)
    . . . and
      What happens with articles that have been accepted, or even appeared in print, might be different. Several people keep available papers that have appeared in print, as the briefest scan through ChalmersÂ’s list will reveal. (Indeed, many people only post printed articles.) But itÂ’s not clear to me that journals couldnÂ’t fight back a little here. If I were running a journal I would consider asking writers to remove personal copies of papers from their websites once they had appeared in print, and if I did ask that it wouldnÂ’t be a throwaway line - I would make some efforts to enforce it. I certainly think journals (and book publishers) would be within their moral rights to do this, and itÂ’s hard to see how they would be out of their legal rights.
    My take on these issues is different than Brian's, reflecting (1) the structural differences between philosophy and law journals, and (2) the fact that I teach intellectual property law. Here are some reactions:
    • Almost all law journals are subsidized by law schools, reflecting their student editors and pedagogic function. By contrast, most philosophy journals are published by academic presses and float on their own bottom.
    • Almost every journal article is already available online via the two major legal electronic database services (Westlaw and Lexis/Nexis), which are increasingly global in scope.
    • SSRN has become the primary vehicle for electronic distribution of working papers encourages authors to post each paper twice, first as a working paper and second as a forthcoming paper. Many legal academics use the second post to put up a version of the paper that is in near final form, with citable pagination.
    Most law journals seem to have accepted and even endorsed this framework. There is a strong sense among legal academia that wide distribution of work is in the interests of all. Westlaw and Lexis/Nexis are not significantly threatened by free electronic distribution, because their primary target market is lawyers (not academics) and because they offer Boolean search capabilities that are far more powerful than those available either on SSRN itself or via Google. Given these differences, it is not surprising that my take on the moral and legal questions is a bit different than Brian's:
    • My practice is to post papers in near final form (or final form if available) on SSRN. In fact, if a journal won't permit this, I won't publish with them, unless they are offering some very great compensating advantage.
    • My view is that journals which discourage the posting of papers on the net in final form are, prima facie, acting contrary to the interests of the academic community. For some journals, however, retaining control over electronic publication may be perceived as crucial to their economic survival. I predict that this is a transition problem. Electronic journals can be run effectively at very low costs. The benefits to the academy of greatly enhanced distribution of academic work far outweigh the costs.
    • Brian is certainly correct that publishers can ask for the exclusive control of electronic publication. Moreover, they could refuse to print papers that have already appeared on the net in electronic form. On the other hand, if a publisher does not specifically bargain for the rights to exclusive electronic publication, those rights remain with the author. In my opinion, it is probably unwise for any academic author to bargain away exclusive rights to electronic publication, for reasons that will become clear in the next bullet point.
    • Academic publishing is clearly in a transitional phase. It is obvious that the Internet potentially provides a vehicle for the dissemination of academic knowledge that can massively reduce costs and increase accessibility. As this becomes increasingly clear, it is likely that academic publishing will change. Perhaps academic publishers will be nimble in their response to this new environment. Perhaps not. Anyone who grants the whole copyright in a paper to an academic publisher runs a substantial risk that they may lose the ability to use their own work in the future. Copyright includes the right to prepare derivative works--a right that is little understood by many academics and that potentially can act as block to the publications of future books and articles based on a copyrighted work. Today, academic publishers are usually generous in granting permissions and are almost universally conservative in their interpretation of their own rights. But these traditions are not legal guarantees. It is entirely possible that legal rights to academic work may end up in the hands of for-profit multinational corporations or, even worse, in legal limbo as a result of the bankruptcy of an academic press. Prudent authors should always retain control of the copyright to their works, granting only nonexclusive licenses to the academic publisher.
    Read Brian's very interesting post!

Strandburg on the Public Benefits of Patent Katherine Strandburg (DePaul University - College of Law) has posted What Does the Public Get? Experimental Use and the Patent Bargain. A very important topic! Here is her abstract:
    This article deals with the increasing tension between the tradition of protecting commercially valuable inventions through patenting and the need for a robust public domain of freely available technical information as a springboard for further research. The "experimental use exemption," permitting some unauthorized research uses of patented inventions, might be used to relieve some of this tension. However, the scope of the research exemption has been shrunk so far by recent Federal Circuit opinions that even basic university research is not excused from infringement liability. This article returns to the first principles of patent law -- the incentives to invent and to disclose -- and argues that the current narrow exemption is not giving the public the benefit of its patent bargain. In this article, I analyze the effects of disclosure and the incentive to invent on different types of inventions. The article concludes that, partly because of distinctions between types of inventions that I dub "self-disclosing" and "non-self-disclosing," it is possible to design an experimental use exception that "promotes the progress of the useful arts" more effectively than the current restrictive doctrine.

Schill at NYU Michael Schill is doing an internal workshop at NYU today. Topic anyone?

Korobkin at UCLA At UCLA Russell Korobkin presents Bounded Rationality and Unconscionability: A Behavioral Approach to Policing Form Contracts, (Link here. You need to click through to get to the page with the paper.)

Sunday, September 07, 2003
Affective Forecasting The New York Times has a very good piece on affective forecasting, the study of individual ability to predict the effect of particular events on future affective states. Oops, that was a lot of jargon. That is, "Can you predict what will make you 'happy'?" Here is a taste:
    To understand affective forecasting, as Gilbert has termed these studies, is to wonder if everything you have ever thought about life choices, and about happiness, has been at the least somewhat naive and, at worst, greatly mistaken. The problem, as Gilbert and company have come to discover, is that we falter when it comes to imagining how we will feel about something in the future. It isn't that we get the big things wrong. We know we will experience visits to Le Cirque and to the periodontist differently; we can accurately predict that we'd rather be stuck in Montauk than in a Midtown elevator. What Gilbert has found, however, is that we overestimate the intensity and the duration of our emotional reactions -- our ''affect'' -- to future events. In other words, we might believe that a new BMW will make life perfect. But it will almost certainly be less exciting than we anticipated; nor will it excite us for as long as predicted. The vast majority of Gilbert's test participants through the years have consistently made just these sorts of errors both in the laboratory and in real-life situations. And whether Gilbert's subjects were trying to predict how they would feel in the future about a plate of spaghetti with meat sauce, the defeat of a preferred political candidate or romantic rejection seemed not to matter. On average, bad events proved less intense and more transient than test participants predicted. Good events proved less intense and briefer as well.

Equilibirum or Downward Spiral? Election law superblogger, Rick Hasen, has a typically insightful analysis of the Estrada withdrawal on his Election Law Blog. I urge you to read Rick's post, which is much more upbeat about the implications of Estrada than my post from three days ago, Withdrawal: What Does Estrada's Decision Mean?.

Legal Theory Calendar

Saturday, September 06, 2003
Legal Theory Bookworm
    Introduction I've been experimenting with the content of legal theory blog on the weekends. Today, I'm trying out Legal Theory Bookworm--a brief introduction to a classic or contemporary work of legal theory. Because this is the first outing for the bookworm, I've chosen a classic text--indeed, the classic work of legal theory from the twentieth century, H.L.A. Hart's, The Concept of Law. H.L.A. Hart's importance transcends the greatness of his particular version of legal positivism. Hart had an enormous influence on the methods employed by legal philosophers, brining legal philosophy into the mainstream of analytic philosophy in the English speaking world.
    The Concept of Law I once had a conversation with a faculty member at a leading American law school, who asked me, "Should I read The Concept of Law?" I have to admit that I was shocked by the question. I had (naively) assumed that this book would have been read by every legal academic. After all, if it is not the greatest work of legal theory from the twentieth century, it is surely on the short list of leading contenders. Why is Hart's book so important? First, and foremost, it is a model of how to do legal philosophy. Hart's writing is model of clarity and precision. Second, and of almost equal importance, Hart developed a set of foundational ideas that have wide sway even today. Here is a brief catalog:
    • The distinction between primary and secondary rules, where a primary rule governs conduct and a secondary rule provides for the creation, alteration, or extinction of primary rules.
    • The idea of a rule of recognition, a social rule that permits the sorting of norms into those which are laws and those which are not.
    • The notion that legal rules have a core and penumbra, e.g. that rules have a core of settled meaning, but that there may be borderline cases that are neither clearly in nor out of the scope of a rule.
    And of course, there is much, much more in this important book. Many readers of the Legal Theory Blog have already read The Concept of Law, and I suspect that those, like me, who have read the book many times are not small in number. But if you haven't yet had the pleasure of reading this very great book, the legal theory bookworm commends it to you.

Download of the Week The download of the week is Philip Pettit's paper, Akrasia, Collective and Individual , which he presented on Thursday at the New York University Colloquim in Law, Philosophy and Political Theory. Pettit is one of the most important and interesting political philosophers working today. Here is a taste of his paper:
    Perhaps the most famous analogy in the history of philosophical argument is that which Plato draws in the Republic between the constitution of the city and the constitution of the soul. The analogy is justly famous, for it sheds light on many aspects of mentality and personhood. In particular, as I shall try to show here, the analogy — or at least something close to the analogy — sheds light on the nature of akrasia or lack of self-control.
And from the conclusion:
    The upshot of our discussion is tantalising. We have seen that groups, but only groups of a distinctively self-unifying kind, can manifest akrasia. And that observation has sponsored three fairly well-pointed lessons for the nature of akrasia in general. It argues that akrasia is not mechanical in character but supposes a capacity to recognise the demands of reasons and to regulate in the light of them. It supports an image of akrasia in which the the problem is not essentially a failure of the higher elements in a hierarchy to subdue lower elements but a failure among more or less equally ranked elements — equally ranked voices — to get their act together. And it suggests that akrasia is not exclusively action-centred in its manfestations, being a malaise that can affect the formation of judgment as well as the performance of action. None of these claims will prove irresistible, of course, but they should each make a serious claim on our attention.
Download it while its hot!

Colloquium in Honour of Christopher Taylor at Oxford At Oxford today, there is 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''.

Friday, September 05, 2003
Preview of Coming Attractions I've been experimenting with various weekend features. Tomorrow (Saturday), I post the Download of the Week and experiment with Legal Theory Bookworm, a short comment about a classic or contemporary work of legal theory. On Sunday, the Legal Theory Calendar rounds up all the workshops, colloquia, conferences, and lectures for the upcoming week.

Request for Help! Workshop Information Thanks to everyone who has sent in information about workshops, hither and yon. One of the features of legal theory blog is regular postings regarding workshops, colloquia, and conferences in legal theory, very broadly defined. If your law school, philosophy, economics, political science, or other department has a workshop or colloquium program, or a conference, distinguished lecture, or other event, that would be of interest to the readers of Legal Theory Blog, please email me. If there is a website with the schedule, just send me an email with the link, but if you have the information in another form (an email, a word processing document), I will post the schedule or advanced announcement on a new companion blog--Legal Theory Workshops. These postings of workshop schedules will supplement the new Sunday Calendar and my usual practice of blogging on workshops, lectures, and other talks on the morning of the day they occur. My email address is lsolum AT sandiego DOT edu. If you only have paper, you can send it to my snail mail address, listed on the sidebar to the left, towards the bottom. Thanks in advance for the help! This post will repeat frequently for the next few weeks--thanks for understanding.

Welcome to the Blogosphere Marginal Revolution is a joint venture of Tyler Cowen and Alex Tabarrok.

Welcome to the Blogosphere . . . to Rodger A. Payne, an International Relations scholar from the University of Louisville.

Globalization of the Judiciary at Texas Continues At the University of Texas, the UT Symposium on Globalization and the Judiciary continues from yesterday.

Call for Papers: Australasian Association of Philosophy (New Zealand)
    Australasian Association of Philosophy (New Zealand) 50th Anniversary Conference The 50th annual conference of the New Zealand branch of the Australasian Association of Philosophy will be held at Massey University, Palmerston North, Sunday 7 - Wednesday 10 December. Papers are invited on any topic in Philosophy. Offers of papers, including an abstract, should be sent to Dr Adriane Rini at: Standard sessions will be 90 minutes, with 45 minutes for the presentation of the paper, and 45 minutes for discussion. Shorter sessions (1 hour) can be arranged if necessary. Acceptance of papers is dependant on registration for the conference. A registration form will be available on the conference website early in September. Scheduled events: Sunday 7 December Registration (afternoon and evening), conference opening and President's address (evening). The President's address will be given by Professor Max Cresswell. Monday 8 December PBRF Question and answer session with Professor Stewart Candlish, Philosophy representative on the PBRF panel. Tuesday 9 December Plenary session, Professor Graham Oddie Conference dinner. Dr Rosemary Mercer, who was at the 1st conference in 1953 will give a short speech about it. Wednesday 10 December AAP(NZ) AGM 50th anniversary Professor Max Cresswell is collecting stories about the early years of this conference series. If you attended any of the early conferences and you have stories to share, contact Professor Cresswell at: Fees and accommodation: A conference registration form will be available on the conference website in early September. The website address will be announced on aphil-l. Conference fees - $100 full registration, $50 student registration. Bed and breakfast accommodation is available on campus for $50 / night. Bookings can be made using the conference registration form. Details of alternative accommodation will be available on the conference website. The conference dinner will be on Tuesday 9 August - $45 including a three course meal with vegetarian options, and some wine and non-alcoholic drinks. Any queries should be sent to the conference organisers: Dr Deborah Russell: Dr Adriane Rini: Dr Deborah Russell Lecturer in Philosophy and Philosophy Programme Coordinator School of History, Philosophy and Politics Massey University PO Box 11 222 Palmerston North New Zealand Ph: + 64-6-356 9099 x 7455 Fax: + 64-6-350 5662

Gore on Metaphors for New Technologies At Florida State today, Stephanie Gore does an internal workshop titled "Judicial(/Judicious) Use of Metaphors for New Technologies."

Thursday, September 04, 2003
Withdrawal: What Does Estrada's Decision Mean?
    Introduction Miguel Estrada has withdrawn from consideration for a position on the United States Court of Appeals for the District of Columbia Circuit. (See Byron York for why!) His withdrawal is the end of a long story that began with Estrada's nomination and speculation that he was a leading candidate for the first Supreme Court vacancy. In ordinary political times, Estrada would have been quickly confirmed. He is well-qualified for judicial office, and his public record reveals no disqualifying defects of character or intellect. Because both the President and a (bare) majority of the Senate are Republican, history suggests that a qualified judicial nominee would eventually be confirmed, unless (1) the Democratic minority could peel off some Republican votes, or (2) a powerful Senator was opposed to nominee as a result of a personal or political grudge. But past was not prologue. Instead, the Democratic minority adopted a filibuster strategy, and the Republican Majority was unable to muster the Democratic votes necessary to achieve the total of 60 required for cloture. Republicans floated a number of options for breaking the deadlock, notably (1) routine use of the recess appointments clause, and (2) the so-called nuclear option, the use of parliamentary maneuver to cut off debate with a simple majority. Although the Republican leadership gestured toward the nuclear option, in the end the Democrats prevailed and Estrada withdrew.
      What are the lessons of the Estrada nomination and withdrawal?
    It is, of course, too early to tell. The dice are not yet cast; the Rubicon is not yet crossed. The real meaning of Estrada will not be clear until and unless there is a Supreme Court vacancy in similar political circumstances. One case does not make a line of authority, and one defeated nomination does not constitute the custom of the Senate. Nonetheless, even at this early state, the Estrada withdrawal suggests that transformational processes are underway. The remainder of this post is my reading of the tea leaves.
    The Role of Ideology in Judicial Selection First and foremost, the lesson of Estrada is that political ideology is out of the closet as the primary factor in battles over judicial nominees. Ideology has ebbed and flowed as a factor in the judicial selection process. At some points in American history, ideology has played the leading role;especially when some great political controversy of the day was likely to be resolved by the Supreme Court. At other times, character and judicial philosophy, rather than political ideology, has dominated the judicial selection process. But the role of political ideology has never been more prominent or explicit than it has been during the Presidency of George W. Bush. And in large part, this prominence is due to Senator Charles Schumer, who has worked to rally the Democratic Senate Minority around the political ideology flag. Schumer fired the opening salvo of his ideological offensive in an editorial in the New York Times. Here is some of what he wrote:
      For one reason or another, examining the ideologies of judicial nominees has become something of a Senate taboo. In part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground. The not-so-dirty little secret of the Senate is that we do consider ideology, but privately.
      Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago. This ''gotcha'' politics has warped the confirmation process and harmed the Senate's reputation.
    And Schumer continued:
      [S]ince Judge Robert BorkÂ’s nomination was defeated in 1987 largely because of his positions on abortion, civil rights and civil liberties, ideology has played more of a behind-the-scenes role in nomination hearings. It would be best for the Senate, the presidentÂ’s nominees and the country if we return to a more open and rational debate about ideology when we consider nominees.
    Whether Schumer's elevation of ideology would succeed or fail was an open question when he wrote for the New York Times two years ago. The first lesson of Estrada is that Schumer has won the battle within the Democratic Senate Caucus. Ideology is now on the table. Prediction is perilous, but now that the Democrats have opened the door to open ideological warfare, it does seem unlikely that Republicans will choose to remain on the stoop if and when the tables are turned and they find themselves able to block a qualified Democratic nominee of good character whose ideology they find objectionable.
    Why Was the Republican Leadership Unable to Bust the Filibuster?
      It's About the Votes Stupid The best way to bust a filibuster is to get the 60 vote necessary for cloture. The Republicans simply didn't have the votes. Although Republicans have a bare majority in the Senate, when push comes to shove there are a few Democrats willing to vote with the Republicans on judicial nominees. But when it came to Miguel Estrada, the votes were simply not there. There arenÂ’t enough conservative Democrats. The moderates who might be persuaded to vote for cloture on a moderate Republican nominee were convinced that Estrada was not such a moderate.
      24/7 Won't Work The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn't the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. No modern filibuster has been broken by the 24/7 option. For more on this, see my post entitled Update on Filibusters.
      Recess Appointments If 24/7 is doomed, what about recess appointments? The President has the power to make recess appointments while the Senate is in recess. Can't the President simply use the recess appointments power to circumvent the filibuster? The problem with recess appointments is that they expire at the end of the next term of the Senate. This makes recess appointments unattractive to nominees, who may well find a temporary judicial office an unattractive career option. Lawyers are unlikely to want to spend a year or more away from their practice without the prospect of life tenure. Those who already hold judicial office may not wish to give up the security of the current seat for a temporary appointment. In an influential op/ed, Randy Barnett suggested that this problem might be overcome by appointing law professors or senior judges who are nearing retirement, but this suggestion does not seem to have moved President Bush. For my extended analysis of the recess appointments option and its long-term implications, see my post entitled Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.
      No Nukes What about the parliamentary option? Senator Robert Byrd pioneered the use of parliamentary maneuver to limit the filibuster. His technique is simple. As applied to the filibuster of a judicial nominee, it might work like this. A Senator moves to close debate on a judicial nominee. A majority votes for cloture. The chair rules that the motion has passed. The minority objects to the decision of the chair. Under Senate procedure, the chair's ruling can be appealed to the Senate, but is sustained if a majority votes to uphold the chair. Viola! The filibuster is over. That's so simple. Why hasn't the Republican leadership done that? Because the Minority can retaliate. The rules of the Senate require the voluntary cooperation of the minority for the Senate to carry on its ordinary business. If the minority were determined to against a Republican first strike, they could bring the business of the Senate to a screeching stop simply by calling for a roll-call vote on every unanimous consent motion. Of course, the majority could escalate further, by changing the Senate Rules to permit the leadership to control who takes the floor. But this would fundamentally transform the nature of the Senate. It would make the Senate function like the House, which at the level of parliamentary procedure is essentially an oligarchy. This change would diminish the power of every Senator except those who were high in the Republican leadership. For an extended analysis of these issues, see my post entitled Breaking the Deadlock: Reflections on the Confirmation Wars.
      The Flip Side: Democratic Acquiescence The story that I have told so far suggests that the Democrats are in the drivers seat, but that would be the wrong conclusion to draw. The Democrats can block nominations, but they cannot nominate. It is true that in theory the Democrats could try to block every right-wing Republican nominated for judicial office with the aim of forcing the President to nominate some Democrats and lots of moderate Republicans, but they have not pursued this tactic. Why not? I suspect that the answer has to do with the costs that this move would impose on the Democrats. If the Democrats tried to filibuster each and every Republican nominee, they could no longer argue that they were only opposing the most extreme nominations. The federal bench would begin to depopulate and the Republicans would be able to argue that Democrats were crippling the courts for partisan reasons. Moreover, mass filibusters would change the political stakes. When the Democrats are only filibustering a handful of nominees, the costs to Republicans of mass recess appointments or the nuclear option exceed the political benefits. But if the Democrats attempted a mass filibuster, that equation might change, with the consequence that Democrats would lose the ability to block any nominations. The reality is that the Democrats are allowing most judicial nominations to go through, that most of those who are confirmed are conservative Republicans, and that some of these, like Michael McConnell, are both very conservative and extremely able. For more on the role of ideology in judicial selection, see my post entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy
    Is the Filibuster of Judicial Nominees Now a "Custom of the Senate"? So the filibuster of Estrada seems to have succeeded. Here is one possible implication of withdrawal: the question whether the filibuster of judicial nominees is permitted by the customs of the Senate may now be settled. Although there was a bipartisan filibuster of Abe Fortas, that case was both unique and distinguishable from the Estrada case on the ground that a majority never attempted to break the Fortas filibuster. In the Estrada case, there were several cloture votes in which the motion to close debate gained a majority but fell short of 60 votes. Because the leadership did not employ the nuclear option, Democrats can now argue that it is now clear that the customs and rules of the Senate permit filibusters of judicial nominees. My take is that this conclusion is not yet set in stone. Estrada withdrew. The fight did not go to the bitter end. And the Republicans have not yet tried a variation on the nuclear option. The Senate Rules can be amended, and hence the rules could be amended to modify cloture in the case of judicial nominations. One proposal is for a gradually decreasing majority. The first cloture vote would require 60 votes, but then the number is reduced on subsequent votes until it reaches a bare majority. If a delay was required between votes, this would essentially create a time-limited filibuster. Of course, a change in the rules can itself be filibustered. But that is where the nuclear option comes back. The chair could rule that the rule which requires 66 votes to close debate on a rule change does not apply to itself. That is, the chair could rule that a simple majority can close debate on a motion to change the cloture rule as it applies to rule changes. Tricky, isn't it? And in fact, a gaggle of conservative law professors, lead by Doug Kmiec, have argued that the constitution requires that a Senate majority be able to change the cloture rule. I'm not sure Kmiec is right, but I'm not the judge of this issue. And neither are the courts. When it comes to this issue, the highest constitutional court is the Senate itself. Here is the bottom line. Unless the Senate leadership pushes hard for a rule change, it looks like the filibuster of judicial nominees has been entrenched as consistent with the customs and rules of the Senate.
    The Shoe that Did Not Drop Confirmation wars were big news in the Spring, but they have faded from the front pages with the lazy days of summer. Why? Because of the shoe that did not drop. Which shoe? Why William Rehnquist's shoe, of course. In the Spring it looked as if the Estrada skirmish in the Senate was just a warm up for the mother of all confirmation battles, which would have been triggered by a resignation from the Supreme Court. But the vacancy never materialized? Why not? Who knows! One factor may be the confirmation wars themselves. Another factor may be the BCRA case, to be argued next week--there is some indication that Rehnquist has a strong interest in the issues raised by the constitutional challenge to McCain-Feingold. Whatever the reason, the shoe did not drop. And when the shoe did not drop, the stakes did. When the Estrada, Own, and Pryor filibusters were viewed as the early skirmishes in the war over the balance of power on the United States Supreme Court, the stakes were very high indeed. But if you think of the stakes as three seats on the Courts of Appeal, high political drama is transformed into low political farce.
    The Downward Spiral of Politicization or Equilibrium? If you have followed this blog since the early spring, you know that I have been arguing for some time that the confirmation wars are symptomatic of a downward spiral of politicization. I don't want to exaggerate. There have been intensely political struggles over the judiciary in the past, but both the public record and my private conversations with those directly involved convinced me that the trend for the last two decades or so has been towards increased politicization of the judicial selection process. The whole story includes filibuster of Abe Fortas, Democratic defeat of Carswell, Haynsworth, the Bork and Thomas nominations, Republican obstruction of Clinton's nominees, leading to the filibuster of Estrada, Owen, and Pryor. Now that Estrada has withdrawn, we might ask the question: have we reached the bottom? If we have, then it seems to me that the next move would involve some resolution of the remaining controversial nominations. Perhaps, a deal might be struck, involving some horsetrading. Owen and Pryor withdraw, but Janet Brown is confirmed--or vice versa. Perhaps, the Republicans soldier on, with nominations dying a natural death at the end of the Senate's term. This pattern could continue until the balance of power or the control of the Presidency shifts. Most nominations are confirmed, but the most skilled and ideologically conservative candidates do not make it through. But there is another possibility. We may not have reached the bottom of the downward spiral of politicization. If the Republicans intend further escalation, it is obvious that they are waiting for some triggering event. What might that be? Perhaps, a filibuster of Janet Brown. Perhaps, the next Supreme Court vacancy. On the question whether we have reached a stable equilibrium in the judicial selection game, I simply do not have any definite opinion other than, it is too soon to tell.
    The Path Not Taken The judicial selection process has become politicized. If that trend continues, it seems likely that judges will be selected on the basis of their political ideology rather than their character. In current political circumstances, this means that judges will be come from a band that starts in the political center and ends well short of the far right. If the Republicans were to gain 60 votes in the Senate (likely 55-56 Republicans plus 4 or 5 conservative Democrats), then we would expetct a shift to the right. If the Democrats were to regain control of the Senate, we would expect a shift towards the center. You can imagine the remaining permutations. But here is the thing about ideological selection of judges. If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine. Moreover, ideological judges are not likely to possess what I call the judicial virtues. And in particular, ideological judges lack the virtue of justice--the dispositon to decide according to law and to avoid the temptation of using judicial power to remake the law as one wishes it to be.
    The path not taken leads to legal formalism. There is an alternative to the selection of ideological judges whose political orientation reflects the balance of power in and between the Presidency and the Senate. That alternative is to select judges who are legal formalists, who decide the cases before them on the basis of the rules laid down. If political conditions are right, then both parties have good reasons to support the selection of formalist judges. Of course formalist decisions have political implications, but the political tilt of formalist judges is simply a reflection of the political history that leaves its traces on the Constitution, statutes, and precedents that a formalist judge respects and attempts to follow in good faith. And formalist judging produces a very great benefit--the rule of law. For more on this, see my post titled A Neoformalist Manifesto.
    Can the Bell Be Unrung But is it too late? Have we moved so far down the spiral politicization that it is impossible to turn back? At this stage in the game, it seems unlikely that Democrats would trust a Republican nominee who presented herself as committeed to the rule of law. And given the Republican perception that the Democrats have unfairly escalated the confirmation wars, it seems unlikely that Republicans will forgo the opportunity to attempt to find confirmable candidates for judicial office who are committed to the political agenda of the right. Charles Schumer rang the bell and its peel has been heard far and wide. Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions. Can that bell be unrung? I wish that I could say "yes" with confidence, but alas, I cannot.

Sherry on Judges of Character Suzanna Sherry's paper, Judges of Character, is now available on Westlaw and in print at 38 Wake Forest L. Rev. 793 (2003). Here is a taste:
    For forty years, legal academics have been lost in a wilderness born of the countermajoritarian difficulty. Despite a two-century pedigree, we are still arguing about the legitimacy of judicial review and asking whether it is a curse or a blessing. Many of our most prominent constitutional scholars are mired in attempts to constrain judicial review so as to reconcile it with their idealized vision of a constitutional regime grounded in pure majoritarianism. None has succeeded. The few scholars who have attempted to move beyond the countermajoritarian difficulty face a different problem. As one scholar has argued, "[i]t takes a theory to beat a theory." Without a theory of constitutional interpretation--whether grounded in majoritarianism or in some other value-- there arises the fear that judicial review is, as the legal realists supposed, merely the ad hoc implementation of the judges' own values. Theories of constitutional interpretation are supposed to constrain judicial discretion and ensure that the rule of law will prevail over the rules of men. Unfortunately, no constitutional theory proposed so far is either an accurate description of how judicial review works in practice or a useful prescription for constraining judges. The theories provide, at best, a partial window into the American judicial soul. The task for post-countermajoritarians, then, is to provide an attractive normative and descriptive picture of successful judicial review. For those of us who are legal pragmatists, this means providing a positive description of how pragmatist judges do or ought to judge. This Article is meant to be a first step in that direction. Judicial review as an institution may be a blessing, but particular instances of judicial review can be less salutary. I try here to identify conditions that make it more or less likely that the exercise of judicial review will be beneficial. The key, I believe, is a very old-fashioned notion: judicial character.

Hegel at Oxford Today and tomorrow at Oxford:
    Hegel Society of Great Britain, Annual Conference: "Hegel and Social Theory" St Edmund Hall, Oxford, 4-5 September 2003 Speakers:
      Dudley Knowles (Glasgow) 'Hegel's Citizen' Micheal Rosen (Oxford) 'Freedom, Geist and History' Sean Sayers (Kent) "Self-Realization and Authenticity" Chris Ellis (Kent) `Hegel, Death and Sociality' Tim Hall (East London) 'Lukács: Societal Reification and Praxis' Heikki Ikäheimo (Jyväskylä) 'The Intersubjective Constitution of Individual Subjectivity in Hegel's Philosophy of Spirit.' Arto Laitinen (Jyväskylä) 'Recognition and the Structure of Action'. Adrian Wilding (Edinburgh) 'World Spirit as Endless Disaster: on the trials of Hegel's "Freedom".'

Pettit at NYU Phillipe Pettit (Princeton University, Politics) presents Akrasia, Collective and Individual at New York University Colloquim in Law, Philosophy and Political Theory.

Globalization of the Judiciary at Texas At the University of Texas, the UT Symposium on Globalization and the Judiciary starts today.

Call for Papers: Ethical, Legal and Social Aspects of Human Genetic Databases
    CALL FOR PAPERS The International ELSAGEN Conference: "Ethical, Legal and Social Aspects of Human Genetic Databases" will be held in Reykjavik, Iceland, August 25-28, 2004, jointly with the XVIIIth European Conference on Philosophy of Medicine and Health Care: “Genetics and Health Care”. The conference is organized by the Centre for Ethics at the University of Iceland, the E.U. bioethics project ELSAGEN and the European Society for Philosophy of Medicine and Healthcare (ESPMH). The local organization is headed by Prof. Vilhjálmur Árnason, Centre for Ethics at the University of Iceland ( Conference web site: Papers are invited addressing ethical, legal and social issues related to human genetic databases and biobanks, including the following topics: * Privacy of medical and genetic data * Consent in population genetics and biobanks * Genetic discrimination * Genomics, governance and democracy * Biobanks, population genetics and social justice * The public discourse on genetic databases, biobanks and human genomics * Concepts and methods in bioethical approaches to population genetics * The effects of human genetics on ethical frameworks * Social and historical contexts of genetic databases * Legal frameworks and problems concerning genetic databases and biobanks * Public perception of privacy and trust in relation to genetic databases * Population genetics, databases and public policy * Ethics committees and related institutions * Commercialisation and benefit-sharing * Genetic databases and human diversity * Databases for research * Databases and health service delivery Deadline for submissions is 31 January 2004. Papers must be submitted in English and must not exceed 2500 words including all notes and references. Please include a brief abstract not exceeding 200 words. Papers should be submitted in RTF or Word formats and sent as e-mail attachments to Papers must not have been submitted or accepted for publication elsewhere. Submitted papers will be refereed and, if accepted, published in the conference proceedings. Authors will not receive proofs and no revisions will be allowed after papers have been submitted. For further information contact Gardar Arnason (

Wednesday, September 03, 2003
Conference Announcement: Mind and Society
    Mind & Society 10, Manchester Metropolitan University, UK., September 10th - 12th 2003. Schedule:
      Wednesday 10th. 11.00-1.00 Charles Travis: 'Wittgenstein and 'the Human sciences'?' 2.30-4.00 Nadine Cipa: 'What did the Tortoise say to Achilles?' 4.30-6.15 John Preston: 'The Therapeutic Reading of Kuhn: a Critique' [+ short reply by Read & Sharrock] Thursday 11th. 10.30-12.30 John Dupre: TBA 2.00-3.30 Phil Hutchinson: Putnam and Natural Kind Semantics: Defence and Critique 4.00-5.30 Richard Menary: 'What's Wrong With The Extended Mind?' CONFERENCE DINNER Friday 12th. 10.30-12.30 Juliet Floyd: 'Wittgenstein, Quine and Privacy' 2.00-4.00 DEBATE: Dan Hutto and Wes Sharrock Vs. Guy Longworth and Mark Cain On Wittgenstein and 'Cognitive Science'. Conference ends.
    The conference is free to attend. For further information contact Phil Hutchinson: phil

Call for Papers: American Journal of Bioethics
    American Journal of Bioethics The American Journal of Bioethics (AJOB) provides a rapid, peer-reviewed collection of scholarship about emerging issues in bioethics. The Journal is available in a unique print and internet format. Subscribers receive access to the ajobonline portal, which features on-line news updates, live bioethics events, rankings of bioethics graduate programs, and other materials. E-ISSN: 1536-0075 Print ISSN: 1526-5161 Editor-in -chief: Blenn McGee, Ph.D.

New Weekend Features Every Saturday, Legal Theory Blog features the Download of the Week, a paper selected from all of those mentioned from Sunday through Saturday. And starting this Saturday, I will begin the Legal Theory Bookworm, a recommendation of a classic or contemporary work in legal theory, with a brief commentary. On Sundays, you will find the Legal Theory Calendar, a compendium of the workshops, colloquia, conferences, and lectures for the upcoming week.

Daar on Cloning Judith F Daar (Whittier College - Whittier Law School) posts The Prospect of Human Cloning: Improving Nature or Dooming the Species? (forthcoming Seton Hall Law Review) on SSRN. Here is the abstract:
    This article explores the moral, legal and practical justifications for a ban on human cloning. From a moral perspective, cloning bans are analyzed under the framework of two competing moral philosophies, utilitarianism and deontology. From a utilitarian perspective, the potential benefits and harms of human cloning are weighed to assess whether the technique would produce a balance of human happiness. The utilitarian analysis reveals the potential for human cloning to fulfill the unmet reproductive needs of many individuals, while causing minimal harm, may render a ban on the practice morally unjustifiable. Using a deontological construct, a cloning ban could likewise be seen as not morally justifiable because it would prevent human beings from fulfilling a moral duty to better understand the origins of human life. The article's legal analysis of human cloning bans raises serious concerns about potential infringement of protected procreative liberties. If human cloning is viewed as a form of reproduction, it would warrant protection under long-established principles of reproductive autonomy. A state-sponsored ban could withstand judicial strict scrutiny only by supplying compelling reasons for depriving individuals this novel form of procreation. To date, perahps only concerns over safety and efficacy supply this rationale for governmental infringement, but there seems far less justification for denying inroads in reasonably regulated research involving human cloning techniques. Moreover, current state anti-cloning statutes can be criticized for containing impermissibly vague language in violation of the 14th Amendment Due Process protections. From a practical perspective, any current or future ban on human cloning is unlikely to halt ongoing progress in the field of somatic cell nuclear transfer. Reported progress in animal cloning and clandestine experimentation in human cloning reveal that cloning is a "genie out of the bottle" phenomenon deserving of responsible regulation rather than reactionary prohibition.

More Moore has an interview with Judge Roy Moore. Here is a taste:
    ZAHN: Your own attorney general suggested that perhaps you view yourself as above the law. MOORE: Well, you've got to consider what the law is. And that's the problem. Many people think that what a judge says is law. Indeed, judges can't make the law. Judges, just like anybody else, are under the law. That's why we have rule of law. That law is the Constitution of the United States. And the Constitution of the United States is very clear in saying that Congress shall make no law respecting an establishment of religion. When a judge, a federal district judge, says, I don't know what the words mean, but this is what I think they mean, he's entering into a lawless order when he enters the fact that you can't acknowledge God in your Constitution. And that's what happened. I'm not defying the law. I'm upholding the law.
And check out this post by Brian Leiter.

Congratulatons to Chris Bertram His book, Rousseau and the Social Contract, has been published in the UK. And while your at it, you might check out this post by Chris on Leon Trotsky.

Tuesday, September 02, 2003
Kenneth Culp Davis Kenneth Culp Davis, one of the most influential administrative law scholars of the past century, has passed away at the age of 94. Although Davis was an active scholar at an age when most have turned to more leisurely pursuits, his influence was most strongly felt in an era before the Internet had reached into every faculty office and even before the dominant influence of Westlaw and Lexis/Nexis. Nonetheless, Davis's influence continues, with more than 50 articles citing his work in with 2003 publication dates on the Westlaw JLR database and about 2000 overall. Davis was one of the last of great treatise writers, and although the tradition continues, it no longer has the meaning today that it did when giants like Wigmore, Corbin, Williston, and Davis walked the earth. I never knew Davis, but early in my career I heard stories about him. I gather that he had an indomitable spirit.

Bryson Interview William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit is interviewed by Howard Bashman on his monthly 20 questions with an appellate judge feature. Link here. Bryson gives incisive answers to smart questons. Read the whole thing, after this taste:
    The Appellate Rules Committee has proposed to require all circuits to allow citations to opinions designated as nonprecedential, although the Committee has stopped short (for now) of requiring courts to give those opinions precedential weight. Obviously, this amendment will require a change in our rules to permit citation of nonprecedential opinions if it is adopted, but it will not require us to alter our practice of issuing nonprecedential opinions in appropriate cases and declining to give those cases precedential weight. Whether the present proposal will prove to be merely a first step along the path to abolition of nonprecedential opinions, as some would like, remains to be seen. When I was in practice, I hated nonprecedential opinions, and I can understand why lawyers dislike them. A losing lawyer hates to return to his client with a large bill and a short nonprecedential opinion, or worse yet, a one-line judgment order. In addition, such dispositions make it even harder to get en banc or certiorari granted than it already is. Even winning lawyers don't like nonprecedential opinions, as they seem to denigrate the significance of the lawyer's achievement and leave the lawyer with no trophy to point to in the Federal Reporter. Also, virtually every lawyer (including me when I was in practice) has a story about having found a perfect precedent in a case, or a perfect case to create a circuit conflict, only to discover that it was embodied in a nonprecedential opinion and therefore lay tantalizingly out of reach. There is also the dark suspicion among some lawyers that courts use judgment orders to bury cases that, for some reason, they don't want to have to address in the light of day. And then, in favor of making everything precedential, there is the argument that if a court is not willing to live by the rule of precedent, it is necessarily abandoning the principle that like cases should be treated similarly and thus surrendering to a regime of arbitrary decisionmaking.

The United States Court for China? Teemu Ruskola (American University) has posted Law's Empire: The Legal Construction of 'America' in the 'District of China' on SSRN. Here is the abstract:
    In 1906 the U.S. Congress passed "An Act Creating a United States Court for China and prescribing the jurisdiction thereof." The new court, equivalent to a federal district court, assumed civil and criminal jurisdiction over American citizens within the "District of China" which in turn was coincident with the Empire of China. Appeals from the court were taken to the Ninth Judicial Circuit in San Francisco, with further appeals to the United States Supreme Court in Washington, D.C. Expanding its original mandate, the court eventually construed its jurisdiction to include not only American citizens in the District of China but also American "subjects" from the Philippines and Guam, and in some cases American citizens who had never even been to China. The law applied by the court consisted of a melange colonial common law as it existed prior to American independence, general congressional acts, the municipal code of the District of Columbia, and the code of the territory of Alaska (parts of which continued being applied in China even after they were repealed in Alaska), to mention only the main sources of the court's jurisprudence. The court had only one judge, and when he was away (either riding circuit in the cities of Hankow, Tientsin, or Canton, or being investigated for official misconduct in Washington), prisoners sometimes had to wait for months for a trial. Indeed, virtually the only federal law that did not apply in the District of China was the United States Constitution: there was no right to a jury trial nor to constitutional due process, for example. This may all sound rather like a chapter from Alice in Wonderland - the kind of befuddled jurisprudence one might expect to emerge from the courtroom of the Queen of Hearts, not from a court of the United States. Yet the above description is in fact a brief summary of the jurisprudence of the American extraterritorial court in Shanghai, known simply and immodestly as the "United States Court for China." It operated for several decades, and was not abolished until 1943. Even among its contemporaries, the court was not well known; from time to time, Congress itself forgot about its own creation. Those who became aware of the court's existence were as startled and intrigued as today's observers. A central goal of this Article is to rescue the U.S. Court for China from such oblivion. Although the court was likely "the strangest federal tribunal ever constituted by Congress," it remains little known among legal scholars and China specialists alike, both in the United States as well as in China, and its jurisprudential and political significance remain almost entirely unexplored. In addition to its intrinsic historical significance, the court's functioning provides also a window into understanding the interaction between Chinese law and other legal systems. In the end, the story of the U.S. Court for China is part of the much larger, still on-going story of the introduction of Western international law into China. The ultimate ground for the court's stunning jurisdiction lay in the claim that China did not qualify for full membership in the "Family of Nations," or Euro-American international society consisting of "civilized" states identified with their national legal systems.

The Value of Toleration, Religion, and Gay Rights
    Introduction Eugene Volokh posted on religion and toleration a few days ago--the kind of post that elevates the blogosphere. Although I am in complete agreement with Volokh's bottom line, that there are very good reasons to extend the value of toleration from religion to sexual orientation, I suggested that one aspect of his argument failed in a post entitled Volokh on Religion in the Public Square. My post emphasized the historical emergence of pluralism and the value of toleration from the Wars of Religion of the 16th Century, and in particular the idea that many (not all) religious perspectives that condemn homosexuality, affirm toleration of other religions for reasons that are internal to the religious perspective. One reason for affirming legal toleration of religion is the doctrine of free faith--which holds that coerced religious practice or belief cannot produce salvation.
    Volokh Responds Eugene has two very thoughtful posts that respond, here and here. In particular, Volokh writes, with respect to the free faith distinction:
      But I don't think that's enough of a distinction. After all, one classic Christian objection to homosexuality is that it's an abuse of the body that God gave one, and inconsistent with God's plan for how people should behave. Why doesn't the principle equally apply that "the individual must come to [abstinence from homosexuality]" -- itself a matter related to God's plan -- "through individual choice rather than coercion"? One possible response, as I'd mentioned before, is that the "must come to faith through individual choice" principle applies only to belief, not to action. But the Hindus break commandments related to action (no graven images, must observe the Sabbath) as well as to pure belief (not having gods other than the God of the Ten Commandments). In fact, a Hindu could comply with all the demands of his faith and still observe the Sabbath, in the sense of treating that day as special, just as a nonreligious Jew can observe the Sabbath by abstaining from work on that day (even if he can't fulfill the entire Commandment by actually treating the keeping of the Sabbath as an act of worship). But many conservative Christians wouldn't want the law to punish Hindus for disobeying even that Commandment. "The individual must come to [keeping the Sabbath] through individual choice rather than coercion," they would say. But, again, why doesn't that extend to "the individual must come to [abstinence from homosexuality] through individual choice rather than coercion"?
    Remember, we are discussing this issue from the point of view of someone who affirms a religious faith that condemns homosexuality. Volokh's argument must be directed at that point of view, and not the point of view of others (like me, for example), who do not condemn homosexuality on religious grounds.
    Shifting the Burden So does Volokh's argument work? Consider first, this crucial move (from near the beginning of the passage quoted above):
      Why doesn't the principle equally apply that "the individual must come to [abstinence from homosexuality]" -- itself a matter related to God's plan -- "through individual choice rather than coercion"?
    It is crucially important to recognize that by itself, this isn't an argument. It is merely a burden-shifting question. Let me rephrase Eugene's question:
      Given your comprehensive religious conception of the good, why don't you apply the principle of individual choice implied by the doctrine of free faith to the question of sexual orientation and conduct?
    The Action/Belief Distinction In the passage, I quoted above, extends his argument by considering one possible line of reply. Someone who believed that homosexual conduct should be criminalized on religious grounds might answer Volokh's argument by invoking the distinction between belief and action. Eugene then points out that religious practices are actions not beliefs. So the law could require that Hindus observe the Sabbath or even attend religious services, without directly coercing belief. True. The point of the doctrine of free faith in this context would be that requiring observance of the forms of religious worship does no good unless it is accompanied by belief.
    Stability But coercion of the forms of religious worship can do great harm to social stability--this is the lesson of the Wars of Religion. Because many individuals see themselves as having a transcendent interest in practicing their own religion and not be coerced to practice another, coercing religious practice can lead to serious problems of social instability. You must attend my church and go through the motions of worshipping my God!--these are fighting words. Do these same reasons apply to toleration of homosexuality--again, asking the question from within the religious perspective? Not necessarily. Those who affirm religiously-motivated prohibitions on homosexual conduct are likely to believe, as a matter of fact, that criminal prohibition of homosexual conduct is unlikely to lead to social instability. Quite the contrary, they are likely to believe the opposite--that legalization will lead to social instability, albeit of a far lesser magnitude than would coercing religious practice. These factual beliefs may well be wrong, but that is an empirical debate.
    Harm to Self In addition, those who believe that homosexuality is contrary to God's law are likely to believe that homosexual conduct is grievously injurious to those who engage in it and that these injuries can be prevented by external coercion. Personally, I have difficulty grasping this argument, but the idea is that, whether or not an individual, gay or straight, has the correct religious faith, they harm themselves by engaging in sexual conduct outside the realm sanctioned by God. (For some religions, this is a small realm indeed.)
    The Point I should end by being clear about my point. I am not arguing for the criminalization of homosexuality. My own belief is that criminalization is not only bad policy, it is morally wrong. Rather, my disagreement with Volokh is a very narrow one. I think that it is very unlikely that religious opposition to Lawrence or the broader policy for which it stands can be shown to be internally inconsistent with religious support for religious toleration. Volokh's recent posts touch on many points beyond the narrow one I have just explored. I urge you to read them in full.

Prakash and Yoo on the Origins of Judicial Review Sai Prakash and John Yoo's important article, The Origins of Judicial Review is just up on Westlaw and is available in print at 70 U. Chi. L. Rev. 887 (2003). Here is a taste:
    [A]cademics from both ends of the political spectrum have criticized the Rehnquist Court's exercise of judicial review. From the right, Judge Robert Bork attacks the Court's role in deciding issues such as abortion, and has called for a constitutional amendment that would allow Congress to override judicial decisions. From the left, Professor Mark Tushnet criticizes the Court's views on affirmative action and federalism, and has proposed the elimination of judicial review. Perhaps the most prominent recent critic, thanks to articles in the Harvard and Columbia Law Reviews, is Professor Larry Kramer. Following in the well-known footsteps of Professors Herbert Wechsler and Jesse Choper, Professor Kramer argues that the Supreme Court's effort to police the boundaries of national power is both unwise and unwarranted. But whereas Wechsler's and Choper's arguments were purely functional in nature--that the Supreme Court was better equipped and more needed for the job of protecting individual liberties--Professor Kramer boldly claims that the Constitution itself never authorized any judicial review of federal statutes. In a lengthy historical review, Professor Kramer insists that the Founders did not expect that the federal and state courts would be able to invalidate unconstitutional federal legislation. In 1787, Kramer claims, judicial review was too novel and controversial for it to be made part of our constitutional order without explicit and clear authorization. Because of the doctrine's novelty and controversiality, the Founders felt the need to explicitly sanction judicial review of state law in the Supremacy Clause. The Constitution's lack of a similarly clear and specific authorization for judicial review of federal legislation signals that such judicial review was never authorized. The unauthorized nature of judicial review not only undermines the Court's current federalism jurisprudence, it also renders Marbury v Madison without constitutional foundation. The assault on judicial review is flawed on three levels. First, the recent attack on judicial review ignores the starting point for all constitutional interpretation: the constitutional text. Like Wechsler and Choper, the most recent round of academic criticism ignores the manner in which the constitutional text authorizes judicial review and fails to establish that the text prohibits it. Using Professor Alexander Bickel's quarter-century-old critique of the textual foundations of judicial review as a foil, Part I of this Article lays out the various textual foundations of judicial review of federal and state legislation. Throughout Part I, we highlight the severe textual difficulties with the claim that the Constitution is not law for courts to interpret and apply. Second, recent arguments also disregard the Constitution's structure. Much of the recent attack on judicial review is really an effort to undermine judicial supremacy. The two issues, however, are quite distinct. A careful examination shows that the constitutional text and structure allow--indeed require--the federal and state courts to refuse to enforce laws that violate the Constitution. Nowhere do the constitutional text and structure, however, generally compel the other branches of government to accept the judiciary's readings of the Constitution in the execution of their own functions. Rather, each branch must interpret the Constitution for itself in the course of performing its own constitutional duties. Thus, the federal courts must determine the constitutionality of the federal statutes that they interpret and apply in cases and controversies properly brought before them. Similarly, the President must gauge the constitutionality of federal statutes prior to taking care that they are "faithfully executed," and both Congress and the President must determine the constitutionality of the bills that they consider before making them law. This approach to constitutional interpretation has been widely understood throughout our history, and continues to be well understood by at least some legal academics and historians today. Part II of this Article develops these ideas by making two structural arguments. To begin with, the written nature of our Constitution helps establish judicial review. A written constitution creates a structure in which the individual branches of government may not change its provisions unless acting through the specific procedures, established in the document itself, for amendment. Judicial review also arises from an understanding of the separation of powers as creating three branches of government that bear independent obligations to interpret and enforce the Constitution within their respective spheres. Third, there is a wealth of evidence that the Founders believed that the courts could exercise some form of judicial review over federal statutes. Dozens of delegates to the federal and state conventions understood that the proposed Constitution would authorize judicial review of federal legislation. Moreover, in pamphlets and in the popular press, commentators on the Constitution likewise wrote that such review would exist. Finally, in the early years of the new republic, both Congress and the courts understood that the latter could judge the constitutionality of the former's laws. In the face of this widespread consensus--which included both Federalists and Anti- Federalists--it is telling that no one from the founding era apparently ever denied that the Constitution authorized judicial review. Given the rather lopsided nature of the historical record, we believe that modern scholars who insist that the Founders never authorized judicial review of federal statutes are mistaken. In Part III of this Article, using primary and secondary sources, we present a comprehensive historical analysis of the original understanding of judicial review.

Monday, September 01, 2003
Welcome to the Blogosphere Welcome to Sapere aude, a blawg written by law students at the Indiana University, Indianapolis.

Donald Davidson Brian Leiter reports that the distinguished philosopher, Donald Davidson, died on Saturday, August 30, 2003. Davidson was a giant of contemporary philosophy. Davidson's work affected the very heart of contemporary philosophy in profound ways, and recently his work has begun to be cited with increasing frequency by legal scholars. (The JLR database has more than 200 articles citing his work.) If you are unfamiliar with Davidson's work, but would like to read something by him, I recommed his essay, The Very Idea of a Conceptual Scheme (1974). It is available in Inquiries into Truth and Interpretation, published by Oxford in 1984.

Bashman is Back How Appealling is back with a vengence! What a relief!

New Weekend Features Every Saturday on Legal Theory Blog, I recommend a download of the week. Here is the recommendation from this past Saturday, and here is the week before. On Sunday, I post the Legal Theory Calendar, a listing of workshops, colloquia, conferences, and lectures for the upcoming week. Scroll down or go here for this week's calendar.

Yoo and Ho on Terrorism John Yoo (U.C. Berkeley) and James Ho (who is listed as an independent, but is, of course, well-known those who follow happenings on the Hill) have uploaded The Status of Terrorists (forthcoming Virginia Journal of International Law) on SSRN. Here is the abstract:
    This paper identifies and analyzes two legal questions raised by the war against the al Qaeda terrorist organization. First, did the September 11, 2001 attacks initiate a war, or "international armed conflict," or was it only an act punishable under criminal law? Second, what legal rules govern the status and treatment of members of al Qaeda and the Taliban militia that harbored and supported them in Afghanistan? We argue that the United States is currently engaged in a state of armed conflict with al Qaeda, a multinational terrorist organization whose leadership declared war on the United States as early as 1996, and the Taliban militia, which harbors and supports that organization. This state of armed conflict justifies the use of military force by the United States to subdue and defeat the enemy, separate and apart from any ordinary law enforcement objectives that may also justify coercive government action against members of al Qaeda and the Taliban militia. To give legal recognition to the current armed conflict is not to confer upon members of al Qaeda or the Taliban militia the privileged status of lawful combatants. Neither group complies with the four traditional conditions of lawful combat long established under the laws of war and recognized by the Geneva Conventions. Members of al Qaeda and the Taliban militia have chosen to fight in blatant disregard for the laws of armed conflict and are, accordingly, unlawful combatants not entitled to the legal status of prisoners of war under the Geneva Conventions.

Elhauge on Monpolization Standards Einer Elhauge (Harvard) has posted Defining Better Monopolization Standards (forthcoming in the Stanford Law Review) on SSRN. Here is the abstract:
    Monopolization doctrine is currently governed by vacuous standards and conclusory labels that provide no meaningful guidance about which conduct is condemned. Current proposals to focus on whether the defendant sacrificed short-term profits in order to reap long run monopoly returns by excluding rivals also turn out to have no logical connection to whether the conduct was undesirable. The proper monopolization standard should focus on whether the alleged exclusionary conduct's ability to further monopoly power depends on the defendant improving its own efficiency, or whether it would do so by impairing the efficiency of rivals whether or not defendant efficiency were enhanced, permitting the former and prohibiting the latter. Under this standard, a defendant that has increased its own efficiency by investing in its intellectual or physical property should not have a duty to share that property with rivals, but has no privilege to discriminate by offering worse terms to rivals – or those who deal with rivals – since such discrimination is not necessary to support optimal ex ante investment incentives, and its success may thus depend not on increasing the value of the property and the efficiency of the monopolist, but rather on selectively impairing the efficiency of rivals. While existing doctrine on monopoly power is not as problematic, it too suffers from great ambiguities, including difficulty dealing with the ubiquitous pricing discretion of firms in modern brand-differentiated markets, vague references to a "substantial" degree of a power that itself only exists when substantial, and an underlying split over whether pricing discretion or market share is the underlying variable whose substantiality matters. This Article shows that proper economic analysis of how to judge the exclusionary conduct that must be causally connected to that monopoly power explains why monopoly power requires showing both (a) a market share above 50% and (b) an ability to either influence marketwide prices or impose significant marketwide foreclosure that impairs rival efficiency. This Article further shows that these proposed standards would not only provide a more coherent and desirable standard for guiding lower courts and juries, but better explain the actual pattern of Supreme Court case results.

Lemley on Standad Setting and Intellectual Property Mark Lemley (U.C. Berkeley) has posted Intellectual Property Rights and Standard-Setting Organizations (forthocming in the California Law Review) on SSRN. It goes without saying that Lemley is one of the premier intellectual property scholars in the world today. Here is the abstract for his paper:
    The role of institutions in mediating the use of intellectual property rights has long been neglected in debates over the economics of intellectual property. In a path-breaking work, Rob Merges studied what he calls "collective rights organizations," industry groups that collect intellectual property rights from owners and license them as a package. Merges finds that these organizations ease some of the tensions created by strong intellectual property rights by allowing industries to bargain from a property rule into a liability rule. Collective rights organizations thus play a valuable role in facilitating transactions in intellectual property rights. There is another sort of organization that mediates between intellectual property owners and users, however. Standard-setting organizations (SSOs) regularly encounter situations in which one or more companies claim to own proprietary rights that cover a proposed industry standard. The industry cannot adopt the standard without the permission of the intellectual property owner (or owners). How SSOs respond to those who assert intellectual property rights is critically important. Whether or not private companies retain intellectual property rights in group standards will determine whether a standard is "open" or "closed." It will determine who can sell compliant products, and it may well influence whether the standard adopted in the market is one chosen by a group or one offered by a single company. SSO rules governing intellectual property rights will also affect how standards change as technology improves. Given the importance of SSO rules governing intellectual property rights, there has been surprisingly little treatment of SSO intellectual property rules in the legal literature. My aim in this article is to fill that void. To do so, I have studied the intellectual property policies of dozens of SSOs, primarily but not exclusively in the computer networking and telecommunications industries. This is no accident; interface standards are much more prevalent in those industries than in other fields. In Part I, I provide some background on SSOs themselves, and discuss the value of group standard setting in network markets. In Part II, I discuss my empirical research, which demonstrates a remarkable diversity among SSOs even within a given industry in how they treat intellectual property. In Part III, I analyze a host of unresolved contract and intellectual property law issues relating to the applicability and enforcement of such intellectual property policies. In Part IV, I consider the constraints the antitrust laws place on SSOs in general, and on their adoption of intellectual property policies in particular. Part V offers a theory of SSO intellectual property rules as a sort of messy private ordering, allowing companies to bargain in the shadow of patent law in those industries in which it is most important that they do so. Finally, in Part VI I offer ideas for how the law can improve the efficiency of this private ordering process. In the end, I hope to convince the reader of four things. First, SSO rules governing intellectual property fundamentally change the way in which we must approach the study of intellectual property. It is not enough to consider IP rights in a vacuum; we must consider them as they are actually used in practice. And that means considering how SSO rules affect IP incentives in different industries. Second, there is a remarkable diversity among SSOs in how they treat IP rights. This diversity is largely accidental, and does not reflect conscious competition between different policies. Third, the law is not well designed to take account of the modern role of SSOs. Antitrust rules may unduly restrict SSOs even when those organizations are serving procompetitive ends. And enforcement of SSO IP rules presents a number of important but unresolved problems of contract and intellectual property law, issues that will need to be resolved if SSO IP rules are to fulfill their promise of solving patent holdup problems. My fourth conclusion is an optimistic one. SSOs are a species of private ordering that may help solve one of the fundamental dilemmas of intellectual property law: the fact that intellectual property rights seem to promote innovation in some industries but harm innovation in others. SSOs may serve to ameliorate the problems of overlapping intellectual property rights in those industries in which IP is most problematic for innovation, particularly in the semiconductor, software, and telecommunications fields. The best thing the government can do is to enforce these private ordering agreements and avoid unduly restricting SSOs by overzealous antitrust scrutiny.

Blogging from Philadelphia Wrap Up: The Role of Character in Judicial Selection
    It is Monday morning and I am back home in Los Angeles. While in Philadelphia, I didn't get to blog from Friday's session entitled Judicial Character and the Federal Appointment and Confirmation Process. The session was organized by Joseph Prud'homme, a graduate student in Politics from Princeton.
      Prud'homme presented a very interesting paper that focused on the changing role of federal district court judges, and the implication of that role change for our conception of judicial virtues Prud'homme's paper reminded me of Judith Resnik's classic and importaqnt article Managerial Judges (Get the Rand version here or search for the title on Westlaw or Lexis/Nexis for the Harvard Law Review version). Prud'homme didn't quite put it this way, but I would be inclined to say that the virtue that is key to successful managerial judging is judicial wisdom or phronesis. That is, a managerial judge needs the virtue of practical wisdom, the ability to see the legally salient features of pre-trial process and to accurately gauge the consequences of management decisions.
      Mark Tushnet gave a wonderful, carefully argued paper entitled Why Character Matters, although a more apt title might have been Why Character Doesn't Matter. Tushnet posited a series of hypothetical. One, for example, concerned an Assistant U.S. Attorney who loses a big case for bad reasons and then gets inebriated at a bar and inappropriately touches a waitress. Is this relevant to the question whether this attorney should be nominated or confirmed as a federal judge? Tushnet argues that this is not terribly relevant.
      My own paper, The Importance of Character in Judicial Selection was also on the program. I'll post a link to the paper when it goes up on SSRN. Keith Whittington provided excellent comments on all the papers.